January 16, 2008
On December 2, 2007, Wiretap published a blog post in which I warned our readers about the implications of the part of the bill H.R. 4137 called “Section 494(A): CAMPUS-BASED DIGITAL THEFT PREVENTION” of the “College Opportunity and Affordability Act of 2007.”
I suggested that the penalty for schools that failed to enforce anti-file sharing requirements would be loss of federal funding, increased school fees and the like.
After my December post, Wiretap was contacted by the office of the chair of the House Education and Labor Committee, Chairman George Miller (D-CA), (who approved that bill), arguing that the risks were far fewer than I suggested. The Deputy Communications Director Rachel Racusen wrote in an email to Wiretap on December 20:
“…The fact is that these provisions would not cause any student or any school to lose federal financial aid, would not punish colleges, if illegal downloading happens on their campuses, would not require colleges to purchase any specific programs or legal downloading services, and would not ask colleges to report student violations.”
Wiretap disagrees with the Chairman’s office over whether the current language in the provisions threatens college funding. Wiretap argues that it could.
However, on further research and consultations with experts in the field, I should have said that schools could–rather than would–lose their funding. What we are dealing with here are the typical grey areas in legislative language. Wiretap is happy to make this correction and provide further clarification on what is at stake.
The question of how likely the loss of federal funding can happen is a question of politics, not legal requirements–to understand what can potentially happen, we need to know who are the players and who has the power.
Wiretap deliberately chose to alert the public to the threat posed by this language since the anti-file sharing language is consistent with the aggressive campaign by the entertainment industry against college students. Our caution is especially driven by the fact that this anti-file sharing provision is in a college funding bill. If you are not planning to use college funding as a potential “stick” to enforce the law, why would you put it in that bill in the first place?
However, it is true that the actual language of this bill is vague about enforcement and doesn’t mention penalties at all. So what is a reasonable penalty to expect?
One opinion on reasonable penalties comes from an organization seeking to benefit from this kind of requirement–the Motion Picture Association of America (MPAA), whose Washington house counsel, Fritz Attaway, recently said to the Federal Communications Bar Association: