School houses rock: university response to the threat of contributory copyright infringement and forced compliance of the Digital Millennium Copyright Act: the entertainment industry may have won the battle against Napster, but can it win the war against universities?

• Author: Harris, Elizabeth M.

INTRODUCTION

With the advent of the Internet, digital technologies have become a necessity in the classroom. (1) In response, schools struggle to provide students with the tools and skills necessary to create their own ideas, as opposed to borrowing those readily available with the click of a mouse. As a result, universities have found themselves in dual roles: providing their students with intellectual stimulation, as well as the more daunting task of functioning as a service provider. Inadvertently, academia has also played an instrumental role in the illegal downloading of digital music. (2)

Perhaps the single largest demographic responsible for music piracy on the Internet is young people between the ages of 18 and 29. (3) This also means that students, at both the graduate and college levels, have become the safe haven that harbors the media industry's most wanted criminals.

John Dewey once wrote that "[e]ducation ... is a process of living and not a preparation for future living." (4) Clearly, the entertainment industry is unfamiliar with Dewey's work. To date, the Recording Industry Association of America ("RIAA") has sent more than 1,000 subpoenas to American colleges and universities, warning schools that they must prevent their students from engaging in illegal activity on their networks. (5) Laws such as the Digital Millennium Copyright Act ("DMCA") (6) have provided the RIAA with some legal remedy. However, there remains a clear and present danger of music piracy continuing. (7) It seems no matter how hard copyright holders and the legal community try, savvy computer users and avid entertainment fans are too bold to be frightened by the industry's admonishments. Fear that strict enforcement of the DMCA could stifle free thought on college campuses has been a pressing concern of the education and legal communities for some time. In Princeton University Press v. Michigan Document Services, (8) a dissenting judge expressed ambivalence about the majority holding, which narrowed the scope of fair use, saying it would have negative implications for "scholastic progress nationwide." (9) Nonetheless, the recording industry has boldly instituted a policy of suing college students, as well as fiercely threatening the academic institutions themselves with civil lawsuits. (10) It is this author's contention that enforcement of the DMCA has a potentially harmful effect on the relationship between universities and students in the United States.

Part I of this note provides a brief overview of the person-to-person ("P2P") technology movement on college campuses, as well as a look at a case in which copyright holders bypassed university officials in their prosecution of four college students for copyright infringement. Part II explores the many creative measures universities have implemented in an effort to comply with the DMCA. Part III discusses how the threat of contributory infringement by copyright holders places universities within a sphere of litigation. Finally, this note argues that if the entertainment industry continues its assault on academia, scary though it may seem, colleges and universities may be inclined to sue their own students under a trespass to chattel claim.

PART I

It used to be that downloading a four-minute song took as long as thirty minutes, let alone a full-length film. (11) The advent of broadband connectivity, however, has facilitated this process by making it possible to download a digital music file in a matter of seconds, and a film in just minutes. (12) The pioneer of music piracy on the Internet is a program called Napster. With its expansive collection of downloadable music, the site allowed Internet users to copy files from one another at no cost. (13) During the height of its popularity, Napster hosted approximately 35 million users. (14) But in 2001, a Ninth Circuit judge found Napster liable for copyright infringement, (15) and a district court subsequently ordered it shut down. (16) Today, Napster operates a legal website, contracting with "five major record labels, as well as hundreds of independents" to offer fans legally downloadable music. (17)

The music industry may have hoped that the downfall of Napster would signal an end to P2P file sharing. But nothing could have been further from the truth. According to recent studies, the demise of Napster has failed to deter music piracy, (18) as other P2P services such as Kazaa have been only too happy to replace it. (19) Kazaa, which boldly invites its users to "join the [P2P] revolution," (20) boasted some 140 million users during 2002. (21) Unlike Napster, which functioned out of one central server, Kazaa uses "Supernodes," or individual users who provide the same role a single server. (22) In other words, the computers of Kazaa users connect to one another to obtain their music, rather than Kazaa actually storing files on its server. (23) Adding to the industry's frustration is the courts' refusal to find sites like Kazaa liable. (24) In early 2003, for example, a U.S. District Court judge in California refused to shut down Grokster.com, a site capable of facilitating file sharing without infringing copyright laws. (25) It is argued that music piracy has led to a sharp drop in album sales. (26) Reportedly, record labels have experienced as much as a "14 percent drop in revenue from $14.6 billion in 1999 to $12.6 billion in 2002." (27) The RIAA argues that because of this drop, many artists, particularly less established ones, no longer reap the royalties they would absent piracy. (28)

