January 16, 2008

Correction and Clarification: Download a Song -- Lose Your Loan?

Posted by Larisa Mann at 1:59PM

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On December 2, 2007, Wiretap published a blog post in which I warned our readers about the implications of the part of the bill H.R. 4137 called "Section 494(A): CAMPUS-BASED DIGITAL THEFT PREVENTION" of the "College Opportunity and Affordability Act of 2007."

I suggested that the penalty for schools that failed to enforce anti-file sharing requirements would be loss of federal funding, increased school fees and the like.

After my December post, Wiretap was contacted by the office of the chair of the House Education and Labor Committee, Chairman George Miller (D-CA), (who approved that bill), arguing that the risks were far fewer than I suggested. The Deputy Communications Director Rachel Racusen wrote in an email to Wiretap on December 20:

" ... The fact is that these provisions would not cause any student or any school to lose federal financial aid, would not punish colleges, if illegal downloading happens on their campuses, would not require colleges to purchase any specific programs or legal downloading services, and would not ask colleges to report student violations."

Wiretap disagrees with the Chairman's office over whether the current language in the provisions threatens college funding. Wiretap argues that it could.

However, on further research and consultations with experts in the field, I should have said that schools could -- rather than would -- lose their funding. What we are dealing with here are the typical grey areas in legislative language. Wiretap is happy to make this correction and provide further clarification on what is at stake.

The question of how likely the loss of federal funding can happen is a question of politics, not legal requirements -- to understand what can potentially happen, we need to know who are the players and who has the power.

Wiretap deliberately chose to alert the public to the threat posed by this language since the anti-file sharing language is consistent with the aggressive campaign by the entertainment industry against college students. Our caution is especially driven by the fact that this anti-file sharing provision is in a college funding bill. If you are not planning to use college funding as a potential "stick" to enforce the law, why would you put it in that bill in the first place?

However, it is true that the actual language of this bill is vague about enforcement and doesn't mention penalties at all. So what is a reasonable penalty to expect?

One opinion on reasonable penalties comes from an organization seeking to benefit from this kind of requirement -- the Motion Picture Association of America (MPAA), whose Washington house counsel, Fritz Attaway, recently said to the Federal Communications Bar Association:

"When the government is subsidizing universities ... and it discovers that those universities are spending a lot of taxpayers' money to build digital networks that are being used primarily to allow college students to traffic in infringing content, I think it's perfectly legitimate for Congress to say, wait a minute, if we're giving you money, we don't want it to be used to help college kids infringe copyright."

So at least one of the powerful parties involved thinks withdrawing federal education funding is an appropriate penalty.

Back in the real world, what penalties actually exist for schools that fail to comply with a federal education funding law?

For more specific information, I contacted Gigi Sohn, president of Public Knowledge, familiar with Washington procedures on this issue. Sohn described the enforcement mechanism that always exists (when nothing else is named) -- college accreditation.

Sohn explained to Wiretap that schools receive accreditation from regional accreditation boards, and schools can lose their eligibility for Title IV Federal Student Aid, if they lose their accreditation. This could happen if they are found to be not following federal higher education laws. In other words, schools that don't comply could lose their accreditation, which would cause them to lose their federal funding.

What that means is that the Chairman Miller's office and Wiretap are not arguing about facts (can funding be lost or not), but rather about the likelihood of such dramatic punishment, if such a bill is passed. It may be that the drastic outcome of loss of Title IV Federal Aid eligibility over file-sharing is unlikely, but if that is the case, as Sohn commented in a phone interview, "Why bother having a law about it -- if you are not going to enforce it?"

Many beyond Sohn and the other advocates mentioned in the earlier piece were concerned about potential drastic penalties. The Chancellor of the University of Maryland, the President of Stanford University, the Vice President and General Counsel of Yale University, and the President of Pennsylvania University, (all members of the Joint Committee of the Higher Education and Entertainment Communities) wrote a letter against the inclusion of anti-file-sharing provisions saying:

"[I]t is our understanding that the consequences of the Secretary deciding that a targeted institution has failed to prevent illegal file sharing would be loss of Title IV student aid eligibility. Such an extraordinarily inappropriate and punitive outcome would result in all students on that campus losing their Federal financial aid-including Pell grants and student loans ... "

These university presidents, chancellors and lawyers, on a committee with the representatives of the relevant industries, all concluded that withdrawal of funding could be a penalty. We haven't been able to get a comment from them on whether they had any information beyond what Wiretap could find out about how loss of accreditation denies funding. But we can look, for further information, at the context in which this bill was created.

The larger context for understanding the section of HR 4137 on file-sharing is the recent campaign of the entertainment industry to control what happens on college campuses -- from lawsuits, threatening letters, and propaganda campaigns, these groups have been flexing their muscles against universities for the past five years. Why should we expect them to hold back from continuing the pressure to transform universities into copyright cops?

It is the role of the media to inform the public about issues that affect their rights, in this case to counteract the enormous pressure from organizations like the RIAA and MPAA. And pushback from the public can work: in June, similar language was floated in an earlier version of the bill, mentioning more specific penalties. In light of strong public opposition -- by both students and professors -- the orginal bill language was amended and made milder. In November 2007, the language about file-sharing reappeared, albeit with fewer specific threats. But why is it there, again, at all?

Universities are well aware of their obligations to educate students about copyright law, and if there are specific concerns with their ability or willingness to do so that should be a separate discussion. Vague copyright mandates should not be shoehorned into an education funding bill, especially when they open the door to drastic consequences for the affordability and accessibility of education.

--For further information, Public Knowledge has an update on this issue here.
-- Chairman of House Education and Labor Committee, George Miller's office has a fact sheet explaining their take on this issue.
--Educause, the leading education and technology organization, is covering it as well, with an action page to investigate.