Content Industry Now Seeking Higher Ed Filtering Mandates in the States: REVISED

NOTE: My original blog post on this topic stated that the Tennessee state legislature was on the verge of passing SB 3974, a copyright industry-supported higher ed filtering bill. As discussed below, SB 3974 has been replaced with a different (and weaker) version. I regret the error.

The content industry apparently is not satisfied with the College Opportunity and Affordability Act, which requires colleges and universities to filter their networks for copyright violations. While that bill gets worked out in conference, the industry is swarming the states, using their seemingly unlimited resources to seek state legislation along the same lines. Tennessee is on the verge of passing a bill that would require public and private colleges and universities to

...reasonably attempt to prevent the infringement of copyrighted works over the institution's computer and network resources, if such institution receives fifty (5) or more legally valid notices of infringement...within the preceding year.

If, after April 1, 2009, a higher ed institution has fifty or more notices of infringement, then the Tennessee Board of Regents and the colleges and universities have to provide a report to the Tennessee Higher Education Commission "which details the actions taken by such institution including, but not limited to the implementation of technology based deterrents..."

To the extent that there is any good news here, it is that the orginial bill was far worse. It would have required each college and university to either:

(A) Certify to the Tennessee higher education commission that the institution's network...is not being used to transmit copyrighted works, and that the institution has not received ten or more legally valid notice of infringement in the preceding year; or (B) Take affirmative steps, including the implementation of effective technology-based deterrents, to prevent the infringement of copyrighted works over the school's computer and network resources.

Undeterred by the successful efforts of EDUCAUSE and its members in Tennessee, the content industry has convinced the Illinois legislature to introduce an amendment to a higher education bill that has language which is virtually identical to original Tennessee bill - with ten infringement notices kicking off a requirement to implement a "technology-based deterrent system." Of course, ten infringement notices is nothing - that's probably what most institutions receive from the RIAA in a week - meaning that just about every institution would be required to pay for and implement copyright filters.

California apparently is next. On March 4, The California Assembly Committee on Higher Education held an "informational" hearing entitled "Illegal File Sharing on Public University Campuses, " featuring an RIAA lobbyist as well as representatives from the University of California and California State University.

We have written about the ills of network filtering numerous times, how it will prohibit the transmission of legal content, slow down networks and inevitably lead to an arms race where people simply encrypt their traffic. But what is perhaps most galling is that while at the same time the content industry swarms the states with its numerous lobbyists, it is at the same time seeking to require colleges and universities to bear the entire cost of these so-called "technology-based deterrents." If these deterrents work so well, why isn't the industry offering to pay for them?

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