The RIAA has tried to curtail this problem by creating an awareness campaign targeted towards youth. Perhaps its most logical approach has been the utilization of artists themselves as spokespersons against copyright infringement. Big name recording artists such as Metallica (29) and Britney Spears (30) have spoken out against Internet piracy. A Congressional hearing in 2003 produced the testimony of L.L. Cool J. (31) During that same year, the RIAA launched a print campaign featuring artists such as "Eminem, Madonna, Missy Elliott, Elton John, and Luciano Pavarotti." (32) In an effort to deter fans from pirating songs from their new album, the rock band Bon Jovi included a serial number inside their CD package that entitled the purchaser to "special privileges, including concert tickets." (33) Although artists such as Metallica have raised the ire and indignation of their fans by publicly speaking out against web sites that promote copyright infringement, (34) young people remain the group "most likely to burn illegal CDs." (35)

RIAA's fight against illegal file sharing by the RIAA has occurred on various fronts, from seeking legal action against Napster-like providers, to pursuing the individual pirates themselves. (36) The RIAA had already tried its hand at threatening large institutions when it decided to pursue individual users via corporate America. (37) In April 2002, the RIAA settled with Integrated Information Systems, an Arizona corporation that allowed its employees to engage in illegal file sharing via the company's network. (38) In response, firewalls have become the order of the day, blocking access to Internet music and videos, as well as preventing employees from checking their e-mail on commercial sites such as AOL and Hotmail. (39)

Following this model, the RIAA has resorted to seeking legal recourse against universities for their failure to adequately monitor and prevent the illegal activities of their students. (40) The media industry is hoping the threat of contributory copyright infringement litigation will scare universities into compliance and force them to take adequate steps to ensure students are not violating the law on university servers. (41) In some cases, the threat of litigation has provided remedial relief for copyright holders. In 2000, Metallica filed a lawsuit against Yale University for the copyright infringement of its students on Yale computer systems. (42) In response, the school promptly banned Napster. (43) Metallica subsequently dropped its suit against the school. (44)

1. The RIAA Strikes Back

   The entertainment industry has stated that it only intends to go after egregious copyright infringers. (45) Unfortunately, this makes college students the prime target, as they happen to be among the worst offenders of illegal file sharing. (46) Thus, it was only a matter of time before the media industry turned its attention from the schools to the perpetrators they harbor.

   In spring 2003, the RIAA sent shockwaves throughout the academic community when it filed suit against four college students: Joseph Nievelt of Michigan Technological University ("Michigan Tech"), Aaron Sherman and Jesse Jordan of Rensselaer Polytechnic Institute, and Daniel Peng of Princeton University ("Princeton"), for maintaining sites on their campus networks that facilitated P2P file sharing. (47) The defendants later settled their cases by paying fines between $12,500 and $17,500. (48)

   What is alarming about this case is that the RIAA bypassed administrators at all three universities, taking matters into its own hands. Since the advent of the DMCA, a university's incentive to cooperate with the Motion Picture Association of America ("MPAA") and the RIAA has arisen from Section 512(a), which grants an internet service provider ("ISP" or "service provider") protection from liability for vicarious copyright infringement if it complies with certain conditions. (49)

   First, the service provider must adopt and implement a policy of terminating the accounts of subscribers who are repeat infringers. (50) Virtually every institution of higher education has published such a policy. (51) As a preemptive measure, even schools that have yet to receive a single notice of infringing activity have developed policies that make compliance with federal copyright laws explicit. (52)

   Second, the service provider must accommodate and not...