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Should Universities Crack Down on File Swapping?
Why They Should Resist Congress's Call And Fight for Students' Free Speech Rights

Tuesday, Mar. 04, 2003

Recently, Congress has been calling for universities to take a strong role in stopping students' peer-to-peer swapping of files containing copyrighted software, music, and movies. In support of their position, legislators have pointed out that, unless authorized by the copyright owner, such file swapping is illegal under federal law.

Indeed, under the No Electronic Theft Act (NETA), enacted in 1997, illegal file swapping is a federal felony, punishable with a prison term. Meanwhile, swappers also face potential liability under longstanding federal copyright statutes, and the more recent Digital Millenium Copyright Act (DMCA).

Yet file swapping is rampant among college students who - because of their need to download information for their classes - typically enjoy access, through the university, to high-speed computer networks. These networks allow students to download, store, upload, and exchange large audio and video files - and thus to file swap, if they so choose.

However, students may soon face penalties for swapping copyrighted files. And so may universities, if they continue to allow their networks to be used for such activities. Although they do not participate in the actual swapping of information, they might still be able to be held liable for "vicarious" and "contributory" copyright infringement (as Napster was).

Should universities therefore crack down on file swapping, in response to Congress's request? On the contrary.

Instead, universities should take the lead in mounting free speech and "fair use" challenges to the application of NETA and the DMCA. They should also take the lead in spearheading lobbying efforts that seek to achieve a more moderate legislative solution - one under which legal file swapping is plainly protected, and its parameters are clear.

Such legislation should create a number of safe harbors - carving out specific "fair use" exceptions from NETA and the DMCA. For example, there should be an express exception for allowing the downloading of files that contain only small portions of copyrighted material - samples of songs, or brief film clips, for instance.

Another exception might cover files exchanged for educational, not recreational purposes. There should also be express exceptions for files containing parody or satire that samples copyrighted material, and files that critically comment on the material contained within. Furthermore, any additional exceptions that would further universities' educational mission should also be considered.

Why File Swapping Limits Will Hurt Students' Free Speech

In an effort to work within current anti-illegal-file-swapping measures, universities have so far considered two major solutions. One is imposing download limits; the other is scrutinizing students' downloads. But each approach is deeply flawed. The first is a too-broad cudgel that will reach perfect legal activity, while interfering with students' education. The second is a privacy-destroying, speech-inhibiting scalpel that will never be able to make the correct cut between speech and crime.

The problem with a simple, content-neutral download limit is obvious: Such limits could prevent students who must download large files for class, or for their own study, from doing so. Like a limit on the number of books students can take out from the library, such a limit can only have the effect of impeding education.

But if anything, the file-scrutinizing approach is even worse. For one thing, it will inevitably inhibit free speech: When students know their school is nosing into their files, they won't feel as free to swap, even in legal ways, as they once did. For another, it will try to make a distinction - between legal and illegal file swapping - that even Congress and the courts have yet to clarify. There's even less hope that this distinction can now be accurately made by software programs or university administrators.

In theory, the basic legal doctrines are currently these: Files as to which the copyright owner has given permission, are always legal to swap. (For instance, open source software can always be legally swapped; it's called "open source" precisely because the owner has given up any legal claim to it.) In addition, some files can also be swapped without the copyright owner's permission, pursuant to the "fair use" doctrine.

But when exactly, does the "fair use" doctrine apply? That's the difficult question.

The "fair use" doctrine evolved in a simpler world - in which, say, a book review could quote part of a book, or a classroom lecturer could photocopy a small section of a copyrighted work to distribute to his or her students. Each of these acts is plainly "fair use." But what counts as "fair use" when it comes to file swapping?

Analogies to older protected acts of "fair use" - such as quotation and limited photocopying for educational purposes - provide only a partial answer. If a film student is swapping a file full of sufficiently brief film clips with another student in the same class, that is very likely to count as protected "fair use" (though it's still very much worth having a statute spell that out).

