A President Tries to Settle the Controversy Over File Sharing

Penn State’s Graham Spanier wants to make a deal with the music industry

In February, Graham B. Spanier sat before members of Congress and received a

clear, direct message from the lawmakers: Fix the problem of file sharing at colleges, or we’ll fix it for you.

Mr. Spanier, the president of Pennsylvania State University, has since become the college president with the highest profile on file-sharing issues. He has convened a panel of college administrators and entertainment-industry executives to come up with new approaches to the problem. He has overseen a crackdown on illegal file sharing at his own institution. And he has floated both conventional and unconventional ideas in the hope of forestalling new litigation and new legislation.

Right now Mr. Spanier is pursuing two very different tacks. One is a policy of tough enforcement: Penn State has already started monitoring its network for file-sharing activity and shuts down any it finds.

The other tack -- little more than a suggestion at this point -- is more radical and may reshape the debate on file sharing. Why not pay a record-industry-approved music service a yearly, blanket fee, Mr. Spanier wonders, and let students download songs as they please? Record-industry officials are skeptical, but say the idea is worth talking about.

But even so, the entertainment industry continues to turn up the pressure, both on college students who share copyrighted files illegally and on colleges whose networks the students use. Increasingly, record companies and their allies in the film industry are taking their case to the courts, the statehouses, and Congress, pressing for solutions that could affect not only the relationship between colleges and their students but also long-cherished understandings about intellectual property.

Varied Responses

For now, it is unclear how or when this struggle, with so much at stake for all sides, will be resolved. Downloading copyrighted song and video files without paying for them is enormously popular among students, with new file-sharing programs coming out all the time. Colleges’ responses to file sharing, meanwhile, are all over the map, for legal and technical reasons. Some have begun crackdowns, but many want nothing to do with attempts to police students’ online behavior.

The recording industry says that sales dropped by about $1-billion from 2001 to 2002, a decline they blame on file sharing. Keenly attuned to the economy, Congress is much more sympathetic to the entertainment industry’s concerns than to colleges’, Mr. Spanier says. “Higher education’s message -- about fair use, privacy, freedom of speech -- is a little more esoteric,” he adds, but it is one that he thinks he and other members of his committee on file sharing can convey.

So far, Congressional representatives are pleased with Mr. Spanier’s progress. Howard L. Berman, a congressman from California who has worked closely with the entertainment industry, has been impressed by progress made by the committee on file sharing.

However, after the committee decides on the best methods for dealing with file sharing, Mr. Spanier will have to persuade other college administrators to adopt those methods. “That may be the biggest challenge,” says Alec French, the congressman’s spokesman.

Mr. Spanier’s mission and ideas already have critics and supporters in academe. Albert J. Simone, the president of the Rochester Institute of Technology, says network monitoring would be fine with him -- as long as students understand that file sharing is against the law, that the university is patrolling the network, and that students caught would face discipline. As for subscribing to a music service, “it depends on the price, but that’s something worth exploring,” he says. “That certainly takes Big Brother out of the equation.”

However, some campus technology officials and technology-law scholars say Mr. Spanier’s proposals could create a whole new set of headaches for institutions and set precedents that threaten traditional academic freedoms. Besides, they say, some file sharing is legitimate. Students can use the same file-sharing systems to trade class notes and research materials, as well as songs that some musicians have released online with no copyright restrictions.

Blocking or examining network transmissions on the basis of content leads down a slippery slope, says Gregory A. Jackson, chief information officer of the University of Chicago. As for offering students legal forms of sharing movies or music, Mr. Jackson finds that an interesting solution, but one fraught with difficult questions: How much does the service cost? How long will the files last? Is the university responsible if students swap them?

Fundamentally, he says, these shouldn’t be higher-education issues. “I’m worried that we are heading down a path that will wildly complicate our lives, all to preserve something that is essentially archaic” -- the record companies’ existing business model of selling CD’s and tapes, he says. “Graham seems to have this crusade, which I don’t fully understand.”

Others think they do. Fred von Lohmann, a lawyer with the Electronic Frontier Foundation, says that the entertainment industry holds tremendous clout in Washington, and that power was on display when Mr. Spanier and other college administrators testified before Congress on file sharing. “The entertainment industries had been pressuring the university community, and they felt that they weren’t getting as much cooperation as they wanted,” he says. “So they engineered a hearing in which several university administrators were just short of publicly lashed.”

