INFORMATION & TECHNOLOGY LAW
Back to School With Your Intellectual Property
By Jon M. Garon*
As published in Interface Tech News, August, 2001
August brings the rush of school supply specials, new alarm clocks, and new technology. Debates about replacing slide rules with calculators have given way to policies regarding new computer equipment, peripherals, PDAs, software, and the other accoutrements of our high-tech students. This fall also starts amid waves of copyright upheaval over their legality and the appropriate usage policies to be enforced in response. Many of these issues are unsettled and will be the source of future changes over the course of the upcoming year.
Napster and file sharing
Last spring, the big news on college campuses was that Napster.com, the peer-to-peer file sharing Internet site for MP3 music files, was going to be shut down. Millions of students held downloading vigils to extract as much music as possible from the site before it closed its doors. Although it never officially closed, the flood of illegally shared music has slowed to a trickle as users find that the music they want has been blocked from the system pursuant to the court order. The blocking has evolved from searching song titles to filtering the acoustic signature of the copyrighted songs, making the filtering effective and the site a virtual ghost town.
The legacy of the Napster litigation has only begun to be felt. Users—predominantly students—have moved from Napster to software such as Aimster, Bearshare, and Gnutella that provide peer-to-peer sharing without the court intervention. (The peer-to-peer portal, Zeropaid.com, provides a comprehensive list and ranking of these services.) For some sharing systems, there is no central server, so no effective legal target will be available for court action. Instead, the recording and motion picture industries will begin to intervene against the consumer by targeting students. Although suing millions of individual consumers would be inefficient, costly, and poor public relations, actions against schools and colleges will not be so difficult.
With the Napster decision serving to provide legal footing, the entertainment companies can send cease-and-desist letters to schools and colleges requiring that they block traffic of illegally copied music and files on their systems. For academic institutions, the opportunity to eliminate this heavy drain on their network will be a welcome change. Most schools will be willing—if not eager—to acquiesce to the request. For private schools, accommodating the recording industry has no legal barriers. For public schools, however, the students continue to have First Amendment rights, so a blanket elimination of peer-to-peer file sharing may raise additional legal issues. Instead, the public institutions may be required to adopt a form of filtering rather than a blanket prohibition.
Peer-to-peer file sharing will raise an even larger problem on school campuses this year. Many of the current generation of systems are no longer limited to MP3 files. This means that students can readily search for term papers and other historically unpublished content. Shared files will be exceedingly difficult for faculty to research or identify. The technology could result in a new wave of plagiarism that may ultimately force schools to rethink the system used for submission of written work. Academic policies, honor codes, and other institutional policies must all be re-analyzed in light of the new tools. Ubiquitous use of laptops and PDAs makes any attempt to distinguish between a student's own work and that downloaded almost impossible, further eroding traditional examination rules.
Tasini and the disappearing of modern history
The Supreme Court also decided a recent copyright issue that will have significant impact on the education community. In NY Times Co., Inc. v. Tasini, the Supreme Court upheld the rights of authors to control their rights to stories first published in magazines and newspapers when those magazines and papers are posted in electronic databases. The right to post stories to the Internet was not automatically granted when the print publication rights were sold, and, as a result, a significant portion of all old magazine and newspaper content must be removed from these databases or the authors compensated.
Ironically, the problem is only a historical issue. The large publishers uniformly require such rights in every contract that has been used since the early 1990s. Anything published earlier, however, may require a new license to be posted online. The immediate result may be an online void in published history. As more and more research moves online, the availability of these same resources in microfilm or hard copy will erode or sit unused. Unless a compromise is reached, however, schools may lose significant portions of their online collections, or face copyright lawsuits. In fact, school libraries and faculty archives may be some of the larger offenders of the Tasini decision. Institutions may also be called upon to stop peer-to-peer file sharing of these copyrighted works, adding newspaper articles to MP3 files on the filtering lists. While it is unlikely that freelance journalists have the same tenacity as the recording industry, the legal analysis has become essentially the same.
Distance learning and new technology
In the corporate arena, distance training has become widely accepted, saving industry millions of dollars in travel time and lost productivity. Training is typically focused on product development, use, and support, so the teaching content is either provided directly from the product manufacturer or original to the distance instructor. In traditional education, however, the adoption of distance education has been far slower. Part of this reluctance has been by educators, fearful of losing the personal interaction so integral to comprehensive education. In many other areas, however, the slow adoption has been the result of immature technology and legal barriers to content distribution. Distance education may serve as the missing "killer app" needed to propel the next round of technology growth.
Distance education requires perfect connectivity and benefits from broadband, distributed multimedia. A full-featured distance Web site harnesses the best of instant messaging, because it provides for live chat among a large body of participants. Most services today continue to rely on text-based chat despite the availability of some audio. Live, interactive video is not yet ready for sustained classroom use. Given the tremendous higher education concentration in New England, this should become a natural growth area for the local high-tech sector. Collaborative partnerships with local schools and colleges should provide a significant launching pad for future products and services. If not done by the schools, students will inevitably utilize their own peer-to-peer networks to create full-featured learning environments—without faculty and school participation and control.
As is evident with the discussion of the Napster and Tasini rulings, the licensing of distance education content also continues to be a stumbling block to rapid adoption. Faculty members are quick to post PowerPoint slides to illustrate lessons on their Web sites, but often those slides are not properly licensed from the copyright owners. By eliminating the copy shop, faculty members have avoided the hassle of licensing content, but, once again, risk significant copyright liability for materials provided to students.
Adding confusion, the Copyright Act provides non-profit educational institutions limited protection from copyright licensing fees when used in "face-to-face teaching activities in a classroom." This allows for showing movies, acting out plays, and reading text without requiring that licensing fees be paid. A narrower, second exemption allows for the transmission into the classroom for non-dramatic literary or musical works that are used in the course of instruction. This second exemption excludes plays and movies, but would still allow for instructional materials and music to be broadcast into the classroom.
The Senate has passed legislation to expand this narrower, second exemption, so the exemption will include students enrolled in distance education classes. This legislative change is considered critical, because much of the classroom content presently available to students in class cannot otherwise be replicated for the distance education student. Obviously, the publishing industry would prefer that all content were licensed rather than provided free to students. Nonetheless, the publishing industry has supported this narrow expansion of the rights for educators. As such, this new legislation is likely to be approved by Congress by the end of the year.
Taken together, Tasini, Napster, and the pending legislation will have a significant impact this fall on campus and throughout the high-tech sector. Content has become more difficult to license under the Tasini decision, while easier to steal using Gnutella. Both educators and the high-tech sector must start to work together in earnest to develop comprehensive solutions that create a balance between the rights of the copyright holder and the public in a manner that the technology will support and the public will adopt. This will be the true challenge for the next generation of computing products and services. School is now in session.
*Jon M. Garon is admitted in New Hampshire and California.
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