Congress, RIAA: Don't Tread on Me

For the 2007 fiscal year, the federal government covered 78.1% of the $411.1 million that Vanderbilt University received for its research. Of that, most of the money came from the Department of Health and Human Services and particularly the National Institutes of Health, according to Vanderbilt’s 2007 Financial Report, available online. The report describes the full breadth and depth of the research that Vanderbilt pursues: in the medical field alone, progress is being made in fields ranging from early cancer detection to AIDS treatment to malaria prevention. Federal monies also fund research on any variety of subjects, such as nanoscale engineering or school choice.

While this libertarian is usually loathe to support federally funding almost anything, university research should be recognized as a proper public good given its external benefits and therefore should be funded appropriately. A purely free-market system might not support such vital research even if the virtues of such research were conclusively proven, a consequence of the all-too-obvious fact that people would want to obtain the benefits without paying the costs—in other words, they want to get a “free ride,” as economists phrase the problem. Economists recognize subsidies for such public goods as a means of correcting such a market failure, and in this case the subsidy comes directly from the government itself.

Right now, recording companies are attempting to exploit this market failure to their own ends, however, and once again, as with most bad proposed legislation, a stealthy legislative amendment is to blame. The pending House Resolution 4137, titled the “College Opportunity and Affordability Act,” contains within its 800 pages a brief section that mandates that institutions receiving federal funding should “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.” The Electronic Freedom Foundation’s Richard Esguerra argues that this section clearly shows the interests of the recording industry in protecting their own work and profitability at any cost.

While H.R. 4137 will probably not face full consideration before February, according to the EFF, leaders in Congress have already taken action against student downloading, writes Fred von Lohmann in the Washington Post. Their methods, on the other hand, reflect more of a commitment to principle than a commitment to action, not unlike the United Nations. On May 1st, 2007, a six-page questionnaire went out to nineteen national universities—Vanderbilt among them—and it asked what each recipient university was doing to curtail copyright violations. One question was, “Does your institution expel violating students?” Vanderbilt does not, of course, but such a question is an example of the zeal with which the recording industry intends to address the situation.

More recently, Anne Broache of technology website CNET and its subsidiary News.com reported that the Motion Picture Association of America has in fact all but explicitly agreed with such tactics. Speaking before the Federal Communications Bar Association, Fritz Attaway, the lead Washington attorney for the MPAA, stated that “When the government is subsidizing universities...and it discovers that those universities are spending a lot of taxpayers' money to build digital networks that are being used primarily to allow college students to traffic in infringing content, I think it's perfectly legitimate for Congress to say, wait a minute, if we're giving you money, we don't want it to be used to help college kids infringe copyright.”

Mr. Attaway makes a good point here—taxpayers should not have to subsidize copyright infringement. But at the same time, his proposed solution and the solution evidently favored by Congress right now—namely, encouraging universities to employ legal downloading solutions such as Napster and Ruckus—create more problems than they solve. As Mr. von Lohmann writes of such music services, “They don't work with the iPod, they cause downloaded music to "expire" after students leave the school, and they don't include all the music students want.”

Of course, the copy-protection techniques employed by these services are not without flaws. Digital Rights Management, the bits of code in a digital song file that, for example, makes tracks you download from Napster only available on your Napster player and account, is not a perfect system by any stretch of the imagination: it complicates file transfers to MP3 players, it makes burning CDs difficult, and it frustrates consumers.

DRM is also easily defeated with tools readily available on the Internet. While neither The Torch nor I condone or endorse copyright infringement, I would point out that nothing more than a simple Google search can turn up the necessary software to remove the DRM code from Ruckus and Napster tracks, thereby rendering such tracks playable anywhere on any device without the restrictions of copy protection. In essence, DRM-based subscription services like Napster and Ruckus close a door but, in doing so, also open a window.

Moreover, peer-to-peer file-sharing systems remain a viable avenue to share music and movies illicitly. Worse, the MPAA developed a software package of tracking network traffic across university networks and gave the software to schools it felt were not making an adequate effort to curb illegal downloading. While the MPAA claimed that such software protected student privacy rights, David Taylor, an information systems specialist at the University of Pennsylvania, and Brian Krebs, a leading computer security blogger, discovered that this software essentially functioned as a means for the MPAA to directly examine student web traffic, even down to the web addresses that individual students were visiting.

Mr. von Lohmann suggests that the most effective and least invasive solution to the downloading problem might come in the form of an all-encompassing licensing fee paid by universities: “The only solution is a blanket license that permits students to get unrestricted music and movies from sources of their choosing. At its heart, this is a fight about money, not about morality. We should have the universities collect the cash, pay it to the entertainment industry and let the students do what they are going to do anyway.”
This solution is practical as long as the current legal climate holds. Nonetheless, colleges (and college students!) should not allow themselves to be held hostage by RIAA and MPAA lobbyists, regardless of the morality of illicit file-sharing. In this case, the market holds the best available solutions, whether they are of the blanket policy sort proposed by Mr. von Lohmann, or whether they are of the “pay what you like” sort espoused by Radiohead.