Peer-To-Peer And The Higher Ed Act
Career College Central summary:
With the Higher Education Act up for renewal, the Department of Education, associations, colleges and universities, and legislators are teeing up pet concepts and ideas. Loan rules, accreditation and competency policies, completion rates and the perennial questions over how to legislate cost/price challenges are the larger issues.
Tracy Mitrano of Inside Higher Education writes that the peer-to-peer file sharing provisions that made their inaugural appearance in the last iteration of the Act in 2008 are perhaps not among the most significant issues but it is curious that copyright specialists in higher education or its associations have not put it on their radar. She says to reopen the discussion has some Pandora’s box potential.
Mitrano writes that the issue can be summed up as the requirements with which colleges and universities that receive federal funds (financial aid or grants) must comply: a technological “solution” to “peer-to-peer” copyright infringement; the offering of legal alternatives and annual assessment of “solutions.” Two of the four options under the technological “solutions” were antiquated by the time the legislation went into affect in 2010: “identification of high bandwidth users” and “packet-shaping” because of the many legal uses to which bandwidth goes: for example, streaming video. The least and most restrictive “solutions” remain in effect: devices that filter by content and acting on DMCA notices.
Mitrano asks if there is something wrong with the fact of these requirements? In her opinion, they could not survive a rational basis scrutiny of the equal protection clause: Higher education networks are required to comply, but not any other “sector” of U.S. society nor commercial service providers.
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