Copyright lawyer tells universities to resist “copyright bullies”

Nate Anderson | Published: September 28, 2007

Wendy Seltzer, the founder of the Chilling Effects Clearinghouse and a former EFF staff attorney, gave a talk yesterday at Cornell (RealPlayer required) on “Protecting the University from Copyright Bullies.” The bullies in question are the RIAA, and the issue is the recording industry”s current campaign of both litigation and political pressure. Should universities assist the music industry in identifying the “pirates,” or should they do everything in their power to resist?

The title of Seltzer”s talk gives the game away. She believes that the mission of the university is to promote academic freedom, research, the testing of boundaries, and the learning of personal responsibility by students and researchers. An open network facilitates such things; one that is filtered and used to watch the activities of its users does not, in her view, produced the sorts of effects that universities want.

The campus has become the latest battleground in the war on file-sharing. The RIAA has taken its fight to the halls of Congress, where it recently failed to secure some legislation that would have required colleges and universities to implement content filtering solutions on their networks and would direct the government to produce a list of the top 25 infringing schools. “Why Congress should be getting into the business of naming names and pointing fingers is beyond me,” Seltzer said.

The idea was shot down, but the RIAA has also embarked on an aggressive plan to sue thousands of college students into submission this year, and that plan continues to move forward. Universities, including Cornell, now routinely receive “pre-litigation” letters from the RIAA that contain only an IP address. The group wants universities to pass these letters on to students. The letters offer students the possibility of a several thousand dollars settlement or the more expensive alternative of going to court. If the letters don”t produce a response, the RIAA then files a “John Doe” lawsuit and obtains a subpoena to force the university to turn over the student information (some of these subpoenas were recently quashed on technical grounds). Once that happens, a specific lawsuit is filed against the student.

Seltzer hopes to encourage universities to start challenging these tactics, especially challenging the subpoenas on the ground that they pose an “undue burden” to the university. While cost is certainly one factor here, the “burden” that Seltzer is primarily talking about is the effect that complying with the subpoenas has on the university”s mission.

In her view, it makes universities take a stand as an adversary of students, since they are forced to turn over personal information shared with them only for reasons of education. It also curtails the openness of the university”s network.

One questioner asked whether the issue wasn”t complicated by the fact that students also live at the university; that is, the users of the network aren”t simply doing academic research, and massive copyright infringement is no doubt going on at most universities. Seltzer responded by pointing out that universities already deal with legal and law enforcement issues on a regular basis, and they generally do so without tracking or monitoring their students. For instance, underage drinking can be a problem on most campuses, but few or no schools install cameras or other devices to detect underage drinkers. Part of letting students grow up, she said, was taking a step back.

Normally, that would also mean letting students pay the penalty for their mistakes, but Selzer doesn”t believe that it is fair for a few students to be singled out for such draconian penalties while nothing happens to the vast majority of their peers. In addition to the severity of the statutory penalties for copyright infringement, there are the well-known evidentiary problems of linking an IP address to an individual.

It”s an interesting talk for those on both sides of the debate, but especially for those in university administration across the country who have to confront these issues on a daily basis.

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