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Something of a downer after watching Harry Potter and the Order of the Phoenix in 3D at the IMAX, and even more significant finishing the Deathly Hallows. More on that later.

Senator Harry Reid has introduced an amendment to Senate Bill 1642, which itself extends and amends the Higher Education Act. You can find it at thomas.gov in the Congressional Record for amendments proposed on July 17th; it’s called “Campus-based Digital Theft Prevention.” The text of the bill is reprinted below.

You can skip to the second “—” if you don’t want to read the whole text. ^_^

—
SA 2314. Mr. REID submitted an amendment intended to be proposed by him to the bill H.R. 2669, to provide for reconciliation pursuant to section 601 of the concurrent resolution on the budget for fiscal year 2008; which was ordered to lie on the table; as follows:

At the end of the bill, add the following:

SEC. 802. CAMPUS -BASED DIGITAL THEFT PREVENTION.

Part G of title IV (20 U.S.C. 1088 et seq.) is amended by adding at the end the following:

“SEC. 494. CAMPUS -BASED DIGITAL THEFT PREVENTION.

“(a) In General.–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 subsection (b)(2), 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.

“(b) Identification.–For purposes of carrying out the requirements of subsection (a), the Secretary 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).”.
—

This is not particularly good legislation. I don’t see a problem with 494(a)(1). (2) gets dicey. It implies monitoring by the universities, which has been discussed in many other areas- but as discussed previously here and elsewhere, universities shouldn’t be monitoring in that fashion. The least of the problems is that such monitoring would seem to cause institutions to lose OSP protections guaranteed by the DMCA. That’s practical. Much more significantly, in my opinion, is the serious breaches of privacy, trust, and academic freedom that I’ve mentioned before. I think we should be thinking of network traffic more like circulation records than like public activities.

And then we go to look at (3). A-ha. It mandates the use of technology based deterrents. First of course, this would also seem to hurt OSPs liability protections under the DMCA, which mention that any technological protection measures should be based on fair practice, industry standards, etc., and “do not impose substantial costs on service providers or substantial burdens on their systems or networks.” Yeah, that’s pretty much not taken into account at all. Of course, since they appear to be attempting to make universities more liable here, that might fully be the intent. And that’s just inappropriate. (For some reason, I’m struck with the image of Gomez addressing Fester in the Addams Family movie- “Dirty pool, old man!”)

Furthermore, the language itself is unclear. Besides the incredibly vague terminology, any technology-based solution will fail. Period. It’s a waste of money and resources that has the potential to negatively impact legitimate uses of copyrighted material. “But it’s just a speedbump, to make it harder for people to steal!” Whatever. I won’t quibble with your use of steal in this case, devil’s-advocate-me, but you’re on notice, even if the word “theft” is used in the title of the amendment. 😛 Be that as it may, people who are seriously causing harm will bypass any technological measure. Then hobbyists will bypass the technology and integrate their circumvention into their programs, which will be widely dispersed to everyone. We’ve seen that happen every time a new technological infringement solution is implemented. Congress, if you’re going to ever mandate a solution that has real costs in money and man hours, then wait until a technology has been proven. My guess is it won’t happen, but I’m willing to look.

And of course, the review is based on identification from “copyright holders.” By that, like the other list and letters I’ve discussed before, it’s almost certainly referring to the MPAA and RIAA. No wonder people are cynical. Honestly, those organizations aren’t doing themselves or the groups and individuals they represent any favors with their behavior, and neither are members of Congress.

“But we need to do something to stop widespread infringement!” That’s better, you didn’t use “piracy,” other-me. OK. Yes, I agree. But there really doesn’t seem to be a good dialog going on between ALL of the different groups and the people proposing bills. Here, it looks like there’s been a dialog between some members of Congress and the MPAA/RIAA. That’s only going to hurt efforts for true copyright reform and any teensy little hope of affecting the behavior of anyone at all. I’m not saying that the groups don’t have a place at the table, but they shouldn’t be the only ones being served here. We need authors, educators, librarians, public interest people, and fans there, too.