Home > Uncategorized > Fix it or we’ll fix it for you…

Fix it or we’ll fix it for you…

May 22, 2007

I noticed that Stanford University–of all places–was making a lot of very serious sounding noises about going after students who steal. (And for all of you in what Barlow calls his “Electronic Hezbollah”, I know you don’t like that “steal” word–the Stanford Provost’s statements of Stanford’s copyright policy blows right by fair use, etc., and calls a spade a spade–students use the university computers to steal.)

Given my very, very dim view of Stanford and what it usually seems to stand for, I began to wonder what was causing this conversion to the path of righteousness after, oh let’s say a decade or so of looking the other way.

Take a wild guess: Money. And not Google money, either. Federal money. Not even Google is prepared to compete with the federal government in terms of both largess and importance. Not to mention the fact that Google probably doesn’t want to be seen as competing with the federal government to help Stanford directly flaunt federal law. Copyright infringment is a crime, after all, punishable by–the Department of Justice. And the DOJ enforces another federal law that Google cares about a lot more that the Copyright Act. That’s called the Sherman Act.

So Stanford is actually taking a position that is not in Google’s interests. Amazing. But I’ll take it. I began wondering what was causing this sudden interest in getting tough on file bartering, and I stumbled on a piece of legislation that was recently introduced by Congressman Ric Keller called the Curb Illegal Downloading on College Campuses Act of 2007 (HR 1689).

This is a very interesting piece of legislation. First of all, it directs federal education funds toward developing a sensible approach to stopping illegal activity on college campuses. And one of the ways it gets at the issue is by focusing on misappropriation of bandwidth. Bandwidth which is, one way or another, funded by the federal government.

You see–when Corky and Muffy–our two friends from the burbs–go off to college or grad school and listen to the latest drivel from the Stanford madrassah (or, as Barlow says, the Electronic Hezbollah–damn, that’s catchy), they go back to their dorm rooms and feel really good about downloading illegal copies of someone else’s stuff. The problem is that not only are Corky and Muffy not paying for the recordings they steal, they are also using the university’s computer network to do it, and most of the time that computer network is paid for by federal money. And it’s also likely that Corky and Muffy are getting some form of federal student aid to sit on their duffs, clog up the university’s networks and steal music or films.

In case you haven’t noticed, I get REALLY cheesed about this.

So yes, I would like to put Corky and Muffy under the jail, I will admit that. But on the other hand, I’d much rather see the market rejiggered to make it so that Corky and Muffy don’t do the bad thing rather than do bad things to them.

How can that be accomplished? Tell it to the Invisible Hand. How can we get rid of the current externalities and use market forces to accomplish what civil lawsuits have failed to acheive? Essentially, the solution boils down to five initiatives:

Take a moral position
Make the university deal with the problem first
Don’t wait for DMCA notices
Make stealing unpleasant
Offer a legal alternative at a low cost (with no DRM)

Take a moral position
: Stanford’s Provost is very clear–downloading without permission is stealing. That’s university policy. Now go the next step–stealing is bad. State clearly that the university will not tolerate stealing. They do not want people who steal–aka theives–in their community, whether the theft is the labor of artists or a class ring. State clearly that the university will not be hoodwinked by faux arguments about privacy and anonymnity. If you look like you’re stealing, you will be investigated, and if you are found to be a theive you will be dealt with because the university will not tolerate theft. Say it. It will feel good. It’s got that Old Testament ring to it. There’s precedent, you’re covered.

Make the university deal with the problem first: The university is in the best position to deal with IP theft, particularly with downloading. Downloading is not like stealing some defense research that a professor is engaged in. Downloading is a continuous activity that is out in the open and can be spotted on the network. If someone is downloading many megagigs of data on a daily or hourly basis, flag their account. This stuff is not hard, people. Ask them what they are doing, and if it turns out they are stealing, cut them off the network, seize their computer, whatever your policy is–but do it. They are not entitled to access to jack. While students should not be punished without some reasonable level of due process appropriate to students in schools, there’s no reason to have a show trial, either. Downloaders are not a protected class–the university need not be shy about protecting its community. If the school finds students are stealing–kick their butts out of school, turn them over to the police, whatever the university would do in any other case of theft. If it were a university employee, I can guarantee you that it wouldn’t take much in the way of warnings to fire them for stealing. Students shouldn’t get treated any better.

