A Bill Without Bite: Why Effective Copyright Monitoring Was Not a Fair Trade-off for Making College More Affordable

• Publication year: 2007

Heather M. Tonelli ¹

I. Introduction

Affordability for college education in the United States is of growing importance as the number of students who attend college increases. ² Moreover, when students are contemplating the cost and consequences of attending college in the near future, they are uncomfortably close to considering the possibility of becoming a part of the federal government’s “most-wanted” list for copyright infringers. This classification includes a full report complete with personal information and detailed accounts of a person’s forays into the world of technology-based peer-to-peer sharing. The disconnect between college affordability and copyright monitoring is the issue with which the public and this paper are concerned.

The Higher Education Amendments of 2007 (S. 1642) ³ are proposed amendments to the Higher Education Act of 1965 (HEA). ⁴ This legislation, in conjunction with the already existing text of the HEA, would assist in making college more affordable nationwide and would also encourage the continued improvement of the education system in the United States. ⁵ In an additional effort to accomplish this goal, Congress recently signed the College Cost Reduction and Access Act (CCRA or College Cost Reduction Act) into law. ⁶ The CCRA institutes methods for increasing grant funding and decreasing the cost of student loans, as well as ensuring an increase in the number of excellent teachers and minority-sensitive colleges and universities. ⁷

The original form of S. 1642, S.A. 2314, ⁸ was an amendment that proposed implementing a “campus-based digital theft prevention” system. ⁹ As part of this preventative system, colleges and universities participating in CCRA would have been required to implement a process for identifying and reporting students involved in copyright infringement as a result of “technology-based . . . illegal downloading or peer-to-peer distribution of intellectual property.” ¹⁰ The amendment would have required the college or university to compile and report information to the federal government regarding the date and time of infringement and specific information about the infringing user. ¹¹

This recent development considers the constitutionality of the original proposed amendment to the CCRA, S.A. 2314. It shows that the original amendment was a violation of Congress’ constitutional spending clause power under the five-part test articulated in South Dakota v. Dole. ¹² The resulting public outcry in response to the original amendment and the relevant First Amendment issues fueling this outcry are also analyzed. Finally, the revised version of the amendment, S. 1642, is considered, including an analysis of its seemingly diluted form and the reasons why such a revision was necessary.

II. Statement of Proposed Legislation: S. 1642 – Amendment to The Higher Education Act of 1965

Congress originally passed the Higher Education Act (HEA) to “strengthen the educational resources of our colleges and universities and to provide financial assistance for students in postsecondary and higher education.” ¹³ Every five years, the HEA is revisited and reevaluated for any relevant and necessary changes and updates. ¹⁴

There have been numerous proposed amendments to the CCRA and the HEA. ¹⁵ Of particular interest was S.A. 2314, introduced by Senator Reid as an amendment to the CCRA. The purpose of this amendment was to encourage colleges and universities to implement systems designed to deter students from participating in technology-based copyright infringement and illegal peer-to-peer (P2P) sharing of intellectual property. ¹⁶ In order to fulfill its purpose, the amendment stipulated that the Secretary of Education (“Secretary”) first identify which of the participating institutions were required to implement such a deterrent. ¹⁷ Once the Secretary identified the target institutions, these institutions were then required either to create or to re-evaluate their policies and procedures for deterring “illegal downloading and distribution of copyrighted materials by students,” and to submit these policies and procedures to the Secretary for approval. ¹⁸ The Secretary would then report the required information regarding the infringing users to the federal government. ¹⁹

S. 1642, a revised version of S.A. 2314, ²⁰ is a proposed amendment to the CCRA. ²¹ S. 1642 recommends more relaxed requirements for the deterrence of copyright infringement. This amendment pushes universities and colleges to implement policies and procedures that deal with possible infringement claims and provides students with notice of the university’s policies regarding copyright infringement. ²² Although these proposals now seem reasonable, the amendment was not always so agreeable.

