Archive:Notes on Response to HR 4137/Draft

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Presently, two bills in Congress represent important legislative efforts to help students manage the rising cost of higher education in the U.S. Unfortunately, a few ill-conceived paragraphs among hundreds of pages threaten to undermine the efficacy of this important work. Embedded among writing that will crucially renew and update the Higher Education Act of 1965 [1], both The College Access and Opportunity Act of 2007 (H.R.3746) [2] and The College Opportunity and Affordability Act of 2007 (H.R.4137) [2] include amendments that could unnecessarily hinder the use of academic computer networks. During the last few weeks, leaders representing the University System of Maryland, Stanford University, Yale University, The Pennsylvania State University, and Massachusetts Institute of Technology have issued statements requesting review of these proposed amendments. As students, we too wish to voice concern that a valuable piece of legislation may be compromised by an unfortunate addendum in dire need of clarification.

The proposed bills charge institutions with developing plans for identifying the purpose and character of data transmissions across campus computer networks. Unfortunately, this type of monitoring is technically impracticable, unreasonably costly, and, most important, beyond the scope of an institution of higher education. Of all the data that is copied across a university network, one will find works from the public domain, large data experimental sets, works whose license permits copying, and those creative works protected by copyright for use in research or the classroom. To date, computer programs have not been able to match the nuanced manner in which a U.S. judge applies the balancing test of Fair Use to a particular instance of copying. For this reason, any attempt to implement a technical deterrent to copyright infringement on academic networks unfairly burdens lawful users by compromising their privacy and slowing traffic.

Some universities have contracted with private digital media distribution services to encourage lawful downloading of works protected by copyright. We have found these services generally inadequate for the needs of an academic institution. A service that requires students to commit to a particular computing platform unfairly affects competition in the marketplace. If that service also implements Digital Rights Management (DRM) to control how its customers use the digital media they download, it necessarily constrains the non-commercial and educational use of those creative works. Contracts with commercial media distribution services such as these limit the ability of a college or university to effectively serve its students.

Introducing any new technical initiative on a college or university campus incurs costs in the form of hardware, software, and personnel. Even software provided free-of-cost will require maintenance. To offset these expenditures, the College Opportunity and Affordability Act would create new grant opportunities for needy institutions. This money could be spent on filtering software, hiring and training new staff, or initiating contracts with private media downloading services. We believe, however, that the funding for such grants is better spent in support of projects like the Internet Archive that explicitly encourage scholarship, research, and a respect for the rights of creators. [4]

Since 1965, higher education has become an important step toward financial stability and mobility for young people in the U.S. According to last year's census data, more than a quarter of adults 25 years or older had earned at least a Bachelor's degree and, on average, these graduates earned almost twice as much as those with only a high school diploma. [5] Yet as the value of a college degree has risen, so has the cost of tuition. Renewing and extending the provisions of the Higher Education Act is essential to continued intellectual development in the United States. We strongly urge our legislators to look closely and critically at the two proposed bills to ensure that institutions of higher learning may continue to perform their mission unhindered.

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[1] The Higher Education Act of 1965

[2] H.R.3746 - College Access and Opportunity Act of 2007

[3] H.R.4137 - College Opportunity and Affordability Act of 2007

[4] About the Internet Archive

[5] Earnings Gap Highlighted by Census Bureau Data on Educational Attainment