This has been a tough week for open education, at least in higher education. First came the news that Georgia Tech has taken down a 14-year-old student wiki site that allowed discussions and collaboration across courses and across semesters. Next came the news of more details on proposed intellectual property laws in Congress, dubbed SOPA for Stop Online Piracy Act, that are being drafted in a draconian manner to protect content providers while taking away reasonable “safe harbor” protections for internet site operators. Despite the nominal differences in these two pieces of legislation, I think that the Georgia Tech FERPA decision has shown just how dangerous SOPA could be to higher education.
Ramblin Wreck
The system under consideration at Georgia Tech was “Swikis”, a site that students used for their coursework and broader educational usage. As described in the Chronicle, all it took was for one student to cause the institution to shut down the whole Swikis program, despite the fact that students choose how to participate. The reason for Georgia Tech’s decision was their interpretation over violating FERPA regulations. No ambiguity here, just a simple interpretation by the institution despite the fact that FERPA was written into law in 1974, well before we had an internet and collaborative online software.
As Audrey Watters described while breaking the news:
. . . FERPA, the Family Educational Rights and Privacy Act, dates all the way back to 1974.
FERPA is meant to give students control over access to and disclosure of their educational records. This prevents schools from divulging information about a student’s grades, behavior or school work to anyone other than the student without that student’s consent (with some exceptions, such as to parties involved with student aid or to schools to which students are transferring). The classic example used to explain how FERPA works: you can’t post a list of students’ names and grades on a bulletin board in the hallway.
But what about posting students’ work publicly online?
Although it’s up to the U.S. Department of Education to enforce FERPA compliance, there’s news from Georgia Tech today that the school has made a decision to interpret FERPA as prohibiting just this sort of thing.
Enter SOPA
SOPA affects much more than higher education, as it is aimed to curtailing piracy of copyrighted content in all forms. As described by the San Francisco Chronicle:
A bipartisan bill introduced last week in the House of Representatives would mark a fundamental change in Internet law, shifting liability for copyright piracy from the infringer to the host website.
It would chip away at critical safeguards that have shaped the Internet as we know it today, and many worry it would make it far more difficult for the next YouTube, Facebook or Craigslist to emerge and succeed.
The Stop Online Piracy Act (SOPA) is the counterpart to the Senate’s pending PROTECT IP Act, which already had rights groups, academics and many online businesses up in arms. But the House bill goes much further.
The SF Chronicle goes on to describe the relationship between SOPA and existing legislation:
It’s impossible to understand what the bill could do without first understanding the enormous influence of the Digital Millennium Copyright Act.
By inoculating online businesses and Internet service providers against users’ actions, the 1998 law created a legal environment where companies like Yelp, YouTube, eBay, Craigslist and Facebook could thrive.
It invited these companies to create lively and dynamic open forums, where people could post videos, sell things, share opinions, highlight articles and much more. That’s because it removed the risk that the few users among millions who post copyrighted material, libelous statements or counterfeit goods would subject the site to business-crushing legal liabilities. (Not that various media giants haven’t tried anyway.)
The DMCA isn’t a free pass, as services are only protected so long as they act quickly when notified of illegal activity. But it correctly places the ultimate blame on the infringer, and the onus to police such activity on the copyright holder.
Much of this could change under SOPA.
One of the biggest issues is that SOPA would shift the responsibility for policing and detecting copyright violations to the site owners themselves, even outside of a typical due process. This is the removal of “safe harbor” provisions from existing DMCA.
Qualifications
Let me be up front in saying that there are real problems with student privacy and online copyright protection that should be addressed through legislation. FERPA and potentially SOPA both have reasonable goals on the surface. There are some real questions about the influence of Big Content on SOPA laws in particular, but that is not my point in this post. My criticisms are based more on how the laws are or might be implemented and interpreted by schools, and how these interpretations could impact educational innovation and collaboration.
SOPA in Higher Education
While the SOPA bills are in committee and the impacts are not fully understood – indeed, the bills might not get passed – there are some real dangers to educational usage that we need to follow. As drafted, SOPA could have a major impact on institutions using any form of educational technology to share content outside of a tightly-controlled password-protected course site. As we saw at EDUCAUSE this year, much of the potential of educational technology is to facilitate sharing of content outside of the traditional “walled gardens” of traditional LMS solutions, and enabling collaboration more broadly.
Bryan Alexander recently summarized a Google+ hangout discussion on the topic of SOPA’s potential affect on higher education, and I think the group hit on some very important points.
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. [snip]
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. [snip]
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.