“The message was delivered loud and clear” -- and that message, according to Mr. von Lohmann, was: “You fail to address our concerns at your peril.”

Industry Connections

Mr. Spanier is more closely connected to the entertainment industry than most in higher education. Barry K. Robinson, a lawyer with the Recording Industry Association of America who sits on Penn State’s Board of Trustees, helped Mr. Spanier reach out to industry officials to set up the committee on file sharing.

The committee, Mr. Spanier says, was meant to deal with the perception that the entertainment industry and academe are at war. Indeed, the battles have been growing fiercer lately. The record companies just settled lawsuits against four students who had been running file-sharing services on university networks. More recently, The New York Times revealed that the record industry is working on programs that could be deployed to thwart file sharing, some by combing the Internet and attacking file-sharers’ computers -- many of them probably on college networks.

Most college lawyers continue to believe that the law says their institutions can’t be held legally responsible for what their students do online. But even so, the entertainment industry and academe have complementary goals, Mr. Spanier says. The entertainment industry wants to stop illegal sharing of copyrighted files, a goal many college administrators endorse because file sharing is a big drain on campuses’ computing resources. Academe, meanwhile, is interested in protecting intellectual-property rights, and especially in preserving and strengthening laws that cover fair use of copyrighted materials -- laws that could be threatened by any legislation aimed at shutting down students’ file sharing.

The record companies “would like to help universities engage in their legitimate business, if we could help them stop these practices that are decimating their industry,” Mr. Spanier says.

“We’re really much more on the same wavelength than it might appear.”

Mr. Spanier is enthusiastic about offering a legitimate alternative to illegal file sharing. Colleges and universities already pay for library newspaper subscriptions, dormitory cable television, movie screenings, music licenses for marching bands, and so on. If colleges and universities paid a “modest” annual fee for access to a file-sharing service, they “could turn what are now illegal activities into legal activities,” he says.

Student Demands

Such a service might find a warm reception in the student body. More than a dozen Penn State students at a recent university forum on file sharing said in interviews that the practice is rampant because the music industry simply has not offered what most young people want today: instant access to thousands of music files, downloadable song by song. That’s what services like Grokster, KaZaA, and Morpheus -- which enable users to share copyrighted music, movies, and other content over the Internet without paying the copyright owners -- offer, and it’s what Mr. Spanier’s proposal would offer as well.

Meanwhile, Apple Computer this month opened an online store offering 99-cent song downloads for users of its Macintosh computers. Unlike download options promoted by the record companies, the Apple service lets users copy and use the songs with only minor restrictions that are aimed at preventing the songs from being shared through file-sharing programs. The company set a goal of selling a million songs in its first month and met that goal in the first week.

Many students say they want a new business model for the music industry. File-sharing technology “finally allowed the consumer to take the power back,” says Justin J. Leto, a Penn State senior majoring in computer engineering. “As long as the record industry tries to control the market, the black market is going to dominate the discussion.”

Cary H. Sherman, president of the Recording Industry Association of America, says that setting up legitimate subscription services at colleges has potential, but that the offerings of those services would almost certainly fall short of what students can now find on KaZaA and its competitors. “Graham’s vision is KaZaA, but legal,” he says. But because there are so many artists with various contract stipulations, “the chances are, we won’t be able to do that.”

“But it’s worthwhile to start a conversation about it,” he says, adding that the music services and college administrators will meet to discuss prices and expectations.

However, he warns that a legitimate service will never get off the ground while KaZaA, Grokster, Morpheus, and other free services are still around. “If you don’t control piracy, the legitimate services can’t compete. If KaZaA is out there offering all the music all the time for free, why would people pay anything?”

Cracking Down

At Penn State, network administrators have begun using file-sharing software to identify students who are sharing files. Since the university started ferreting out such students in early April, it has given warnings to more than 200 others, telling them that if they’re caught violating copyrights again, they’ll lose access to the university network.

Many universities are reluctant to go looking for infringers on their networks, citing the Digital Millennium Copyright Act. The law says that a service provider is not liable for a user’s infringing activity if the service provider doesn’t know about it.

But Penn State recently began worrying about another portion of the law, one saying that service providers are not liable if they are “not aware of facts or circumstances from which infringing activity is apparent.” Penn State’s heavy bandwidth loads are obviously the result of file sharing, officials say, so the university can’t rely on the protections of the digital copyright act.

