School Houses Rock: University Response to the Threat of Contributory Copyright Infringement and Forced Compliance of the Digital Millennium Copyright Act: The Entertainment Industry May Have Won the Battle against Napster, but Can It Win the War against Universities?

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INTRODUCTION

With the advent of the Internet, digital technologies have become a necessity in the classroom. (1) In response, schools struggle to provide students with the tools and skills necessary to create their own ideas, as opposed to borrowing those readily available with the click of a mouse. As a result, universities have found themselves in dual roles: providing their students with intellectual stimulation, as well as the more daunting task of functioning as a service provider. Inadvertently, academia has also played an instrumental role in the illegal downloading of digital music. (2)

Perhaps the single largest demographic responsible for music piracy on the Internet is young people between the ages of 18 and 29. (3) This also means that students, at both the graduate and college levels, have become the safe haven that harbors the media industry's most wanted criminals.

John Dewey once wrote that "[e]ducation ... is a process of living and not a preparation for future living." (4) Clearly, the entertainment industry is unfamiliar with Dewey's work. To date, the Recording Industry Association of America ("RIAA") has sent more than 1,000 subpoenas to American colleges and universities, warning schools that they must prevent their students from engaging in illegal activity on their networks. (5) Laws such as the Digital Millennium Copyright Act ("DMCA") (6) have provided the RIAA with some legal remedy. However, there remains a clear and present danger of music piracy continuing. (7) It seems no matter how hard copyright holders and the legal community try, savvy computer users and avid entertainment fans are too bold to be frightened by the industry's admonishments. Fear that strict enforcement of the DMCA could stifle free thought on college campuses has been a pressing concern of the education and legal communities for some time. In Princeton University Press v. Michigan Document Services, (8) a dissenting judge expressed ambivalence about the majority holding, which narrowed the scope of fair use, saying it would have negative implications for "scholastic progress nationwide." (9) Nonetheless, the recording industry has boldly instituted a policy of suing college students, as well as fiercely threatening the academic institutions themselves with civil lawsuits. (10) It is this author's contention that enforcement of the DMCA has a potentially harmful effect on the relationship between universities and students in the United States.

Part I of this note provides a brief overview of the person-to-person ("P2P") technology movement on college campuses, as well as a look at a case in which copyright holders bypassed university officials in their prosecution of four college students for copyright infringement. Part II explores the many creative measures universities have implemented in an effort to comply with the DMCA. Part III discusses how the threat of contributory infringement by copyright holders places universities within a sphere of litigation. Finally, this note argues that if the entertainment industry continues its assault on academia, scary though it may seem, colleges and universities may be inclined to sue their own students under a trespass to chattel claim.

PART I

It used to be that downloading a four-minute song took as long as thirty minutes, let alone a full-length film. (11) The advent of broadband connectivity, however, has facilitated this process by making it possible to download a digital music file in a matter of seconds, and a film in just minutes. (12) The pioneer of music piracy on the Internet is a program called Napster. With its expansive collection of downloadable music, the site allowed Internet users to copy files from one another at no cost. (13) During the height of its popularity, Napster hosted approximately 35 million users. (14) But in 2001, a Ninth Circuit judge found Napster liable for copyright infringement, (15) and a district court subsequently ordered it shut down. …