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Proposed HEOA Regulations Issued for P2P Provisions

Last Friday, August 21, the Department of Education issued its long-awaited Notice of Proposed Rulemaking (NPRM) related to Peer-to-Peer File Sharing on campus networks. The proposed regulations reflect the agreement reached by representatives of higher education and the entertainment industry during Negotiated Rulemaking sessions held earlier this year.

The proposed regulations create three primary requirements:

  • 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 "one or more technology-based deterrents".
  • Agreement to "offer alternatives to illegal downloading".

Comments on the proposed regulations are due by September 21. The Department of Education's deadline for final adoption of HEOA regulations is November 1. Assuming the regulations remain in their current form, here are some of the most noteworthy elements:

The plan to "effectively combat" copyright abuse must be implemented and in writing. It must also be "periodically reviewed" using "relevant assessment criteria" as determined by each campus. The NPRM makes clear that campuses have a great deal of latitude in crafting the plan and choosing the assessment criteria: "Each institution retains the authority to determine what its particular plans for compliance...will be."

The NPRM lists four types of "technology-based deterrents", as specified in the report from Congress that accompanied the legislation:

  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

These categories are equally valid in meeting the requirement to utilize one or more technology-based deterrents.

The requirement to "offer alternatives to illegal downloading" specifies that the campus must periodically review the legal alternatives and announce the results of that review to its students via the Web or by other means.

With respect to the annual disclosure describing copyright law, the NPRM notes that the Department of Education will "work with representatives of copyright holders and institutions to develop a summary of the civil and criminal penalties for violation of Federal copyright laws to include as part of the Federal Student Aid Handbook that an institution may use to meet this requirement".

EDUCAUSE will collaborate with other higher education associations to provide guidance in implementing the final regulations. In addition, two related presentations are scheduled for the upcoming EDUCAUSE Annual Conference taking place November 3-6 in Denver:

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