Like Penn State, other colleges have been adopting more-restrictive policies on file sharing. The United States Naval Academy, in Annapolis, Md., seized the government-owned computers of almost 100 students who were trading files on the academy’s network. An academy spokesman said many of the students were punished but not expelled.

This month, police officers at Ohio State University raided four dorm rooms and took computers that were used to run a file-sharing service on the university’s network. Ron Michalec, the chief of university police, said some of the students living in the dorm rooms could be charged with stealing state resources for their use of the network.

At the New Jersey Institute of Technology, administrators recently persuaded the Student Senate to pass a resolution supporting a ban on all file sharing on the institute’s network. The institute’s administrators feared lawsuits against their students similar to those filed in April against the four students at Michigan Technological and Princeton Universities and Rensselaer Polytechnic Institute. Says David F. Ullman, associate provost for information services and technology: “Once we identify applications of these technologies that are used for legitimate academic purposes, we will permit them, but the vast majority of uses violate copyright.”

He says there is a new digital divide among colleges -- those that understand intellectual property and take steps to protect it, and those that don’t. “Other universities should follow our lead, or get the student government to take proactive steps,” he says. “Universities have a responsibility to not only educate the students but also minimize that activity. We can’t turn our backs on it, and say that we are only providing the technology.”

Cautious Responses

However, it seems that most colleges are reluctant to clamp down so harshly. University administrators have mixed reactions to proposals like banning file sharing, monitoring fire sharing, or paying for licenses that would let students download as much music as they want.

Molly Corbett Broad, president of the University of North Carolina system, sits on Mr. Spanier’s file-sharing committee. She says that her university would be unwilling to monitor activity on the network. She’s intrigued by the idea of signing up for a music service, but would have to examine the details.

Frederick V. Moore, president of Buena Vista University, a small college in Iowa, says his institution would not monitor its network for content, and he has doubts about whether he would set up a music service to sate students’ appetites for file sharing. “I’d have to think about it,” he says. “I’m not sure that would be central the university’s mission.”

However, some who study copyright law and technology worry that Mr. Spanier is accommodating the entertainment industry too much and proposing policies that could have a detrimental effect on higher education and the Internet.

The pressure by the entertainment industry on colleges is “part of a much larger strategy” to force commercial Internet-service providers to monitor traffic, filter infringement, and terminate subscribers, says Mr. von Lohmann, of the Electronic Frontier Foundation. “A victory on the university level will no doubt be used as a precedent.”

What’s more, he says, Penn State’s administrators are misreading the Digital Millennium Copyright Act if they think the university should start monitoring the network. The law “very clearly states that there is no requirement to monitor,” he says.

Mr. von Lohmann says he has talked to technology companies that specialize in finding copyright infringement on networks, including one that boasted finding 9,000 cases at Stanford University alone. The burden of dealing with infringement notices will get worse if colleges start to take on the responsibility for monitoring traffic. “If universities want to contain their exposure on this stuff, they should maintain a hard line.”

“The recording industry would prefer to have other people doing their enforcing for them,” says Siva Vaidhyanathan, an assistant professor of culture and communication at New York University who is the author of Copyrights and Copywrongs (New York University Press, 2001), which examines copyright in the digital age. “Certainly, getting university administrators, who are a rather skittish lot, to do the enforcing works into their agenda quite well. ... University administrators are pressured to think about this issue in blatantly technical and financial terms” -- rather than legal and ethical ones.

To Mr. Vaidhyanathan, it is not clear that file sharing is entirely illegal or against the spirit of copyright law. “These students were sharing music with their friends, just as I did with Kiss records and Clash records when I was a kid,” he says. “This is nothing new. It just happens to be in a digital environment.”

Moves at Penn State and other colleges to shut down certain types of file sharing blatantly defy academic and intellectual freedom, he says. To replace existing file sharing with a licensed service glosses over a copyright issue that hasn’t been sufficiently explored in court. If the entertainment industry has a problem with a user, it should be the industry’s responsibility to sue.

“I would love it if the industries came to sue me,” Mr. Vaidhyanathan says.

“I’ve got several thousand MP3s sitting in a file open to the whole world through Gnutella. If they think that is a copyright violation, if they want to show that I came upon those files illegally, then let’s have that out.”

http://chronicle.com Section: Information Technology Volume 49, Issue 37, Page A27