“A Sensible Compromise,” an editorial published in the Harvard Crimson last week, described the actions of the MPAA in urging universities like Harvard to develop a “written plan to effectively combat the unauthorized distribution of copyright material by users” of the university network in compliance with the Higher Education Opportunity Act of 2008. The Crimson’s take, as suggested by the title, is that these actions and the law that supports them are reasonable and justified.

The evidence for the Crimson’s claim is shaky, based largely on two sweeping claims about intellectual property. The Crimson states as common sense that without an effective intellectual property regime, there will be no incentive for innovation.

But around the world there are well documented examples of innovation and creativity that function in the absence of strong copyright protection: the world’s second largest movie industry, in Nigeria, and the booming “techno brega” scene in Brazil were both documented in the documentary “Good Copy Bad Copy,” which is available for free online. And that’s to say nothing of all of the innovations that took place before the mid-1700s, the works of Mozart, Shakespeare, Michelangelo, and all the others that lived before modern copyright was developed. Lastly, enormous areas of creativity like fashion, cooking, comedy, and even magic tricks operate without copyright protection. Closer to home, the entire academic publishing system functions without authors retaining copyright for their works, instead exchanging their monopoly for the opportunity to publish. Copyright can certainly provide a motivation for entrepreneurs to create, but in light of these examples, The Crimson’s statement that the absence of IP laws would eliminate innovation seems unjustifiable.

The second overbroad claim in the editorial pertains to a concept called “moral rights.” “Intellectual property rights are important,” according to the Crimson, “because each person has a fundamental right to enjoy the fruits of his or her mental labor.” The fact is that that justification is not uncommon in parts of the world, but has no basis in American law. The Constitutional “copyright clause,” in fact, is the only right enumerated in the Constitution with an explicit purpose, and that purpose is incentivization: Congress may secure monopolies for creators in order “to promote the progress of science and the useful arts.” No less than Thomas Jefferson was uncomfortable with the “embarrassment” of monopolies, but conceded that as an incentive, they might be worthwhile. As a fundamental moral right? He never even considered it.

Finally, the editorial talks about the concept of “balance,” and then gets into a discussion of business models, debating whether the ones that exist today are convenient enough to remove the justification for piracy. This discussion is an interesting one, and has a place elsewhere, but let’s not confuse an economic argument with an ideological one. In the world’s premiere institution of higher learning—and truly, in any institution of higher learning—the balance isn’t a question of business models. Should Harvard University, at the urging of a media industry that presumes the students to be criminals, reduce the flow of information available to them?

The MPAA and similar organizations are comfortable to disregard the educational benefits that technology has brought us and to see the Harvard student body as a group of potential criminal freeloaders. One can sympathize with members of the movie industry which, in spite of consistently breaking annual box office records, purports to be having a hard time. And it’s certainly reasonable for a university to discuss what the legal and technical guidelines of its network ought to be. But it’s wrong to kowtow to the demands of a media industry at the cost of Harvard students’ technological autonomy.

As you undoubtedly know, college campuses are, in many ways, ground zero for the battles being waged for the future of intellectual property. The thousands of Americans that have been sued by the entertainment industry in the past few years include countless students who were accused of illegally downloading music.

Although the lawsuits may have stopped, the entertainment industry lobbyists are still set on using any means necessary to stop music “piracy” – oftentimes regardless of the unintended consequences. One of those efforts was included in a 2008 law entitled the Higher Education Opportunity Act which requires institutions of higher learning to take a number of steps to protect the business models of the entertainment industry.

Earlier this week, EDUCAUSE hosted a very informative webcast about how to comply with these P2P provisions. What follows is a summary and some thoughts on what students can do at their school.

The P2P Provisions

Gregory Jackson of EDUCAUSE outlined the requirements of the law. Essentially there are:

1. An annual disclosure to students that copyright infringement subjects them to civil and criminal liabilities, a summary of the Federal penalties for copyright infringement, and a description of the school’s policies for copyright infringement.
2. The development of plans to effectively combat unauthorized distribution of copyrighted materials, including educating the community, procedures for handling transgressions, and employing at least one technological deterrents (such as bandwidth shaping, traffic monitoring, vigorously responding to DMCA notices, and 3rd party commercial products).
3. Offer, to the extent practical, legal alternatives to P2P downloading, as determined by the institution.

There are some good pieces: the law is explicit in the individual autonomy and authority of schools in deciding the particularities of their plan (though it is obviously mandatory to comply); furthermore, none of these requirements should “unduly interfere” with the educational and research use of the network.

The Role of Students

Although this law, which in many ways turns our schools into private copyright cops for the entertainment industry, was largely crafted without the input of one of the largest constituencies – students – there is still room for us to be involved.

Schools have until July of next year to finalize their plans for compliance. There is a wide latitude for many of the provisions, oftentimes ranging from minimally objective to overtly troublesome. Administrators who may feel pressure to over-comply need to be reminded of the interest of their students in maintaining an open and enabling network.

Oftentimes, school policy-makers are happy to hear from students. At the University of Michigan, their innovative BAYU system (which alerts students they are uploading) was crafted with support of the student government and is very popular. This is a promising procedural and product model for other schools to examine.

Obviously, there are many worrisome parts of this law – privacy concerns due to network monitoring, stiffing of speech through the overuse of DMCA take-downs, and the high costs of compliance, to name three. Therefore, it is especially important that student voices are heard on this topic.

Reach out to the administrators and technologists on campus – they’re only an email away – offering your help and reminding them how important it is to get these questions correct.

[If you are especially interested in university network policy, be sure to get involved with the Open University Campaign's effort to promote open networks at schools around the world.]