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P2P File Sharing on Campus: The Battle Isn't Over

This month's column was triggered by a number of separate news articles that have come across my desk in the last two months. Taken together, they show, I believe, trends emerging in the battle that has been raging for years between the recording industry and higher education over student piracy of music and movies.

Exhibit 1: Kids Don't Want CDs Anymore
The Jan. 12 issue of the Economist magazine included a report on the music industry that contained the following anecdote. "In 2006 EMI, the world's fourth-biggest recorded-music company, invited some teenagers into its headquarters in London to talk to its top managers about their listening habits. At the end of the session the EMI bosses thanked them for their comments and told them to help themselves to a big pile of CDs sitting on a table. But none of the teens took any of the CDs, even though they were free."

Exhibit 2: People Aren't Buying CDs Anymore
The same article in the Economist pointed out that the music-recording industry is in trouble. In 2007 their sale of CDs, which in 2006 accounted for 80 percent of their sales, fell like a brick. In the United States, sales were down 19 percent. Even though paid digital downloads increased, the growth did not come close to making up for the lost revenue, and the growth of legal digital downloads appears to be slowing. The smallest of the major labels are struggling, and all of the majors have been cutting costs severely. Compounding the plunge, as artists receive less marketing, they seek alternatives, such as touring, merchandising, and independent distributors.

Exhibit 3: The Recording Industry Is Still Seeking a Legal Remedy
The Recording Industry Association of America (RIAA) still regularly sends letters to colleges and universities charging students with piracy and threatening legal action. The letters generally accuse Internet addresses of violation, request the institution to send them to the student assigned that address, and usually ask for $3,000 to $5,000 from the student to avoid a lawsuit.

From the nstitution's perspective the problem is that the student is presumed guilty even though it could have been another computer assigned to that address or another computer sharing the Internet connection or another student using the someone else's computer.

Resistance to these suits is beginning to emerge. In December 2007, the Oregon Attorney General filed an appeal in U.S. District Court calling for an immediate investigation of the evidence presented by the RIAA when it subpoenaed the identities of 17 students at the University of Oregon who allegedly infringed music copyrights. In January the University of Washington refused to pass 16 letters from the RIAA on to students until they can identify the students at fault.

Exhibit 4: Student Piracy was Exaggerated
In 2005, as part of stepped-up campaign combating the piracy of movies, the Motion Picture Association of America (MPAA) announced that 44 percent of the film industry's claimed $6 billion per year domestic losses to piracy were the result illegal downloads on college and university campuses.

In January of this year they announced, with some chagrin, that their earlier claim was incorrect and that the correct figure was more like 15 percent. The MPAA and RIAA have made extensive use of the erroneous figure to promote legislation that would transfer the responsibility--and cost--of preventing student piracy to colleges and universities.

Exhibit 5: The Recording Industry is Still Seeking a Legislative Remedy
In December 2007, the House Education and Labor Committee unanimously passed "The College Opportunity and Affordability Act of 2007" (H.R. 4137), which directs U.S. colleges and universities to plan for network filtering and for alternative music and movie download services. The House and Senate may consider that legislation as early as February 2008.

Exhibit 6: The Recording Industry Is Exploring Alternative Business Models
In December 2007, Nokia, a maker of cell phones, and the Universal Music Group, the largest in the recording industry, announced that they would offer unlimited free downloads of Universal music to buyers of certain Nokia phones. Universal will get a portion of the revenue from sales of the phones.

Exhibit 7: The Recording Industry is Broadening the Issues over Which It Sues
The RIAA has broken new ground in its battle to stem the tide. It has decided to sue people who rip tracks from CDs that they own to their own computer for personal use. In a December 2007 lawsuit against an Arizona man, the RIAA argued that it is illegal for someone who has legally purchased a CD to transfer that music into his computer.

This new hardline is in contrast to the older policy that is still on the RIAA Web site, as of this writing: "... Burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won't usually raise concerns so long as: The copy is made from an authorized original CD that you legitimately own [and] the copy is just for your personal use."

So What's the Picture After We Connect the Dots?
I see three trends important to higher education emerging:

1. The legal battles aren't over (Exhibits 3 and 7). Despite the fact that higher education has been more conscientious and concerned about the problem than many other segments of our society (Campus Computing Survey), our students will continue to be targeted by the RIAA. In a litigious world, campuses must have strong policies and procedures addressing P2P file sharing. Samples of the policies and procedures adopted by other institutions can be found at

In addition to the harassing letters the RIAA now sends to students, if they were to be successful in their contention that it is illegal for someone to transfer music from a CD they own to their own computer, it would have huge implications for the concept of "fair use." Those implications range from TiVo, which allows you to record a TV show to watch later at your own convenience, to photocopiers in our libraries. This court case should be on every university's radar screen.

2. The legislative battles aren't over (Exhibit 5). After years of characterizing college students as digital pirates and campus administrators as unconcerned, the RIAA and MPAA managed to insert language in "The College Opportunity and Affordability Act of 2007" that targets peer to peer (P2P) file sharing of copyrighted digital content, e.g. movies and music, on campus networks. While the language does not specify penalties, the intent and direction are clear. The recording industry wants colleges and universities to install filtering mechanisms on their campus networks that impede P2P file sharing. Unfortunately, installing filtering mechanisms may be costly and impede the many legitimate uses of P2P file sharing.

Colleges and universities need to work closely with their national organizations to monitor and influence pending legislation, such as H.R. 4137. Our legislators need to understand that P2P file sharing of copyrighted material is a broad consumer problem, not just a higher education problem. College students accounted for less that 4 percent of the 8,400 "John Doe" lawsuits filed by the RIAA in 2004 and 2005 for illegal downloading. Our legislators also need to understand that P2P has myriad legitimate educational applications.

3. That battle for the hearts and minds of the customer is over. The RIAA reminds me of Cervantes' Don Quixote, a would-be knight who mistakes windmills for giants in his quest to fight injustice and has become a metaphor of fighting for lost causes. The deal Universal struck with Nokia (Exhibit 6) is tacit admission that music has to be given away for free or close to free on the Internet (Exhibits 1 and 2).

But transitioning to new business models is a leap into the unknown, which the recording industry will make with great reluctance. Like any animal that is wounded and cornered, the recording industry will be aggressive and unpredictable. (See Exhibit 4.) They are fighting for survival.

The recording industry would do well to ponder the poem "Ozymandias" by Percy Bysshe Shelley:

I met a traveller from an antique land
Who said: "Two vast and trunkless legs of stone
Stand in the desert. Near them on the sand,
Half sunk, a shattered visage lies, whose frown
And wrinkled lip and sneer of cold command
Tell that its sculptor well those passions read
Which yet survive, stamped on these lifeless things,
The hand that mocked them and the heart that fed.
And on the pedestal these words appear:
`My name is Ozymandias, King of Kings:
Look on my works, ye mighty, and despair!'
Nothing beside remains. Round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away.

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