Controversial college antipiracy bill nears House vote

The U.S. House of Representatives is preparing to vote as soon as Thursday on a mammoth higher-education funding bill that contains new antipiracy obligations for most universities.

Only this time around, it appears that an attempt may be made to water down the thorny new requirements included in the College Opportunity and Affordability Act (PDF). It's not clear, however, that such changes, if adopted, would be enough to appease university officials concerned about the measure.

Here's the deal: right now, a small section of the bill, which sailed through the House Education and Labor Committee last fall, dictates that universities participating 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."

That requirement raised serious alarms among some university officials and fair-use advocates, who worried that schools ran the risk of being docked financial aid for their students if they failed to come up with the requisite plans. The bill's sponsors, for their part, have long disputed that interpretation and say carrying out the antipiracy plans has no bearing on a school's financial aid eligibility.

According to the House Rules Committee, Rep. Steve Cohen (D-Tenn.), a member of a House intellectual-property panel, hopes to offer an amendment (PDF) that attempts to confront those concerns. It says no higher-education institution "shall be denied or given reduced federal funding for student loan or other financial-aid programs" because of "noncompliance" with the antipiracy requirements.

The offering of Cohen's amendment is just preliminary, and it will be up to the Rules Committee to decide at a meeting scheduled for later on Wednesday whether the proposal and dozens of other proposed amendments will be cleared for a vote on the House floor.

The amendment's introduction drew positive first impressions from the fair-use advocacy group Public Knowledge. "We're pleased that Congressman Cohen brought this to the Rules Committee," said Art Brodsky, the organization's communications director. "It would be to the benefit of the membership and the university community if the Rules Committee lets it go to the floor."

But Educause, a group that advocates for the information technology interests of schools, wasn't convinced. Vice President Mark Luker said the Cohen amendment doesn't change his organization's staunch opposition to the antipiracy requirements, which the higher-education community continues to view as "unacceptable," and Educause still wants that provision completely eliminated.

It wasn't immediately clear whether there is any connection between the new amendment and recent reports that the Motion Picture Association of America had significantly overstated the damage caused by piracy at the nation's universities. Cohen's office didn't immediately respond to requests for comment.

But MPAA spokeswoman Angela Martinez said her organization believes that there's no need for any changes to the bill text.

"The language in this provision of the bill should remain as it is because universities are accustomed to the reporting requirements of the HEA (Higher Education Act), and this provision is not unlike reporting on binge drinking or campus safety, and this new provision simply adds digital theft to that reporting list," Martinez said. "Universities will have many opportunities to meet the requirements before a loss of financial aid would occur."

If last year's action on a companion bill in the Senate is any indicator, though, universities may have a good chance of getting their way in this situation.

Under siege by universities, Senate Majority Leader Harry Reid ultimately yanked a proposal that would have required colleges and universities--in exchange for federal funding--to use technology to "prevent the illegal downloading or peer-to-peer distribution of intellectual property." The final funding bill in that chamber merely instructs colleges to advise their students not to commit copyright infringement and to inform students of what they're doing to prevent "unauthorized distribution of copyrighted material" through campus networks.

The House bill's sponsors, for their part, have also stated publicly in the past that it's a "myth" that schools will lose their financial aid if illegal file sharing occurs on their networks or will be forced into using "alternative" file-sharing programs that cost them millions of dollars.

In a fact sheet distributed last year, they wrote, "The bill does not mandate the use of any programs by colleges. Colleges and universities are simply required to report their campus policies on intellectual-property theft, including their penalties, and to develop plans for addressing illegal file sharing. For schools that want additional assistance in stopping illegal file sharing, the bill creates a voluntary grant program."