Update on HEOA and P2P

Last August, President Bush signed into law the 1,200-page Higher Education Opportunity Act (HEOA) of 2008, termed by one Senator "a well-intentioned contraption of unnecessary rules and regulations that waste time and money that ought to be spent on students and improving quality." (For the source of that quote and additional HEOA background and references, see On Making Sausage in EDUCAUSE Review.)

Several sections of the HEOA deal with unauthorized file-sharing on campus networks, imposing 3 general requirements on all U.S. colleges and universities:

• An annual disclosure to students describing copyright law and campus policies related to violating copyright law.
• A plan to "effectively combat" copyright abuse on the campus network using "a variety of technology-based deterrents".
• Agreement to "offer alternatives to illegal downloading".

Since enactment of the HEOA last August, the U. S. Department of Education has been working to produce detailed regulations for compliance with these and the many other new provisions of the law. (Note that, even in the absence of formal regulations, all campuses are already obligated to make at least a "good faith effort" to comply. See this memo and this Webcast for further guidance.)

In March, April, and May of this year, the Department of Education held a series of Negotiated Rulemaking sessions, where negotiators for interested stakeholders worked to agree on regulatory language. Negotiated Rulemaking is designed to streamline the rulemaking process by debating and resolving contentious issues in advance of the initial Notice of Proposed Rulemaking (NPRM). In theory, if consensus can be reached before the NPRM is issued, the subsequent process of accepting and responding to public comments will be eased. (For more on Negotiated Rulemaking, see Anna Gould's Chat with Terry Hartle in EDUCAUSE Review.)

For the HEOA file-sharing issue, the principal negotiators were Greg Jackson, CIO of the University of Chicago, representing the higher-education community, and David Green, Vice President for Public Policy of NBC/Universal, representing the entertainment industry. Greg, David, and the negotiators for 30 other "General and Non-Loan Programmatic Issues" became part of Team V. According to the Negotiated Rulemaking procedures, if Team V reached consensus on all 31 issues, the Department of Education would use the agreed-upon language for its proposed regulations and the stakeholders who participated in the negotiations would refrain from objecting to that proposal.

After a number of intense meetings of a subcommittee including Greg, David, and several other participants from higher education and from the entertainment industry, the two sides did manage to reach agreement on regulatory language for the HEOA file-sharing provisions. (See p. 164-173 of Draft Regulatory Language Issue Papers.) For the most part, the agreed-upon language mirrors the text of the legislation and of the relevant parts of the Managers Report that accompanied the HEOA.

Two noteworthy requirements were added to the legislatively mandated "plans to effectively combat the unauthorized distribution of copyrighted materials":

• The plans must be in writing and must be implemented.
• The plans must include "procedures for periodically reviewing [their] effectiveness ... using relevant assessment criteria".

The agreed-upon regulatory language also includes these elements:

• Explanation that the mandate to "offer alternatives to illegal downloading" does not require all campuses to enter into commercial contracts for online content but, rather, to "periodically review the legal alternatives for downloading" and "make available the results of the review ... through a Web site or other means".
• A statement, taken from the Manager's Report, that "no particular technology measures are favored or required for inclusion in an institution's plans, and each institution retains the authority to determine what its particular plans for compliance will be, including those that prohibit content monitoring".
• Clarification that the reference to using "a variety of technology-based deterrents" (to unauthorized file-sharing) means "one or more" such deterrents. The regulatory language does not define "technology-based deterrents", leaving the definition to the four categories specified in the Managers Report:
1. bandwidth shaping
2. traffic monitoring to identify the largest bandwidth users
3. a vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices
4. a variety of commercial products designed to reduce or block illegal file sharing

Back in March, when the first Negotiated Rulemaking session was held for Team V, file-sharing seemed like the issue least likely to come to resolution. By the end of the third and final Team V meeting in May, however, this conjecture proved false: The file-sharing negotiations had reached agreement, but negotiations on two other issues (year-round Pell grants and consumer information) had failed. Thus, Team V did not reach consensus, and the Department of Education is under no obligation to adopt any of regulatory language discussed during the negotiations, even in cases -- such as file-sharing -- where the negotiators had reached agreement.

Nonetheless, there is every reason to expect that the Department of Education will, in fact, adopt the file-sharing regulations developed during the Negotiated Rulemaking process. We'll know for certain in a few weeks, when the Department issues the NPRM covering HEOA. After the NPRM appears, there will be periods of public comment and responses to those comments, culminating on or before November 1 with publication of the final rules. EDUCAUSE will be monitoring that process carefully and will provide additional details along the way.

One final note: This year's EDUCAUSE Annual Conference takes place November 3-6 in Denver, just a couple of days after we expect to see the final language for HEOA compliance. We have therefore scheduled two sessions at the conference where the regulations will be discussed:

• Tuesday Nov. 3, 1:00-4:30pm: An EDUCAUSE Update on Peer-to-Peer File Sharing: Requirements, Options, and the Future (a pre-conference seminar requiring separate registration)
• Thursday Nov. 5, 11:45am-12:35pm: Complying with P2P Mandates in the Higher Education Opportunity Act of 2008

Mark your calendars!