All Cal Poly needs to do is provide anti-piracy policies and forward infringement notices to violators in order to shift liability for torrented material to the student. The university doesn’t seek out students who illegally download content.
Special to Mustang News
Every student hears it from resident advisors and the administration: If you use Cal Poly’s network resources for file sharing, they will catch you.
The reality is that committing intellectual property theft on campus is nearly as easy, and risky, as doing it from home.
Housed within the Higher Education Opportunity Act — a 2008 reauthorization of a 1965 bill designed to improve financial aid eligibility — exists a provision that requires universities to develop policies against online theft. At Cal Poly, every student is required to agree to the university’s information technology responsible use policy upon enrollment.
The policy states “enforcement will be based upon receipt by Information Technology Services of one or more formal complaints…or through discovery of a possible violation in the normal course of administering information technology resources.”
In actuality, Cal Poly has no way of detecting most of the violations its policies prohibit on its own. But so long as copyright holders are willing to go after students without holding the university liable for copyright infringement, they may not have to.
What is monitored?
Imagine standing on the top floor of a skyscraper and staring down at densely populated city streets — that’s what Cal Poly does when it’s looking for copyright infringement on its network. You would be able to see where people gather in large groups, but wouldn’t be able to see what any particular individual is doing.
Before the implementation of PolyLearn, Cal Poly had no systems in place to prioritize the university’s educational resources over the rest of the Internet on its network. At the time, piracy was so rampant that students were unable to access Blackboard, the academic resource management system Cal Poly used at the time.
“Before PolyLearn, students in residence halls had difficulty accessing the network because so much of the bandwidth was being used for file-sharing,” said Mary Shaffer, Cal Poly’s electronic and information technology policy and compliance officer. “So bandwidth throttling was put in place.”
Bandwidth throttling involves intentionally slowing down the Internet to help alleviate congestion and reduce the risk of service outages. It also limits the amount of bandwidth users have to upload and download files, stream video and use file-sharing applications. Traffic over Cal Poly’s network is monitored by Information Technology Services (ITS) in conjunction with University Housing, but they can only see aggregate bandwidth usage.
While bandwidth-heavy peer-to-peer applications work more slowly on Cal Poly’s network, they are still usable. In addition, network equipment such as routers, hubs, switches, airports and internal and external network connections like BitTorrent, Alliance and Waste are usable on the network without detection. Unless a copyright holder sends a complaint to the chief information officer (CIO), or university staff finds a forbidden piece of equipment, ITS and University Housing remain unaware.
“We aren’t looking for the problem,” said Carole Schaffer, associate director of housing. “We are notified by the CIO when there’s a problem, and only then do we locate the offending student.”
How the university finds you
Each notice of infringement includes an IP address that ITS uses to locate the offending machine and user. The user’s access to the network is then blocked and a notification is sent to the offender. The student is then required to meet with either University Housing or the Office of Student Rights and Responsibilities to demonstrate they’ve removed the infringing material.
Repeat offenders can be subject to harsher penalties, including disciplinary probation, suspension or expulsion, according to Adrienne Miller, director of the Office of Student Rights and Responsibilities.
While Cal Poly is far from being a major piracy hub, it has received 520 official copyright complaints in the past three years from the likes of NBC Universal, HBO and the Motion Picture Association of America (MPAA), Shaffer said.
“The RIAA (Recording Industry Association of America) used to be our biggest complainant,” Shaffer said. “But with shows like ‘Game of Thrones,’ ‘Breaking Bad’ and ‘Vampire Diaries,’ music is less of an issue.”
Though no complaint has resulted in litigation or expulsion, it should be noted that each violation was not discovered by the university, but by copyright holders themselves.
This is often accomplished through third-party digital rights management (DRM) companies that specialize in anti-piracy monitoring. These companies use methods like torrent-trackers, search engine removal and ad monitoring to disrupt illegal video on-demand (streaming) revenue models.
Most pre-litigation letters and take down notices are sent not by the copyright holders themselves, but by companies like these.
No safe harbor
According to a 2011 survey conducted by Princeton Research Associates and funded by Google, 70 percent of respondents 18 to 29 said they regularly engage in downloading copyrighted material and only 52 percent believe there should be any penalty for doing so.
“I downloaded the second season of ‘Arrow’ because it wasn’t available on Netflix,” mechanical engineering sophomore Kevin Jafarey said. “I’m already paying for a service, and since they didn’t have what I wanted, I shouldn’t be penalized since was forced to seek alternate means.”
But there are penalties. Recent decades have given copyright holders much more legal ammunition in the form of the Digital Millennium Copyright Act (DMCA).
Passed in 1998, the DMCA raised the penalties for online piracy, and made circumventing access controls (cracking) a criminal offense, even if infringement hasn’t been committed. The law includes “safe harbor” provisions for Internet Service Providers, but universities don’t qualify for those provisions because they have what’s considered a “special relationship” with their students under current copyright law. This means Cal Poly can be held liable for student piracy.
While it might appear the law would give the university an incentive to pursue student piracy more aggressively, it actually doesn’t. Developing written anti-piracy policies and forwarding infringement notices to violators is all Cal Poly legally has to do to shift liability to the student.
“We try to educate students,” Schaffer said. “A lot of this has to do with awareness. Ultimately it’s the student’s legal responsibility to know and understand when they’re violating copyright law.”
Liability could still be an issue for Cal Poly if current disciplinary tactics fail to produce positive results. But so long as the problem doesn’t grow and Cal Poly can show it’s in compliance with the DMCA, students will most likely be held liable, according to university legal counsel Carlos Cordova.
Are we all casual pirates?
In 2011, the Netherlands-based DRM Company Irdeto acquired BayTSP, a copyright monitoring company headquartered in Santa Clara, Calif., that has done extensive research into piracy in America. Using BayTSP’s research, Irdeto released what it calls the “piracy continuum,” a broadly defined spectrum of different types of pirates and why they steal.
Included in the continuum are criminals, hackers, casual pirates, frustrated consumers, confused consumers and consumers.
Unlike criminals, who steal for profit, or hackers, who commit theft for the raw intellectual satisfaction of being able to bypass online security, casual pirates steal for their own consumption. In addition to being the largest group, they are also the least likely to perceive any ethical wrongdoing.
Agricultural and environmental plant sciences senior Tommy Jue said he regularly torrents music, but doesn’t feel like he’s stealing.
“It’s not tangible, like stealing a piece of fruit,” he said. “The way I see music is that it’s not really a commodity, it’s something to be experienced and shared.”
Students at more than 80 universities have been sued by the Recording Industry Association of American (RIAA) in the past 10 years, with many cases gaining national attention. Casey Lentz, a 21-year-old former San Francisco State student was sued by the RIAA for downloading 10 songs, which is seeking $7,500 in damages for each. At the time, the RIAA was suing so many students it had to set up a website just to help student infringers make payments.
Jue said he was familiar with some of the high-profile recording industry litigation, but he doesn’t worry because he only does it in moderation. Though Jue said he feels the occasional twinge of guilt, he said he’ll continue file-sharing.
“I don’t have a justification, it’s just that it’s free and easily available,” he said. “Because otherwise it costs money. Simple as that.”