The diluted amendment, as it now reads in S. 1642, merely requires “an annual disclosure that explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject students to civil and criminal liabilities.” ²³ The amendment also requires institutions to furnish the Secretary of Education with a “description of the institution’s policies” for dealing with illegal P2P file sharing. ²⁴ This is a substantially less burdensome requirement for universities and colleges participating in the federal education program as they are currently only required to implement the policies and notify their students of these policies. ²⁵ The Secretary is not required to identify and target any specific university or college. ²⁶

As of September 27, 2007, the CCRA was signed by the President and became Public Law No. 110-84. ²⁷ As of July 27, 2007, S. 1642 is still being held at desk after being passed by the Senate with a ninety-five to zero vote. ²⁸ As this draft is only one of many HEA reauthorizations that have periodically arisen for Congressional consideration, the likelihood is good that the bulk of S. 1642 will be passed. ²⁹

Due to the tumultuous process that this amendment has gone through, from its original form in S.A. 2314 to its revised form in S. 1642, ³⁰ it is of particular interest that the original version was not adopted into the CCRA. ³¹ As with all legislation, there may be a variety of different motivating factors for this outcome. However, the relevant constitutional issues and the fervent public resistance to the original amendment may provide the best insight as to why S.A. 2314 has ultimately been diluted and whittled away into a bill without bite. ³²

III. Constitutional Standards: Federalism - South Dakota v. Dole

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In order to avoid being overturned by the courts, congressional legislation must pass constitutional muster. ³⁴ Legislation will be overturned if it conflicts with any constitutional provision. ³⁵ The applicable standard when analyzing whether a federally funded program implemented among the many states passes constitutional muster can be found in South Dakota v. Dole. ³⁶ Dole articulates a five-part test to be applied to a constitutional analysis of congressional legislation enacted under the spending clause of the Constitution. ³⁷ The five-part test is as follows: (1) for the general welfare, (2) requirements are clearly stated, (3) not in violation of any other constitutional provision, (4) not unrelated to the federal interest in the spending program, and (5) not impermissibly coercive of state power. ³⁸

A. South Dakota v. Dole Five-Part Test:

The Court found that the piece of congressional legislation at issue in Dole met the first consideration in that it was ultimately for the general welfare. ³⁹ Under the federal statute, ⁴⁰ the Secretary of Transportation was authorized to “withhold a percentage of federal highway funds otherwise allocable” to the State ⁴¹ if the drinking age was not raised to twenty-one. ⁴² The Court found that the statute’s condition on the federal allocation of highway funds was for the general welfare because Congress had an interest in protecting the public by deterring young people from drinking and then driving on interstate highway systems. ⁴³ This problem, the Court stated, required a “national solution,” and Congress had the inherent power to shape matters pertaining to general welfare. ⁴⁴ Ultimately, the Supreme Court held that the statute in Dole passed constitutional muster under each of the five considerations of the articulated test. ⁴⁵

B. Application of the Dole test to S.A. 2314

If S.A. 2314 was added as an amendment to the CCRA, there was enough public resistance to the original form of the amendment to reasonably believe that litigation would soon follow. ⁴⁶ There was immediate public frustration and resistance to the original form of the amendment being added to the bill. ⁴⁷ If a court analyzed the bill under Dole, it would have good reason to reject this amendment as it was originally drafted. ⁴⁸ S.A. 2314 would not have passed constitutional muster and would have failed under at least two of the five parts of the Dole test. ⁴⁹

Under the first part, the proposed legislation must be for the general welfare. ⁵⁰ The courts rarely invalidate congressional legislation under this part of the test. ⁵¹ The federal government’s purposes for the CCRA and for the Higher Education Act are to make college more affordable and maintain high standards of education. ⁵² These requirements would almost certainly be considered in the best interests of the general welfare, especially with the regularity with which students enter college after completing high school.

Education and copyright protection not only foster creation and innovation, but also promote a richer and fuller society for everyone. It would be difficult to contest the government’s interest in encouraging student access to institutions of higher education and ensuring a high standard of education within those institutions. It would be equally difficult to argue that protecting creative works and encouraging the free...