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House approves MPAA-backed college antipiracy rules

Buried in a mammoth higher-education funding bill is a new requirement, attacked by universities, to come up with alternatives to illegal downloading.

The U.S. House of Representatives on Thursday overwhelmingly approved a higher-education funding bill that includes controversial new antipiracy obligations for universities.

The 354-58 vote to approve the College Opportunity and Affordability Act leaves intact an entertainment industry-backed provision, which makes up just a tiny part of a bill that has ballooned to more than 800 pages.

It says higher-education institutions 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."

Leading university groups, such as the Association of American Universities and Educause, and fair-use advocates oppose those requirements, arguing they are overly burdensome, potentially expensive, and, at least by their interpretation, leave the implication that schools risk losing their financial aid for failure to comply.

"We reject the contention that campuses play a disproportionate role in the file-sharing problem," Steve Worona, Educause's director of policy and networking programs, said in a statement. "The requirements of the legislation will increase tuition costs and provide no value."

The bill's sponsors, for their part, insist that it's a "myth" that schools will lose financial aid funding if they fail to come up with the requisite plans. But university groups still say that's not the way they read the bill language, arguing that they find it unfathomable that such requirements would carry no penalty.

Major copyright holders, including the Motion Picture Association of America and the American Federation of Musicians, have applauded the provision.

"Piracy hurts ordinary, working musicians, but it also will hurt our nation's culture and its music fans if enough talented and hard working musicians cannot survive in the business," AFM President Thomas Lee said in a recent letter to the committee. "Hopefully, H.R. 4137 will become law and will help educate young Americans about the value and importance of copyright to the artists whose work they love."

It's possible that the section opposed by universities could be stripped out before the bill becomes law. The Senate passed a different higher-education funding bill last year, so the two sides will have to reconcile their differences before sending a final measure to the White House for the president's signature.

The university lobby successfully brought down a more burdensome antipiracy provision in the Senate counterpart bill last year. 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."

University officials don't object to all antipiracy obligations that Congress has proposed. They support a section, which shows up in both the House and Senate versions, that requires colleges merely to advise their students not to commit copyright infringement and to "report to their students annually on their policies and practices with respect to copyright infringement on campus networks."

And not all universities oppose the House bill in its current form. In a letter to the House Education and Labor Committee provided to CNET, University of California Assistant Vice President A. Scott Sudduth said he believes the peer-to-peer file-sharing requirements strike "a reasonable balance between institutions' ability to educate and inform students of their responsibilities regarding copyright law, and institutions' inability to monitor content or control the ever-changing technologies associated with peer-to-peer file sharing."

Executives at Educause, which represents college network managers, argue that the additional obligations are "inappropriate" because their research shows that universities don't actually house a disproportionate part of the piracy problem. Even the MPAA has admitted recently that it had significantly overstated the damage caused by piracy at the nation's universities.

Update at 4:30 p.m. PST: "Now that the data produced by the MPAA, the lead advocate for this provision, shows that illegal file-sharing by students using university servers is a very small part of the larger file-sharing issue, this provision is the moral equivalent of using a bazooka to kill a fly," said Barry Toiv, a spokesman for the Association of American Universities.

In an attempt to respond to universities' concerns, Rep. Steve Cohen (D-Tenn.) intended to propose an amendment (PDF) to the House bill that would have said no higher-education institution "shall be denied or given reduced federal funding for student loan or other financial aid programs" because of failure to devise an antipiracy plan."

But Cohen ultimately withdrew that amendment because, according to his press secretary, he was dealing with tornado aftermath in his home district and could not be present during a key procedural vote. His press secretary said Thursday that she wasn't sure whether Cohen would attempt to offer the amendment when the House and Senate meet to reconcile differences in their competing bills. Educause, for the record, has said that amendment wouldn't do anything to change its concerns even if adopted.