[Infowarrior] - Mysterious Multiplication of Copyright Complaints

[Richard Forno]

Mysterious Multiplication of Copyright Complaints

http://insidehighered.com/news/2008/05/06/riaa

It’d be hard to argue that Indiana University doesn’t take illegal  
downloading seriously. As noted on its “Are You Legal” Web site, the  
university imposes a $50 fine for the first notice university  
officials receive from entertainment companies about a student’s  
alleged improper sharing of copyrighted music or video, and cuts off  
the student’s access to the Indiana network if he or she fails a 10- 
question quiz within 24 hours. The penalties ramp up from there.

But Indiana officials are now discussing whether they should continue  
to respond to complaints from the recording industry with the same  
aggressiveness. It’s not that university leaders have suddenly decided  
that illegal behavior isn’t wrong; instead, they are beginning to  
question the legitimacy of the notices the Recording Industry  
Association of America sends accusing network users of illegally  
sharing music.

That’s because, like many colleges and universities, officials at  
Indiana have seen an eye-popping increase in the number of complaints  
they’ve received at a time when campus administrators say they have  
not seen any sort of rise in traffic that would suggest more piracy.  
Instead, college technology experts — lacking an explanation from  
industry officials for the upturn — suspect that the recording  
industry has altered the standards it uses to allege illegal behavior,  
targeting not only instances in which computer users have actively  
shared music illegally, but instances in which they have stored  
downloaded music in a folder visible to other users, opening the way  
to a potential violation.

That has officials at Indiana and elsewhere reconsidering how  
seriously they take the threats the recording industry aims at their  
students, which has been part of a continuing disagreement between the  
entertainment industries and higher education leaders over whether the  
recording and movie industries are disproportionately singling out  
college students (and their host institutions) for the broader  
Internet piracy problem.

“We’ve been handling the notices as allegations of actual  
infringement,” said Mark S. Bruhn, chief IT security and policy  
officer in Indiana’s Information Technology Policy Office. “But if  
they are not allegations of illegal behavior, but of possible future  
infringement, we may wind up discarding them.”

As Indiana and other institutions reported significant upturns in the  
number of complaints they were fielding, officials of the RIAA have  
been relatively silent on the matter, letting prepared statements that  
say little speak for them, thereby encouraging speculation like Bruhn’s.

In an interview late Monday, Cary Sherman, president of the RIAA,  
specifically rebutted the idea that the industry had altered its  
criteria for going after illegal downloaders. Sherman attributed the  
“phenomenal jump” in the number of complaints to a “major change in  
the software and hardware” its major vendor uses to detect online  
infringement. Nothing about the industry’s approach changed, Sherman  
said: “It’s the same procedures, the same standards, the same list of  
copyrighted works that we’re using.” The only changes, he said, were a  
more efficient software and an increased number of servers powering  
the industry’s searching for possible shared material.

“The Internet is a huge place, and there are millions of people  
connected to it,” he said. “The amount of resources you put into  
sending out requests for specific files makes a difference; the more  
requests you make, the more you’re going to find.”

He added: “We don’t think there’s any more infringement going on. We  
just think there’s more detection of infringement.”

In the first 20 days of April, Indiana received a total of 70  
complaints directing the institution to take down illegally downloaded  
content. It received 70 notices alone on April 21. April 22 brought  
97. The next few weekdays delivered 44, 91, 83, 72 and 58. Other  
universities, from major ones like the University of Michigan to  
smaller institutions such as Whitworth University, are also reporting  
significant increases in notices from recording companies. Most  
institutions in the Council on Institutional Cooperation, which  
includes the Big Ten universities and the University of Chicago,  
reported big rises in a recent survey, according to Bruhn.

He said he and other officials at Indiana have not seen a concomitant  
increase in actual network traffic, and that the campus is actually  
emptying out as students finish their final exams and head home. That  
led Indiana IT administrators to seek an explanation for the dramatic  
upturn from contractors that the recording companies use to monitor  
possible illegal file sharing, and Bruhn said that one of the  
contractors had said that because one student had one of a record  
company’s songs available to other users in his or her public index of  
songs, the university would be receiving a DMCA notice.

Entertainment industry lawyers have long maintained — and argued in  
court — that it is a copyright infringement to “make available”  
illegally downloaded music or movies, even if the material is not  
actually shared. That has been among the battleground issues in court  
cases over peer to peer file sharing, and the terrain remains  
disputed, even though two of three relatively recent court rulings  
(including last month’s denial of a summary judgment in the closely  
watched Atlantic v. Howell case) have rejected the recording  
industry’s argument that making content available for possible  
download is just as much copyright infringement as actual  
dissemination of the material.

That legal fight is among the factors that has Bruhn and other college  
officials wondering if the recording industry is altering its approach  
to try to buttress its political and legal standing, especially given  
the fact that the statistics entertainment officials have leaned on to  
persuade Congress to target higher education for a crackdown on  
downloading were acknowledged early this year to be flawed.

Could the industry, they wonder, be ramping up its allegations against  
college students now to try to reinforce its case to the courts and to  
Congress that colleges are, in fact, a hotbed of illegal file sharing  
activity?

Sherman scoffed at that notion. “We have been asking the contractor  
for years to increase the computing power of its effort, and to search  
more to detect infringement,” he said Monday. “We’ve had a standing  
request to maximize efficiency for what they do for us.... We didn’t  
even know they were putting a new system online.”

Despite the timing, there is “no connection whatsoever” between the  
upturn and either the court cases suggesting that actual infringement  
needs to occur for a finding of copyright violation or the perceived  
need for new data to show Congress that illegal file sharing is  
rampant on campuses, Sherman said.

“We would have preferred this uptick five years ago,” he said.

— Doug Lederman