LIABILITIES
Copyright Infringement
Educate Your Students, Protect Your Institution
BY KENT WADA
Higher education has been the bull’s-eye in the war against digital piracy waged by the enter- tainment industry. Experiencing staggering losses, the industry saw a perfect target in college students: They demonstrate social expectations about obtaining free digital enter-
tainment, they spend time installing arcane software, and they have access to university technology that can
make file sharing convenient. In other words, they are willing to pay in risk and time rather than in dollars.
The Digital Millennium Copyright Act
Though several thousand individuals have been sued directly,
the larger copyright infringement battle has been fought
through thousands of intermediaries—colleges and universities—because of their status as Internet Service Providers
(ISPs) under the 1998 Digital Millennium Copyright Act
(DMCA). Among other things, the DMCA gives immunity
to ISPs for the infringing acts of their customers in return for
following a certain protocol.
For students in residence halls, where institutions do not
own or have control over student computers, the protocol is
minimal. Primarily, institutions need policies in place to ter-
minate repeat infringers. Actual practice is a different matter.
In recent years, institutions have evolved response frameworks that fit academic freedom
and privacy principles as well
as the local appetite for legal
risk in loco parentis. One common approach, far exceeding the
requirements of the DMCA, is
integrating claims of copyright
infringement into the student
judicial process. This approach
ensures that alleged infractions are
seen consistently in the context of
all student conduct matters and,
perhaps more importantly, are
treated as student life issues and teachable moments.
Additional approaches by higher education institutions
span the gamut from treating the situation as a matter entirely
between the rightsholder and the student, to protecting
students from the industry, to everything in between. The
rationales behind such actions include: preparing students for
life beyond the academy, respecting intellectual property, and
minimizing the legal risk and administrative burden.
The entertainment industry has always wanted higher
education to do more in the war on digital piracy, includ-
ing actively looking for infringing activity on institutional
networks. The legislative push by the entertainment industry
to insert new requirements into the Higher Education Act
(HEA) has, ultimately, systematized what is required by higher
education beyond DMCA requirements.
Higher Education Act Provisions
HEA provisions relating to digital copyright infringement,
variously referred to as “unauthorized distribution of copyrighted material,” “illegal downloading,” and “peer-to-peer
distribution of intellectual property” generally translate into
the following three requirements. An institution must:
• Develop and implement a written plan for the institution
to “effectively combat the unauthorized distribution
The entertainment industry has always
wanted higher education to do more
in the war on digital piracy, including
actively looking for infringing activity
on institutional networks.
of copyrighted material” using “one or more technology-based deterrents.”
• Periodically review and offer legal alternatives for digital
entertainment. Although the law was written at a time when it
was expected that commercial services aimed at colleges would
be employed, the environment has changed dramatically in
the last year with generally available services such as Apple
iTunes and Amazon’s video-on-demand service. EDUCAUSE
maintains a list of commercial services that institutions may
refer students to in order to satisfy this requirement.
