Recent updates to the Higher Education Act of 1965 require colleges and universities to take a more proactive role in detecting and preventing illegal peer-to-peer file sharing and illegal downloads of copyrighted material. Exactly what the law will require of colleges and universities, though, has not yet been determined by the Department of Education.
Right here, right now
The University currently uses bandwidth monitoring, Chief Information Officer Michael McPherson said, to detect unusual activity that creates excessive network traffic. McPherson said the overall goal in bandwidth management is to “control the damage that might be done by a machine that is being used improperly.”
To prevent one machine from “swamping” the network, McPherson said, the Information Technology and Communication office caps the amount of network traffic that can go through dormitories at any particular time. Anything that goes over that cap would cause someone to intervene. As a result of monitoring, he noted, ITC sometimes detects a machine engaging in illegal file sharing.
“If we detect a usage of our network that is not consistent with our acceptable use policy, we would contact the person we believe is responsible for that machine,” McPherson said. “[We would] talk to them about how [their] usage is not consistent with University policy and ... make sure they understand the consequences.”
ITC does not, however, actively look for copyright infringement or illegal file sharing on the network, McPherson said, because the Digital Millennium Copyright Act states that Internet service providers are not responsible for any copyright infringement by their users. ITC is obligated, however, to assist copyright holders when they believe infringements have occurred on the University network, he said.
Copyright holders can issue a DMCA takedown notice to an Internet service provider, notifying the provider that they believe copyright infringement is taking place on the provider’s network. When this happens, McPherson said, ITC passes that information on to the person ITC believes is using the IP address in question. That person can either acknowledge having participated in copyright infringement and remove the copyrighted content from the machine or deny that he or she has done anything wrong, which would lead to correspondence between the accused person and the copyright holder.
The recording industry, for example, has sent Internet providers pre-litigation letters to pass on to people using IP addresses that have violated copyright, McPherson said. He added that such letters are used to encourage out-of-court settlements of what could otherwise become lawsuits.
McPherson added that when it comes to illegal file sharing or “stealing music,” ITC has not referred students to the Honor Committee in the past and does not plan to in the future.
“Honor violations are something we don’t get involved in,” McPherson said.
New law, new rules?
Under the new regulations being developed, the role colleges and universities play in monitoring illegal activity on campus networks may change.
The revisions to the Higher Education Act have been signed into law, but the Department of Education will determine how the law will be implemented, said Steve Worona, director of policy and networking programs for Educause, an association for people who run computers and networks.
The first provision of the revision, Worona said, requires every U.S. college and university to provide students with information about the litigious landscape of copyright infringement, including the policies and possible legal penalties specific to that college or university.
The second provision has two relevant parts, Worona said. The first requires every campus to develop a plan to combat infringement effectively; the second requires colleges and universities to provide legal alternatives to peer-to-peer file sharing.
Worona added that before the Department of Education establishes final regulations, it will be “engaging in negotiated rule making,” holding five or six public hearings around the country at which the department will “receive input from interested parties.”
The department will then release draft regulations and eventually issue the final regulations, Worona said. For these regulations to be enforceable by July 1 of a given year, he said, they must be issued by Nov. 1 of the previous year. As a result, final regulations will likely not be in place until July 2010, Worona said.
Worona added that the final regulations will likely give colleges and universities some flexibility in implementing the law.
“The plan is explicitly designed to give each campus the ability to come up with its own plan based on its own considerations — what it considers appropriate,” he said. “Everything Congress has written indicates a great deal of flexibility. It is now purely up to the Department of Education to determine how to interpret all of that.”
McPherson noted that for the University, the law “does appear to place responsibility on us to get more proactively involved in preventing copyright infringement.”
McPherson said the University’s main method of preventing illegal file sharing is education, noting that all first-year students are required to pass a responsible computing test before they can access their accounts. McPherson said he believes education is the most important response to the issue of file sharing.
“If the law requires us to take technical measures, we would comply with the law,” McPherson said. “Our preference would be to deal with this issue through education and community standards first.”
McPherson also said the Higher Education Act would likely make the University responsible for all students’ network use, regardless of whether they live on or off Grounds, but noted that will not become clear until the drafting process for the new regulations.
McPherson added that the University will be participating in the discussions about the implementation of the new regulations and will be tracking the development of the regulations.
Is Big Brother watching?
Although the University does not use software that monitors more than bandwidth usage, some colleges and universities use software that can track all applications run by IP addresses on the network.
Mary Hecht-Kissell, director of public relations for Exinda networks, a network appliances vendor, said her company provides traffic monitoring and bandwidth shaping technology to colleges and universities to “monitor traffic on campus networks so people know what it is that is traveling on the network,” adding that Exinda’s product “has the ability to detect whether anything is happening pertaining to peer-to-peer file sharing.”
Hecht-Kissell said when a campus network manager sees that illegal file sharing is occurring, he or she can identify what IP address is using the application and block it.
“IT staff at the school has a certain level of obligation to make sure illegal things are not happening on their network,” Hecht-Kissell said.
The goal of this software, Hecht-Kissell said, is to make sure a network runs efficiently. She noted that the software can tell when a certain IP address has logged in and what applications they are using and can even examine URLs accessed.
Hecht-Kissell said that though Exinda’s software closely monitors activity, it is not intended to be “spy” software.
“In no way are we trying to monitor the lives of the students and their choices in what they consider to be great art and recording,” Hecht-Kissell said. “It would be up to the university to set their own policy on how they want to handle that, our product could help them in determining inappropriate sites.”
First-year College student Marcus Hall expressed mixed emotions about various means of monitoring Internet traffic.
“I think that it’s important because we’re all using that network and there could be one computer misusing the network, so for purposes of security there’s validity,” Hall said. “Then there’s that invasion of privacy ... when you think about it, we are adults.”
Hall added that even if strict restrictions were put in place to prevent illegal downloads, some would likely find a loophole in the system.
McPherson said the University has no plans to implement software similar to Exinda’s, noting that the University’s current system “doesn’t care what you’re doing” and only monitors bytes per second.
“Anything that gets us into monitoring what people are doing with their networks makes us uncomfortable — we’re much more comfortable with educating citizens rather than something that involves software and active monitoring,” McPherson said.
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