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- Higher Education Opportunity Act (HEOA) [x]
- Federal Funding for IT (75)
- Federal Policy and Law (75)
- Policy and Law (75)
- Intellectual Property (41)
- P2P File Sharing (41)
- Copyright (26)
- Information Technology Management and Leadership (23)
- Teaching and Learning (23)
- Copyright Infringement (19)
- Distance Education (19)
- State Authorization (16)
- Student Financial Aid (13)
- Digital Millennium Copyright Act (DMCA) (9)
- Institutional Management (9)
- E-Learning (8)
- Online Piracy (7)
- Cybersecurity (6)
- Higher Education Funding (6)
- Legal Downloading (6)
Starting the week of Dec. 6, 2010, the Motion Picture Association of America (MPAA) sent a letter to all U.S. college and university presidents calling their attention to the anti-infringement provisions of the Higher Education Opportunity Act of 2008 (HEOA). Campus CIOs are copied. The letter echoes (and cites) material distributed by EDUCAUSE detailing the HEOA requirements that went into effect July 1, 2010, noting in particular the HEOA "email@example.com.
For full information about the P2P provisions in the Higher Education Opportunity Act, see the sections below. Here are some specific resources provided by EDUCAUSE:
- A comprehensive list of alternatives to illegal downloading
- A summary of penalties for violating copyright law
- Compliance details from role-model campuses and others
Background and Summary
The Higher Education Opportunity Act (HEOA) was signed into law on August 14, 2008, after protracted discussions and controversy. Proposed regulations for implementing the Act were issued by the Department of Education on August 21, 2009, and final regulations were issued on October 29, 2009. While enforcement of the HEOA provisions won't formally begin until July 1, 2010, as of August, 2008 all colleges and universities are required to make a good-faith effort at compliance.
Several sections of the HEOA deal with unauthorized file sharing on campus networks, imposing three 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 the unauthorized distribution of copyrighted materials" by users of its network, including "the use of one or more technology-based deterrents".
- A plan to "offer alternatives to illegal downloading".
- December 6, 2010 letter from the Motion Picture Association of America (MPAA)
- June 4, 2010 "Dear Colleague" letter from the U.S. Department of Education
- EDUCAUSE Summary
- EDUCAUSE Live! Webcast with Greg Jackson and Jack Bernard (November 23, 2009)
- Memorandum from the Law Office of Zick Rubin (November 20, 2009)
Each campus must distribute three pieces of information related to copyright policy and law:
i) A statement that explicitly informs its students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities;
ii) A summary of the penalties for violation of Federal copyright laws; and
iii) A description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system.
In its "Dear Colleague" letter of June 4, 2010, the Department of Education provided the following sample text for (ii):
Summary of Civil and Criminal Penalties for Violation of Federal Copyright Laws
Copyright infringement is the act of exercising, without permission or legal authority, one or more of the exclusive rights granted to the copyright owner under section 106 of the Copyright Act (Title 17 of the United States Code). These rights include the right to reproduce or distribute a copyrighted work. In the file-sharing context, downloading or uploading substantial parts of a copyrighted work without authority constitutes an infringement.
Penalties for copyright infringement include civil and criminal penalties. In general, anyone found liable for civil copyright infringement may be ordered to pay either actual damages or "statutory" damages affixed at not less than $750 and not more than $30,000 per work infringed. For "willful" infringement, a court may award up to $150,000 per work infringed. A court can, in its discretion, also assess costs and attorneys' fees. For details, see Title 17, United States Code, Sections 504, 505.
Willful copyright infringement can also result in criminal penalties, including imprisonment of up to five years and fines of up to $250,000 per offense.
This sample text will also appear in the Federal Student Aid Handbook.
A plan to effectively combat unauthorized distribution using technology-based deterrents
The Department of Education regulations specify that the plan must be implemented and in writing. It must also be " periodically reviewed " using "relevant assessment criteria" as determined by each campus. 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."
There are four categories of "technology-based deterrents":
- Bandwidth shaping
- Traffic monitoring to identify the largest bandwidth users
- A vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices
- A variety of commercial products designed to reduce or block illegal file sharing
These categories are equally valid in meeting the requirement to use one or more technology-based deterrents.
