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.]

Last Friday, TechCrunch posted an article provocatively titled, Did Last.fm Just Hand Over User Listening Data To the RIAA?. Based on a friend-of-a-friend tip, the piece alleged that Last.fm had “handed over” user data to facilitate the identification of U2 fans with leaked copies of the band’s forthcoming album, No Line on the Horizon. (This was before Universal Music Group copped to leaking the album and U2 started streaming it voluntarily.)

Within an hour and a half – midnight for the London-based Last.fm – the allegations were debunked. Employees responded to concerned readers directly,

“[Last.fm would] never personally identify our users to a third party.”

Last.fm’s reputation is saved, TechCrunch are lying liars, the RIAA still sucks, and then I found five dollars. Right?

Not quite. Last.fm, purchased by CBS Interactive in 2007, represents the tension driving this era in computing culture, a constant negotiation of value and privacy. I’ll enrich your database by telling you how many times I’ve rewound Las Mulas De Moreno today (five and counting) and you tell me about similar artists to obsess over tomorrow.

Billboard and Soundscan look like halfblind guesswork in comparison with the charts made possible by this kind of deep data collection. Last.fm’s revenue may draw largely from advertising but if they were to start selling custom data packages to interested corporations, would anyone stop scrobbling?

Like many FCers, I was initially so alarmed at the notion that Last.fm would “hand over” user data that I ignored the fact that Last.fm’s core operations are basically in a constant state of dry snitching on its users. Want to know who is listening to “Las Mulas”? Click the Listeners tab, and start crawling profiles for identifying information.

For some of us, this is reason enough to cease participation. In fact, several FC members have already begun brainstorming a non-commercial, decentralized alternative. Others propose ruining the data reported to Last.fm by deliberately spoofing the scrobbler software with falsified metadata.

But what about those FCers who use Last.fm, enjoy the services it provides, and accept its exchange of privacy for value? Do we demand they sacrifice this pleasure? To what end?

Rather than struggle against enjoyment of Last.fm, what if we were to maximize it? What would an enthusiastic embrace and exploration of a service like Last.fm reveal? Would we find its boundaries and be inspired to develop a successor with even greater capacity? Would it reveal new entrepreneurial opportunities that better protect user privacy without sacrificing the potential benefits of an enormous dataset?

Is this a positive, proactive, fanatic activism? Or surrender to an uncritical consumption?

BOOMBOX from Ely Kim on Vimeo.

Consider the case of YouTube, where thousands of people have been recently burned by spurious copyright claims. Every day YouTube users create and upload videos like the one above that incidentally infringe one or more copyrights. Quite often the videos – again, like the one above – are disabled because of a DMCA takedown notice. If the email we receive at YouTomb is any indication, these users rarely intended to flaunt the law or make a stand for free culture. Rather, they come to us confused at being disciplined for behaving in a way that felt ethically appropriate.

When large copyright holding organizations attempt to withdraw from popular web services, as Warner Music Group has done with both Last.fm and YouTube, they can no longer paint the users of those services as pirates, outsiders, or radicals as they once did with Napster and now do with the Pirate Bay. Instead, their withdrawal brands them perverse, confused, and out of step with widely accepted social practice.

What implications might this reversal have for the free culture activist?

Do we want those YouTube users to familiarize themselves with the arcane constraints of copyright law and the numerous variations we’ve made available? Or should the users be left alone and the regulatory institutions be compelled to struggle with a set of laws and expectations ill-suited to contemporary media ethics?

Imagine a free culture pro-activism that consistently supports, encourages, defends, and extends the everyday practices of users of services like Last.fm and YouTube. What might we gain through such radical participation?