Guilty until proven innocent

The folks at Bits of Freedom did a little experiment to see how fast (and how wrongly) copyright complaints are handled (at least in the Netherlands). They signed up with ten service providers and put up Web sites containing public domain material. They then made up an organization that claimed to be the copyright owners and sent (from anonymous Hotmail accounts, no less) copyright complaints to the service providers. Seven out of ten providers promptly complied with the compaint and removed the sites. One didn’t respond to the complaints at all, treating them like junk mail; one responded with a request for verification of the complainant’s identity and claim to copyright ownership. Only one actually bothered to point out (because they had actually bothered confirming the validity of the complaint) that the work had actually expired several years ago.

It would certainly be interesting to conduct a similar experiment here in the United States (although there was one done in 2003 to compare takedown procedures in the US and the UK). Specifically, one targeting universities. Why universities? Because around the country, young college students are somehow becoming the target of the entertainment industry because universities, afraid of liability, have been so easy to comply with these notices, and students, intimidated by the legal forces of the entertainment industry, rush to settle out of court. No matter how rich private universities might be, they cannot possibly compare to the financial and legal powerhouses of the entertainment industry and no matter how many kids with rich parents go to these universities, the entertainment industry simply targets all students (and although this doesn’t justify theft, you might wonder why they’re illegally downloading music in the first place– maybe they can’t afford it?). Aside from the widespread use of file-sharing applications on college campuses (partly out of liberal computing policies to encourage academic freedom, partly because college students are early adopters of new technologies), they are, unfortunately, easy targets.

But on top of the legal problems, the price for students is much greater because of the disciplinary actions more and more schools are taking. If Comcast or AOL or whoever cuts off your network access because of repeat copyright complaints, you can simply choose another ISP. But it is not as easy to choose another college and on most campuses, impossible to choose another ISP. More importantly, more schools are taking steps to restrict access not only to Internet service, but also general online services, like email and Intranet resources, and it would be naive to think that computing resources and network access aren’t essential to academics in this day and age. And because these complaints accuse students of breaking copyright law (although they are still civil complaints), schools take it one step further and take disciplinary action, whether its standing before judicial affairs groups, writing an essay about what they did wrong, or simply just getting suspended or even expelled. So then, the price becomes even greater for these young students that, at least in my mind, universities should be trying to protect– but I guess “in loco parentis” applies to keeping men and women in separate dormitories and regulating dating behavior, but not protecting them from questionable civil complaints.

Well, if that’s what universities want to do, fine. The bigger problem is that there doesn’t seem to be any due process. In the same way that those ISPs took down those Web sites without (presumably) even checking whether the claim was valid, I don’t think most universities are taking the time out to verify the validity of copyright complaints, but are taking the time to punish students for mere accusations. Maybe most students are illegally file-sharing and so many people have participated in illegal file-sharing at least once so its difficult for us to see past our own behavior, but I don’t believe all complaints are valid. The entertainment industry has been known to send false/incorrect takedown notices and because there is no penalty for sending invalid complaints, there’s nothing really stopping me from just spamming DMCA agents all over the country, arbitrarily looking up IP subnets and claiming copyright infringement. As far as I can tell, universities as well as ISPs are not actively verifying that the complaining parties are actually the copyright owners (much less real people). But more insidious than that is they are not verifying that the files are actually being shared up at all by the accused party. We’re just taking the entertainment industry’s word for it and punishing our students.

But what if we were to verify that the files were being shared up and found that they were? Well, that doesn’t automatically mean we should convict either. If you haven’t thought of it yet, think about the sharp increase in computer security vulnerabilities and exploits. Aside from launching DoS attacks and stealing/destroying your personal data, viruses and other exploits also take control of your computer to illegally share up copyrighted materials. So, in these cases, files are being illegally shared, but not by the choice of the computer’s owner. And you might say, “well, that’s the price they pay for not keeping their computers secure.” But if you got a speeding ticket because you had a broken speedometer, would you just pay the ticket and accept the points onto your record? Besides, an exploit for an operating system vulnerability could come out before the patch was available and if you just happen to be that unlucky, you could get infected within hours or even minutes and soon, the DMCA complaints could be rolling in one after another. And you may not even know you’re infected until you get one, two, three or even more DMCA complaints. And the lack of timeliness with which DMCA complaints are often filed only complicates matters– by the time you receive them, you may have already cleaned and patched your machine, making it that much harder to prove that you were infected at some point and that the files were shared without your knowledge.

Everyone is so afraid of getting sued that we’ve gone right past one of the most important concepts in our society– that we are innocent until proven guilty– and instead, we are interpreting accusations as actual violations. And instead of placing the burden of proof on the accuser, we simply roll over and let accusation equal guilt. Are these the ideals we want to be holding up in our higher education institutions, in the places from which we draw tomorrow’s leaders? Are these the lessons we want to teach them, the attitude we want them to take and the standard to which we want to hold them?

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