P2P Provisions in the Higher Education Act Steve Worona sworona@educause.edu EDUCAUSE Annual Conference Orlando, FL October 31, 2008

Higher Education Opportunity Act of 2008 (HEOA) Introduced in Senate: June 18, 2007 The Reid surprise: July 19, 2007 (Thursday) Senate version passed: July 24, 2007 Introduced in House: Nov. 9, 2007 Senate language + “Plans” Detect? Prevent? Practicable? CTO? House version passed: Feb. 7, 2008 Long-distance arm-wrestling with RIAA/MPAA Conference report: July 30, 2008 Final passage, House+Senate: July 31, 2008 Signed into law: Aug. 14, 2008

What the Law Says

What the Law Says

What the Law Doesn’t Say The Secretary of Education shall, on an annual basis, identify (1) the 25 institutions of higher education participating in programs under this title, which have received during the previous calendar year the highest number of written notices from copyright owners, or persons authorized to act on behalf of copyright owners, alleging infringement of copyright by users of the institution’s information technology systems, where such notices identify with specificity the works alleged to be infringed, or a representative list of works alleged to be infringed, the date and time of the alleged infringing conduct together with information sufficient to identify the infringing user, and information sufficient to contact the copyright owner or its authorized representative; and (2) from among the 25 institutions described in paragraph (1), those that have received during the previous calendar year not less than 100 notices alleging infringement of copyright by users of the institution’s information technology systems, as described in paragraph (1). Each eligible institution participating in any program under this title which is among those identified during the prior calendar year by the Secretary pursuant to the above, shall (1) provide evidence to the Secretary that the institution has notified students on its policies and procedures related to the illegal downloading and distribution of copyrighted materials by students as required under section 485(a)(1)(P); (2) undertake a review, which shall be submitted to the Secretary, of its procedures and plans related to preventing illegal downloading and distribution to determine the program’s effectiveness and implement changes to the program if the changes are needed; and (3) provide evidence to the Secretary that the institution has developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.

What the Law Doesn’t Say Each institution of higher education shall, by January 15 of each year, thoroughly analyze its computer network, including its local area and internal networks, to determine whether it is being used to transmit copyrighted works, and either: (A) Certify that an analysis indicates that the institution’s network, including its local area and internal networks, is not being used to transmit copyrighted works, and that the institution has not received ten or more legally valid notices of infringement in the preceding year from owners of the infringed works or their authorized agents; or (B) Take affirmative steps, including the implementation of effective technology-based deterrents, to prevent the infringement of copyrighted works over the school’s computer and network resources, including over local area networks, and report the policy developed and the affirmative steps taken.

What It Does Say - 1 Annual disclosures to students Unauthorized distribution, including peer-to-peer, may result in civil and criminal liability Summary of Federal penalties for infringement Description of institutional policies including disciplinary actions

What It Does Say - 1 Annual disclosures to students Unauthorized distribution, including peer-to-peer, may result in civil and criminal liability Summary of Federal penalties for infringement Description of institutional policies including disciplinary actions Word-for-word from the Senate bill

What It Does Say - 1 Annual disclosures to students Unauthorized distribution, including peer-to-peer, may result in civil and criminal liability Summary of Federal penalties for infringement Description of institutional policies including disciplinary actions Word-for-word from the Senate bill We consider this benign Is there anyone not already doing something at least pretty close to this?

What It Does Say - 1 Annual disclosures to students Unauthorized distribution, including peer-to-peer, may result in civil and criminal liability Summary of Federal penalties for infringement Description of institutional policies including disciplinary actions Word-for-word from the Senate bill We consider this benign Is there anyone not already doing something at least pretty close to this? But then the House added…

What It Does Say - 2 Certify to the Secretary of Education that the institution Has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents Will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer

What It Does Say - 2 Certify to the Secretary of Education that the institution Has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents Will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer

What It Does Say - 2 Certify to the Secretary of Education that the institution Has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents Will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer

What It Does Say - 2 Certify to the Secretary of Education that the institution Has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents Will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer

What It Does Say - 2 Certify to the Secretary of Education that the institution Has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents Will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer

What It Does Say - 2 Certify to the Secretary of Education that the institution Has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents Will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer

What It Does Say - 2 Certify to the Secretary of Education that the institution Has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents Will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer

What It Does Say - 2 Certify to the Secretary of Education that the institution Has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents Will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer

Higher Education Opportunity Act of 2008 (HEOA) Introduced in Senate: June 18, 2007 The Reid surprise: July 19, 2007 (Thursday) Senate version passed: July 24, 2007 Introduced in House: Nov. 9, 2007 Senate language + “Plans” Detect? Prevent? Practicable? CTO? House version passed: Feb. 7, 2008 Long-distance arm-wrestling with RIAA/MPAA Conference report: July 30, 2008 Final passage, House+Senate: July 31, 2008 Signed into law: Aug. 14, 2008

