In the House Education and Labor Committee's mammoth College Opportunity and Affordability Act (PDF) lies a tiny section, which dictates universities that participate in federal financial aid programs "shall" devise plans for "alternative" offerings to unlawful downloading, such as subscription-based services, or "technology-based deterrents to prevent such illegal activity." The committee unanimously approved the bill Thursday.
Supporters and opponents of the proposal disagree, however, on what the penalty would be for failure to comply with the new rules. The proposed requirements would be added to a section of existing federal law dealing with federal financial aid.
Some university representatives and fair-use advocates worry that schools run the risk of losing aid for their students if they fail to come up with the required plans.
"The language in the bill appears to be clear that failure to carry out the mandates would make an institution ineligible for participation in at least some part of Title IV (which deals with federal financial aid programs)," Steven Worona, director of policy and networking programs for the group Educause, said in a telephone interview Thursday.
Worona acknowledged that "there does appear to be a great deal of confusion with respect to what penalties would be involved in not carrying out the mandates in this bill." Still, Educause, which represents college and university network operators, continues to "strongly oppose these mandates," he said.
House committee aides respond that failure to craft those antipiracy plans would not imperil financial aid awards. A this week attempts to dispel "myths" that it argues are being circulated by "supporters of intellectual property theft."
"The provisions do ask colleges, to the extent practicable, to develop plans for offering students alternative legal ways to file share, as well as plans to prevent file sharing, but this would not be included in the financial aid program participation agreements colleges enter into with the U.S. Department of Education," committee spokeswoman Rachel Racusen told CNET News.com in an e-mail after Thursday's vote. "Contrary to what critics are saying, these provisions would not put students or colleges at risk for losing financial aid."
Nor would the bill strip away financial aid if schools fail to stop piracy on their campuses, to sign up for "legal" subscription media services like Ruckus.com and Napster for their student body, to report student violations, or to implement any specific antipiracy policies, Racusen said.
The only piracy-related information that schools would have to provide to their students and employees in conjunction with their financial aid agreements is a description of "the policies and procedures related to the illegal downloading and distribution of copyrighted materials," Racusen said.
If institutions fail to heed the new rules, it would be up to the Department of Education to decide the consequences, a committee aide said. For related reporting requirements, such as school safety plans, that has typically involved simply keeping after universities to provide the mandated information, the aide added.
That reporting requirement was also the core of an amendment offered by Senate Majority Leader Harry Reid and approved this summer as part of
But in an earlier draft of that amendment, Reid also wanted to require the Secretary of Education to devise a list of the 25 schools with the highest levels of illegal peer-to-peer file sharing, based on entertainment industry statistics. For those 25 institutions, their financial aid would have been conditioned on devising "a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property," according to university groups that opposed the measure.
That means the House provision, by expanding that requirement to all schools, not just the 25 on the watch-list, is seemingly broader than the original Senate amendment, according to Educause's Worona. After an outcry from universities, Reid ultimately scrapped that idea.
Opponents question fairness, privacy issues
The Association of American Universities wrote a letter to House committee leaders last week urging them not to revive that idea in their own forthcoming higher education bill. The letter was signed by the chancellor of the University of Maryland system, the president of Stanford University, the general counsel of Yale University, and the president of Pennsylvania State University.
"Such an extraordinarily inappropriate and punitive outcome would result in all students on that campus losing their federal financial aid--including Pell grants and student loans that are essential to their ability to attend college, advance their education, and acquire the skills necessary to compete in the 21st-century economy," they wrote last week. "Lower-income students, those most in need of federal financial aid, would be harmed most under the entertainment industry's proposal."
An AAU spokesman said Thursday that his organization still has concerns about the final provision in the approved House bill but declined to elaborate, indicating the group is prioritizing other areas of the bill that cause schools greater heartburn.
Other opponents of the antipiracy provisions argue that merely requiring such a plan from universities at all, regardless of the penalties involved, is misguided. The Electronic Frontier Foundation, for instance, argued that pressuring schools to strike deals with content providers could indirectly raise the cost of students' tuition, as schools will inevitably pass the costs of legal download services on to students in some fashion.
Another concern from opponents is the possibility of privacy invasions brought on by the technology-based deterrents schools would be encouraged--albeit not explicitly required--to adopt. In addition to the "plan" requirement, one section of the bill would offer voluntary grants over the next five years for schools, in partnership with outside organizations, to use toward efforts to concoct effective, reasonably priced antipiracy technology tools. Opponents argue those tools amount to spying on students' network activities.
Gigi Sohn, president of Public Knowledge, a group that advocates for preservation of fair-use rights, said she doesn't buy the committee's arguments that no penalties will arise if universities don't develop antipiracy plans.
"If it had no teeth, (the Motion Picture Association of America) would be criticizing it," she said in a telephone interview.
The MPAA, for its part, has heartily endorsed the provisions, with CEO Dan Glickman saying in a statement upon the bill's introduction: "We are pleased to see that Congress is taking this step to help keep our economy strong by protecting copyrighted material on college campuses."