The plan must include "procedures for periodically reviewing the effectiveness...using relevant assessment criteria." The Department of Education's August 21, 2009 posting included the following narrative:
The final component of the plan, in proposed §668.14(b)(30)(i)(D), would require an institution to periodically review its plan to evaluate whether it is working. One of the most controversial aspects of the proposed regulations was the evaluation of whether a plan was effectively combating the unauthorized distribution of copyrighted material. There was extensive discussion over how a plan should be reviewed to determine its effectiveness, and how much discretion institutions should be given in this area. Ultimately, tentative agreement was reached on a provision requiring an institution to periodically review its plan using relevant assessment criteria, permitting an institution discretion to determine the most appropriate criteria. As the specifics of a plan will be determined by an institution, the Department believes that the institution is in the best position to determine the appropriate criteria to assess its plan. In some cases, appropriate assessment criteria might be process-based, so long as the institution's information system information does not contradict such a determination. Such process-based criteria might look at whether the institution is following best practices, as laid out in guidance worked out between copyright owners and institutions or as developed by similarly situated institutions that have devised effective methods to combat the unauthorized distribution of copyrighted material. In other cases, assessment criteria might be outcome- based. The criteria might look at whether there are reliable indications that a particular institution's plans are effective in combating the unauthorized distribution of copyrighted material. Among such indications may be ''before and after'' comparisons of bandwidth used for peer-to-peer applications, low recidivism rates, and reductions (either in absolute or in relative numbers) in the number of legitimate electronic infringement notices received from rights holders. The institution is expected to use the assessment criteria it determines are relevant to evaluate how effective its plans are in combating the unauthorized distribution of copyrighted materials by users of the institution's networks.
EDUCAUSE maintains a list of all known legitimate download services, which the community is welcome to link to.
Final HEOA Regulations Issued October 29, 2009
§ 668.14 Program participation agreement.
(b) By entering into a program participation agreement, an institution agrees that—
(30) The institution—
(i) Has developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include—
(A) The use of one or more technology-based deterrents;
(B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material, including that described in §668.43(a)(10);
(C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and
(D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. 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 with paragraph (b)(30) of this section will be, including those that prohibit content monitoring; and
(ii) Will, in consultation with the chief technology officer or other designated officer of the institution—
(A) Periodically review the legal alternatives for downloading or otherwise acquiring copyrighted material;
(B) Make available the results of the review in paragraph (b)(30)(ii)(A) of this section to its students through a Web site or other means; and
(C) To the extent practicable, offer legal alternatives for downloading or otherwise acquiring copyrighted material, as determined by the institution
§ 668.43 Institutional information.
(a) Institutional information that the institution must make readily available upon request to enrolled and prospective students under this subpart includes, but is not limited to—
(10) Institutional policies and sanctions related to copyright infringement, including—
(i) A statement that explicitly informs its students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities;
(ii) A summary of the penalties for violation of Federal copyright laws; and
(iii) A description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system
Updated May 2012
Library Items on this Topic
EDUCAUSE Library Items for Higher Education Opportunity Act (HEOA)
- Fighting Music and Movie Piracy Costs Colleges Considerably, Study Says
October 20, 2008
Colleges are spending a good deal of money to prevent students from downloading copyrighted music and movies, says a report released today. And with new requirements recently imposed on instituti…
- On Making Sausage
October 23, 2008
© 2008 Steve Worona. The text of this article is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License ( http://creativecommons.org/licenses/by-nc-nd/3.0/ ).…
- Emergency Overload
September 24, 2008
Weeks after enacting law requiring colleges to develop emergency response plans, Congress prepares to pass bill requiring colleges to develop emergency response plans. …
- P2P and the Higher Education Reauthorization Act: Next Steps
August 21, 2008
Congress recently passed H.R. 4137, the Higher Education Opportunity Act, a massive piece of legislation to reauthorize the Higher Education Act that the President will soon sign into law. Thi…
- HEA: A Huge, Exacting Accountability Bill
August 1, 2008
As Congress finally passes the sweeping college legislation, 5 years late, views on its significance and potential impact vary widely. As Congres…
- Recording and Movie Industries Win Out Over Colleges in Higher-Education Bill
July 30, 2008
"In the longstanding battle between the higher-education community and the entertainment industry over how aggressive colleges should be in trying to stop the swapping of music and video…
- 7 Years, 1,158 Pages ... and Almost Done
July 30, 2008
House-Senate panel reaches agreement on compromise legislation to renew the Higher Education Act, prompting more relief than satisfaction. Hous…
- Final HEOA Regulations Issued for P2P Provisions
October 29, 2009
Today, October 29, the Department of Education issued the final regulations related to Peer-to-Peer File Sharing on campus networks, which are unchanged from the proposed regulations post…
- House approves MPAA-backed college antipiracy rules
February 7, 2008
The U.S. House of Representatives on Thursday overwhelmingly approved a higher-education funding bill that includes controversial new antipiracy obligations for universities. The 354-58 vote…
- Accountability in Higher Education
January 29, 2008
A session at the ELI Annual Meeting 2008
This session will focus on activities that began with the Spellings Commission and have continued with the reauthorization of the Higher Education Act, as well as the responses by various publics a…