Higher Education Opportunity Act of 2008 (HEOA) Introduced in Senate: June 18, 2007 The Reid surprise: July 19, 2007 (Thursday) Senate version passed: July 24, 2007 Introduced in House: Nov. 9, 2007 Senate language + “Plans” Detect? Prevent? Practicable? CTO? House version passed: Feb. 7, 2008 Long-distance arm-wrestling with RIAA/MPAA Conference report: July 30, 2008 Final passage, House+Senate: July 31, 2008 Signed into law: Aug. 14, 2008

What the “Managers” Say “Experience shows that a technology-based deterrent can be an effective element of an overall solution to combat copyright infringement, when used in combination with other internal and external solutions to educate users and enforce institutional policies.” “Effective technology-based deterrents are currently available…through a number of vendors. These approaches may provide an institution with the ability to choose which one best meets its needs, depending on that institution’s own unique characteristics, such as cost and scale. These include bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of accepting and responding to DMCA notices, and a variety of commercial products designed to reduce or block illegal file sharing.”

What the “Managers” Say “Experience shows that a technology-based deterrent can be an effective element of an overall solution to combat copyright infringement, when used in combination with other internal and external solutions to educate users and enforce institutional policies.” “Effective technology-based deterrents are currently available…through a number of vendors. These approaches may provide an institution with the ability to choose which one best meets its needs, depending on that institution’s own unique characteristics, such as cost and scale. These include bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of accepting and responding to DMCA notices, and a variety of commercial products designed to reduce or block illegal file sharing.”

What the “Managers” Say “Rapid advances in information technology mean that new products and techniques are continually emerging. Technologies that are promising today may be obsolete a year from now and new products that are not even on the drawing board may, at some point in the not too distant future, prove highly effective. The Conferees intend that this Section be interpreted to be technology neutral and not imply that any particular technology measures are favored or required for inclusion in an institution’s plans. The Conferees intend for each institution to retain the authority to determine what its particular plans for compliance with this Section will be, including those that prohibit content monitoring. The Conferees recognize that there is a broad range of possibilities that exist for institutions to consider in developing plans for purposes of complying with this Section.”

What the “Managers” Say “Rapid advances in information technology mean that new products and techniques are continually emerging. Technologies that are promising today may be obsolete a year from now and new products that are not even on the drawing board may, at some point in the not too distant future, prove highly effective. The Conferees intend that this Section be interpreted to be technology neutral and not imply that any particular technology measures are favored or required for inclusion in an institution’s plans. The Conferees intend for each institution to retain the authority to determine what its particular plans for compliance with this Section will be, including those that prohibit content monitoring. The Conferees recognize that there is a broad range of possibilities that exist for institutions to consider in developing plans for purposes of complying with this Section.”

What the “Managers” Say Indiana University: “Are You Legal” (education and enforcement) UMCP: “Severely restricts bandwidth for residential networks and blocks certain protocols” Audible Magic “identifies and blocks illegal sharing…while allowing other legitimate P2P uses” Red Lambda “is able to detect all P2P, OS file-sharing, FTP, IM, proxy use, Skype and application tunneling over HTTP, HTTPS, DNS and ICMP protocols”

The Timeline September-October, 2008 “Before the end of the year” 6 public hearings “Before the end of the year” USDE announces Neg-Reg areas February, 2009 Neg-Reg panels start meeting Summer-ish Neg-Reg panels finish NPRM’s start appearing November 1, 2009 Final rules published July 1, 2010 Rules take effect

Hear, Hear! Higher-ed speakers on P2P at 4 (5? 6?) MPAA/RIAA attended 2 hearings Pepperdine: Kate Hudson, RIAA (70K jobs) DC: Cue the choir Ginger Rushing: RIAA Matt Gerson: Universal Music Stewart McLaurin: MPAA The MPAA/RIAA talking points Have a policy Enforce the policy (“How many do?”) Block/filter (“The only way make policy work.”) Offer commercial alternatives

Doctor Don’s Excellent Adventure University of Maryland System 13 public universities 185,000 students (50,000 outside N.A.) Huge variation 2 research-only, grad students only 1 professional-schools only 2 adult-ed, non-resident Inner-city, suburban, rural, online No common approaches to Bandwidth/content management Commercial alternatives The big question from David Bergeron “We’ve heard that some institutions are ISP’s”

What to Do ’Til the Doctrine Comes Whether or not we know what it means, the law is now in effect Therefore, each campus must make a good-faith effort to follow the provisions That good-faith effort can take the Managers’ Report into account

The Timeline September-October, 2008 “Before the end of the year” 6 public hearings “Before the end of the year” USDE announces Neg-Reg areas February, 2009 Neg-Reg panels start meeting Summer-ish Neg-Reg panels finish NPRM’s start appearing November 1, 2009 Final rules published July 1, 2010 Rules take effect

Resources Department of Education EDUCAUSE http://www.ed.gov/HEOA http://www.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html EDUCAUSE Aug. 21 EDUCAUSE Live! with Terry Hartle http://educause.na3.acrobat.com/p91499948/ Memo from EDUCAUSE, ACE, AAU, NASULGC http://net.educause.edu/ir/library/pdf/epo0815.pdf “On Making Sausage” http://connect.educause.edu/display/47454 P2P resource page http://www.educause.edu/p2pfs