Recording Industry Targets Swarthmore

Editor’s note: This article was initially published in The Daily Gazette, Swarthmore’s online, daily newspaper founded in Fall 1996. As of Fall 2018, the DG has merged with The Phoenix. See the about page to read more about the DG.

by Miles Skorpen

Last week, a student living in Worth received an official-looking notice demanding he stop sharing episodes from the hit TV show, “Heroes.” The letter was one of several thousand similar letters Swarthmore College received from companies across the world.

Generally, if a student immediately removes the files and doesn’t re-offend, takedown notices are harmless. In the past year, however, the Recording Industry Association of America [RIAA] has upped the ante. In the last eight months, the Association has sent out seven waves of letters to hundreds of colleges and universities across the country. Each letter threatens that the RIAA will initiate a lawsuit that could result in hundreds of thousands of dollars of damages unless the student settles immediately for a flat sum of $3,000.

The most recent wave of letters was sent to fifty-eight colleges. Two letters arrived at 500 College Avenue, Swarthmore, PA.

Students do not receive letters directly from the RIAA. Because the RIAA is only able to trace IP addresses back to a college, until recently letters would only reach specific students if the RIAA produced a subpoena compelling the college or university to reveal which user had been utilizing the IP address at the time of infringement. In the most recent letters, however, the RIAA bypassed the process of seeking subpoenas and instead asked school administrators to forward the letters to students.

An online technology journal, Ars Technica, described the letters as an “effort to … [make] an end-run around the judicial system.” Influential Harvard professor Charles Nesson agreed. He condemned the letters for distorting the Harvard’s educational mission by imposing “financial and non-monetary costs.” These non-monetary costs include “compromised student privacy, limited access to genuine educational resources, and restricted opportunities for new creative expression.”

The pre-litigation settlement letter sent to Swarthmore is available here [PDF]. MIT’s The Tech has made a pre-litigation settlement agreement available here [PDF].

No school would dispute that file-sharing is often illegal, nor would a school argue copyright-holders do not have a legal right to pursue pirates. However, schools must choose how they will respond to the RIAA when it attempts to enlist them to help enforce their copyrights.

The University of Michigan, Haverford College, and Williams College have decided to forward the letters to their students. The University of Nebraska-Lincoln is asking the RIAA to reimburse the school for processing complaints. The University of Arkansas’ network administrators have gone so far as to decide to ban all peer-to-peer file transfers, not just illegal sharing.

Meanwhile, the state universities of Kansas, Wisconsin, Oregon, and New Mexico have flatly refused to forward pre-litigation letters to students. University of Oregon’s General Counsel, Randy Geller, explained his school’s stance to the Oregon Daily Emerald saying, “It’s our policy not to send those letters along because we are neither the agent of the RIAA nor of any students.”

Refusal to forward the letters can elicit a response from the RIAA. When The College of William and Mary refused to reveal the identity of seven students, the RIAA filed suit. In early July, the RIAA lost the case. A federal judge prohibited the recording industry from filing John Doe lawsuits based only on IP addresses. Still, students are not necessarily safe just because their school refuses to forward the letters. The RIAA has the option to ask a judge for a subpoena in order to force an internet service provider (or a school) to supply all available information so the RIAA can track the user.

While many schools, including Swarthmore College, have the ability to link IP addresses to unique MAC addresses, it is not clear whether the information a school can be forced to provide will, in fact, allow the RIAA to pinpoint a specific user. “It is almost impossible to match an identity to an IP address and time-stamp without significant doubt,” explained Eric Astor ’09, President of FreeCulture, a copyright-freedom advocacy group.

ITS Director Judy Downing unequivocally told the Gazette that “the College never reveals a student name unless the College is presented with a subpoena.” She was advised by the College’s attorney to forward the pre-litigation notices to students, but to do so without revealing their identity to the RIAA. “We try to let students know they are in trouble,” she explained. One letter was sent to a member of the class of ’07 (a recent graduate) and another to a member of the class of ’08 (a current senior).

If students decide to settle, Swarthmore will not receive any further communication from the RIAA. However, the recent graduate apparently opted not to settle as the College was served with a subpoena and required to identify the student. This has Downing worried. The RIAA’s letter warned that the minimum damages under the law are $750 per song, and the RIAA noted the student has shared 458 audio files over LimeWire. This suggests that the RIAA may be seeking damages of $343,500 or more. And this figure could be on the low-end for many Swarthmore students. In a brief survey, the Gazette found students with collections ranging from 1,041 to 15,000 songs (though these files could be entirely legal).

“Three thousand dollars is a lot of money,” Downing said, referring to the settlement demand. “But court cases can really get people in trouble.”

When asked what steps the College is taking to address file-sharing, Downing focused on education. During orientation, all members of the class of ’11 were warned about these suits and about the dangers of peer-to-peer file-sharing. Furthermore, file-sharing took on a more important role during training for ITS student-employees. An hour-long training session was devoted to the subject.

It is notable that Swarthmore, unlike many other colleges, has not opted to ban peer-to-peer file sharing altogether. Swarthmore has ruled out the option of banning such programs. Glenn Stuaffer, the Associate Director of Enterprise Services, explained that file-sharing networks provide a forum where “a lot of open source distribution happens” and he emphasized that preserving this system is important for the College.

The school has also opted not to enact more rigorous punishments. Whereas Williams College, for example, will automatically remove a user from their network for a week after that student receives a first warning, Swarthmore initiates internal punishment only when students repeatedly receive take-down notices or pre-litigation letters. After two offenses, the student is referred to the Deans. Only a third offense will lead Swarthmore to remove network access.

It isn’t clear how much longer schools will have the freedom to establish their own policies in regard to file-sharing. In late July, Senate Majority Leader Harry Reid announced an amendment to the High Education Act designed to combat what he described as “campus-based digital theft.” [Amendment No. 2328]

Reid’s plan would have required schools to “provide evidence … that the institution has developed a plan for implementing a technology-based deterrent to prevent the illegal downloading.” His plan has worried many school administrators as the provision, had it gone through, would have forced the imposition of ineffective and restrictive software systems. In particular, it is not clear that there are any current technologies that can effectively differentiate between illegal and legal peer-to-peer file sharing. While this amendment never left committee, its existence strongly reflects the legislative goals of the RIAA. Similar laws may soon return to the legislative calendar.

ITS doesn’t have much advice for students, apart from simply suggesting that students not share files. Stauffer warned that the files that receive the most warnings are “music, movies, television, and games,” in that order. Public networks are especially vulnerable, as anytime a computer connects outside of Swarthmore College, its IP address may be visible to the rest of the world.

If you have already received a letter, contact a lawyer. The Electronic Freedom Foundation also publishes a guide with more details about file-sharing and this guide contains information that will help you respond to pre-litigation letters.

A copy of the correspondence between the RIAA and Swarthmore College is available here [PDF].