Bad news for higher education: SOPA, discussed

The United States Congress is considering a law which is bad news for colleges and universities.  So ran our impromptu videoconference discussion today about H.R.3261, the Stop Online Piracy Act, or SOPA.

This blog post isn’t an introduction to the proposal law, but a summary of an energetic, intense, and challenging hour of conversation.  Google+ Hangout participants included Barry Dahl, Sean Andrews, George Station, Roselee Strong, Eric Behrens, Eric Remy, Benjamin Harwood, Todd Conaway, Bernie Dekoven, jason kielbasa, Zach Dowell, and Bryan Alexander.  Other people contributed via Twitter and email, including Glen Engel-Cox, Andrea Phillips, Bryan Ollendyke, and Ernst Phaff.

As with my previous posts, these notes are an outline, a highlights account, rather than a transcription.

We struggled to understand SOPA, and ran into complexities right away.  It’s the House’s version of the Senate’s related bill, the Protect IP Act. Participants saw SOPA as directed at supporting American intellectual property (IP) holders, aimed against foreign-hosted internet sites which share IP-infringing content.  Some of us wondered about possible international implications – would other countries block US-hosted sites in retaliation, or would other nations reduce purchases of American goods?  The European Parliament has already protested American moves towards DNS (see next paragraph). In the age of cloud computing, does the geographical location of a server matter?

Under the bill’s terms aggrieved IP holders can cut financial support to such sites, or have them shut down, or have their Web locations blocked at the Domain Name Services (DNS) level.  The US attorney general can apparently create a blacklist of offending Web sites.  Internet service providers (ISPs) would no longer have “safe harbor” protection; instead, they would be liable for content whose publication and access they facilitated.

In some darkness and frustration, we resolved to learn more later.  Next up: SOPA’s possible impacts on education.

We approached the problem from several directions:

Comparisons – SOPA could be like FERPA, in that campuses could take anticipatory steps to avoid possible legal actions.

Libraries – librarians’ workload could increase, as staff have to spend more time ensuring copyright compliance and educating the community.  Librarians are already doing lots of work to clear copyrighted materials for student and faculty use.

Utility - we were skeptical about how effective SOPA would be in meetings its goals. Professional pirates could evade suits, shifting their operations to other sites.  Moreover, some large sites already police hosted content – Google and YouTube, for instance.

One interpretation of the bill.

Safe harbor - this may be the crux of the matter for schools.  If ISPs no longer have safe harbor protection, campuses acting as ISPs will have extra incentive to police existing content, and to enforce more scrutiny of new creations. IT departments will have more work, much as librarians.  Financially strapped institutions will have additional problems.

Depositories – if they act as ISPs, see preceding.  Again, more surveillance of content for IP compliance.

Fair use - SOPA makes no provision for that 1976 doctrine.  Indeed, schools might find supporting fair use less appealing if infringement risks are more salient.    Risk aversion might lead to decreased fair use claims.

Campus streaming services – these might run into problems, especially with SOPA language addressing them.

How else could campuses response, should SOPA and PIP become law?  eReaders might become more attractive, if their content is already copyright-cleared; alternatively, schools might shun them if they expect to have to police their use.  One participant reminded us of an ironic ebook/ereader story involving copyright and retracted content.

Open education resources (OER) might appeal, given their non-copyrighted nature.   Colleges and universities could increasingly use commercial etextbooks, if they appear to be beyond SOPA problems (for example). We discussed faculty creating their own textbooks, such as this biologist.

Are there TEACH Act related issues?  We couldn’t determine any.

Who benefits from SOPA?  We deemed the movie and music industries to be the main beneficiaries.  Indeed, the battle over SOPA could be seen as a struggle between Hollywood and Silicon Valley.

Could SOPA fail in implementation?  Perhaps the major IP industries aren’t actually being harmed by piracy, so enforcing SOPA would have no beneficial effect on them.  Maybe the proposed law is actually unenforceable, given the huge scale and complexity of its purview.

Would any good effects occur, from an educational perspective?  Some of us wondered if OER use would peak.  One imagined malware could decrease.

How would SOPA play out in classes?  We discussed a split between STEM fields and the humanities, with the former already being more amenable to open content and open access.  Perhaps the creative arts would run into problems with rising media remixes.  Campuses might have to rethink for which professions they hope to prepare graduates, leading to a greater emphasis on IP industries, and less on technology-related fields.  At another level campuses could turn away from creative digital work, fearing present risks or the impact of new laws.

We stopped at the hour’s end, many questions remaining.

One view of how SOPA can block sites.

Selected links and resources cited in discussion:

• Legal documents: the SOPA bill itself.  The fair use doctrine.
• Linking FERPA to SOPA.
• One fine TEACH resource.
• “Higher Education Concerns About the Stop Online Piracy Act (“SOPA”), with Initial Suggestions for Addressing Them” (pdf), an EDUCAUSE publication.
• SOPA: The Internet Blacklist Bill.  A poster or infographic.
• “Piracy problems? US copyright industries show terrific health“.  An Ars Technica opinion/analysis post.
• “The Copy Culture Survey: Infringement and Enforcement in the US”.  Research on the reality of piracy.
• James Gibson, “Risk Aversion and Rights Accretion in Intellectual Property Law“  116 Yale Law Journal 882 (2007).
• David Rapp, “Library Copyright Alliance Voices Concerns Over Anti-Piracy Legislation“, Library Journal.
• Rebecca Mackinnon, “Stop the Great Firewall of America“.  Opinion piece in the New York Times.
• Two anti-SOPA opinion pieces from TIME (1, 2).
• Misha Glenny, DarkMarket: Cyberthieves, Cybercops and You (Amazon)
• Richard Stallman, “The Right to Read” (1997).  A dystopia concerning content surveillance.

Previous NITLE impromptu videoconference discussions:

1. Mozilla badges for education (part 1, part 2)
2. Google+ for education
3. Recent developments in open education
4. Unbundling education
5. Digital storytelling
6. ebooks in education
7. Digital humanities now

(image credits: opening “C” from Horia Varlan; others drawn from “SOPA: The Internet Blacklist Bill”)