Don’t Wait for DMCA Notices: It isn’t written anywhere that the university has to wait for DMCA notices to take action. The Stanford Provost’s warning wasn’t published because the school wasn’t sure there was stealing going on. They KNOW there is stealing going on, and they are not impressed by the “but it could be fair use” arguments of the artist-hating EFFluviati. Sure, it’s possible that someone who is downloading megagigs of bits every day is engaged in fair use activity, just like it’s possible that the Pussycat Dolls aren’t cheap eye candy for middle aged horndogs and really are “post-feminist scholars subverting the dominant paradigm of objectification by taking ownership of the terms and symbols of the whore and repurposing those terms and symbols in deeply empowering ways… you know, like by imitating the storefront prostitutes of Amsterdam.” Not likely, but possible. So does the university have to continue to humiliate itself by sticking to the unlikely as its moral guidepost? This path has caused universtities to end up on lots of highly publicized nasty lists and receiving embarassing questionaires from the Congress that all seem to be asking the burning question “Are you geniuses really that [freaking] stupid?” Lots of people–like alumni–read about it. Here’s the deal: Your copyright policies already admit you know there’s infringing activity going on. As I read the law (particularly 17 USC 512(c)(1)(A)(i)-(iii)), that admission probably disqualifies you for the safe harbor anyway. Don’t wait for the notices. Show some spine.

Make stealing unpleasant: It is important to acknowledge that clogging up the university network is not OK. No warm and fuzzies for Corky and Muffy. So first thing, send the students (and their parents) a bill for the bandwidth cost. You may have gotten down with the latest jive from the Stanford madrassah, and being a pirate is all supercool and freculture–but you pay the freight. You don’t get to steal the content AND get free bandwidth to do it with.

And it is here that HR 1689 goes a very interesting route. The language in the bill would require–REQUIRE–that proper uses of the network, such as for academic research, would be given a priority. Meaning that downloaders go to the back of the queue for bandwidth.

Of course, that assumes that there is a queue–which there won’t be if the “net neutrality” folk have their way. While I generally support the idea of net neutrality, I don’t support it at all when it comes to infringing behavior. And of course if you can’t distinguish who is doing what, you can’t use connectivity to fight piracy. I’m sure that’s just a coincidence that the EFFluviati are lining up behind net neutrality.

HR 1689 hits on the primary reason that downloading can thrive: All you can eat Internet access. If downloaders had to pay for Internet access on a metered basis, I wonder if they would be doing so much downloading. So if you put the academic research to the front of the network access queue and the downloaders to the back, not only would the student bear the risk of getting caught and having to pay for their bandwidth, their access could be limited so that they end up on a slow connection, preferably a VERY slow connection. I think this would be a very interesting thing to try as I think it will cause many to drop off the downloading tip.

Offer students a legal alternative at a low cost (with no DRM): If the university takes a stand on illegal downloading, it would be nice to seize upon that opportunity to drive students toward a subsidized or full rate music service. And that service really needs to be no-DRM so that it will play in the iPod, the music player of choice. Of course, Cdigix recently announced it was closing its 70+ campus music service, probably due to a lack of support on fighting piracy on the part of university administrations. The commercial reality is that no entrepreneur in their right mind is going to try to bring a college music service to market when colleges turn a blind eye to theft.

However, the commercial reality is also that most people use the iPod, and Apple has no interest in offering a subsidized version of iTunes. So realistically, offering a college service in WMA is a nonstarter. Not a reason not to have a vigorous anti-theft policy on campus, but a lost commercial opportunity.

I know, there are people out there who really believe that rather than permit Digital Service Providers to sell in unprotected formats, Apple should make the iPod interoperable. Right. That will happen the same day that Oracle gives SAP its code, lions lie down with lambs, my cell phone handset maker creates upgrades that will be backwards compatible with car chargers and Hell freezes over.

I commend Representative Keller for coming up with a market solution to drive reform of the university systems that feed piracy. Now it’s up to the universities to get out in front on the issue and show an example to their students, instead of lurking in the moral quicksand of the EFFluviati.

  1. May 22, 2007 at 12:22

    Your odd references to “corky,” “muffy” and the electronic hezbollah aside (I doubt I’m the only reader who doesn’t get it), you’re dead on. There is a bizarre sense of entitlement out there when it comes to this issue. I don’t get that either.


  2. May 22, 2007 at 18:58

    Thanks for that feedback, I clarified (I hope) those references. “Corky” and “Muffy” are my universalized kids from Encino or Beverly Hills High School(i.e., the burbs).


  3. June 3, 2007 at 15:37

    Thank you for a great article on this issue. I get very tired of reading blog posts and other articles supporting this form of theft under the guise of a distorted understanding (er . . MIS-understanding) of the doctrine of Fair Use.Steve Weaverhttp://musicrowlawyer.typepad.com


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