How Georgia Tech Swikis Show Perils of SOPA
These are all good points discussed in the Google+ hangout, but I think the biggest issue is applying the Georgia Tech lesson to SOPA in the future.
Comparisons – SOPA could be like FERPA, in that campuses could take anticipatory steps to avoid possible legal actions.
All it took to erase 14 years of student educational content was one student complaint and one anticipatory step to avoid legal action. It is not hard to see how SOPA could create a minefield of potential legal actions, resulting in multiple institutions using their interpretations of the law (if enacted) to stifle innovation, particularly around sharing of content and general collaboration.
Add SOPA to the growing list of existing and proposed regulations and legislation that could impact education in a significant manner.
Great summary. Anyone in the ed tech space runs into concerns around FERPA regularly. Your point is spot on that it is the institution’s interpretation that is so important and that interpretation is often heavily influenced by a desire to not get sued. I agree that it seems our edu admins would benefit from practical case examples that clearly spell out how FERPA is either relevant or not relevant. I think we need some scaffolding to think around these issues. I hate to use the word checklist because it oversimplifies things, but some set of common tools to help educators realistically evaluate their real liabilities, so that fear doesn’t become the main force in decision making. Openness is clearly important to edu innovation, so proactively addressing these issues seems pretty important.
Phil
The issue is really complicated for those of us outside the US. Recent free trade agreements have brought US copyright interests into the basket of trade issues in a way that certainly seems to put smaller economies like Australia’s at a significant negotiating disadvantage, typically stiffening up our copyright regimes to provide more cover for US entertainment industries. So we are watching SOPA carefully.
The situation with FERPA is a little different–this is more contained within US political and educational decision-making, because privacy isn’t a global trade issue.
But the key instrument that connects it all is the technology itself: if your campus LMS is designed in the US, with tools and safety devices designed to meet US political standards, it will carry with it some of those standards and expectations wherever it’s used.
But the common culture, I think, is increasing risk aversion: as higher education institutions globally operate on ever more marginal budgets, the risk of legal action becomes increasingly painful to contemplate, and so I think you’re right that we will see anticipatory steps being taken that are hard to unwind. eLearning will be especially vulnerable to this given that the current generation of senior decision-makers are still those for whom online or tech-enabled learning has not been foundational to their personal learning experience, which is what makes wikis etc. seem expendable in terms of core business.
Glen, good point about sharing best practices on dealing with policy issues such as FERPA (and potentially SOPA). My initial reaction is that WCET could play a lead role here in the same way that they have for State Authorization. I’m not sure if they’re positioned better than others, but they have the right mindset and reputation to do so.
Kate, I think you’ve captured two key areas how SOPA could affect non-US institutions – ed tech industry and common risk averse culture. I would also add one other – user generated or curated content. Say you’re collaborating within your discipline with an open LMS or platform, and someone in your ‘group’ shares content that a big content company deems to infringe on their copyright. As SOPA is currently written, they could threaten and potentially shut down the site or at least collaborative group you’re participating in, without a court order. The burden would be on the LMS or platform company, or the institution hosting the software. If the hosting organization is risk averse, the content and collaboration would be gone, even without court orders or due process.
This process could play out across national boundaries. Also, don’t forget that the original intent of SOPA was to deal with non-US infringing sites, so the site does not have to be US-based to be affected.
Over the weekend it seems there is a growing resistance to SOPA, so hopefully it won’t happen.
Oh wait, we (Delta Initiative) just joined WCET. That last suggestion might come back to bite me :}
Phil, I agree, the issue of foreign “rogue sites” is exactly what aligns SOPA to other trade liberalisation initiatives re copyright: the US entertainment industries managing the increasingly rebellious practices of their foreign markets. Australians are culturally very tolerant of media piracy for a whole range of reasons, particularly young Australians. So we might not be up there with eastern Europe in acting as rogue hosts, but we’re certainly a hotbed of rogue practices. Our universities struggle with this all the time, and I think the kinds of opportunities for cross-institutional teaching in the open that Glen is interested in will be constrained if SOPA is established, by anticipatory conservatism about risk. The traditional walled garden LMS might have just have received a little boost.
On the other hand, a cautionary tale from the world of global shipping, the most common way illegal things travel around: Carolyn Nordstrom’s fantastic book Global Outlaws points out that the reason ports aren’t secure is simple volume. At the time it takes to thoroughly check a single container, “A large ship would demand 30,000 work hours, which adds up to 1,250 days of round-the-clock work—a total of 3.42 years. Per ship.”
As the simultaneous massification, globalisation and digitisation of education is producing a similar sense of scale, it may be that advocates for traditional trade and border protection methods for content/IP will have to think again.