But how brief do the clips have to be? And what if the student samples longer clips, but next to each clip, adds his own comments? These are questions legislation might answer, but has not.

Students who fear expulsion, and know their school is monitoring their computer use, may tend to respond to uncertainties like these by not exchanging any film clips at all, even when the swaps would be class-related. If they do, then universities that scrutinize files will have betrayed and undermined their own educational mission. Rather than trying to navigate these uncertain waters, universities should press for Congress to clarify this area, with lists of illustrative examples of protected "fair uses," instead.

Asking Students' "Parents" To Turn Them In

Why should universities take up this cause? As noted above, they themselves are in danger. Moreover, it is the job of universities to protect their students.

Universities are supposed to take the place of students' parents - not of the government. They watch over young adults when their parents cannot. That's why they impose "discipline," not incarceration. That's why "probation," in the college setting, means that your grades are closely monitored, not that you have to wear an electronic cuff around your ankle.

Accordingly, universities often protect students from outside authorities - rather than turning them over to them. Indeed, sometimes the town (or city) police may never hear of student misdeeds because the university would prefer to address them internally. (Obviously, crimes such as murder, rape, and assault on campus are an exception, and should be handled, with universities' aid, by the police.)

That leads, then, to a few crucial questions: How serious a crime is illegal file swapping - swapping that's neither authorized by the copyright owner, nor protected by the "fair use" doctrine? And in light of its seriousness (or lack thereof), how should the university address it?

How Serious a Crime Is Illegal File Swapping, Anyway?

The central argument that illegal file swapping is a serious crime comes from an analogy that compares it to simple theft - that is, to going into a store to shoplift a CD by hiding it in one's jacket.

The analogy isn't quite fair, however - for unlike with shoplifting, the jury is still out as to whether illegal file sharing costs record (or movie) companies money, or whether the free promotion counterbalances the loss from the free listening (or watching).

Indeed, college students' file swapping, in particular, seems to provide better promotion than most, for students tend to be taste- and style-setters. Just as college radio has brought obscure bands to wide prominence, so too can college file swapping do the same.

Moreover even if file swapping were exactly like theft, I'm not sure universities should be in the business of enforcing the anti-theft laws, as opposed to their own disciplinary procedures.

Suppose, for instance, that a university were to find out that one of its students is a chronic shoplifter. A reasonable solution, from the university's position, might be to make the student pay the stores back, apologize to them, take a year off, and go into counseling - not to abandon the errant student to the police. Should the illegal file swapper necessarily face a harsher fate?

I would argue the answer is no, especially since shoplifters tend to know they're doing harm, while many college students who swap files reasonably believe they are not. Instead, they are aware that file swapping promotes the music that is exchanged, thus increasing demand at the very same time it may be cutting into it.

Moreover, students' file sharing habits, in general, tend to ensure that bands don't actually lose money. If a given student buys CDs - and concert tickets, and so on - after listening to music she likes, then she may figure there's little harm in swapping. It just allows her to sample, and then buy, a larger variety of music.

The same is true with movies. If a Lord of the Rings fan knows that he's going to see the next installment ten times no matter what, he may figure it does no harm for him to check out an early Internet bootleg too; indeed, his report may only increase his, and his friends' enthusiasm for the movie.

In sum, many college students don't believe they are causing harm when they file swap - and it's possible they may be right. That's all the more reason for their universities to refrain from treating them like criminal suspects, and to choose a more moderate response instead.

If universities must punish file swappers, they should do so internally, and only after making sure there is no "fair use" defense. They should also consider, as a mitigating factor, evidence that the student was using file swapping to augment - not replace - his or her purchases of CDs and movie tickets, and thus did little or no damage.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her first novel, Three, will be published in the U.S. in summer 2003 by Plume, in the U.K. by Bantam, and in French translation by Actes Sud.

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