A Sensible Compromise

Recently, the Motion Picture Association of America began sending thousands of letters to colleges and universities across the country, reminding them of their obligation to set up a "written plan to effectively combat the unauthorized distribution of copyright material by users of the institution's network" under the Higher Education Opportunity Act of 2008. Because we believe that intellectual property rights are important and the unauthorized downloading of copyrighted music, movies, and television programs is wrong, we applaud this move and hope that universities abide by the guidelines set down in the HEOA.

Our support for the MPAA’s actions is based on our belief that the unauthorized downloading of music, movies, and television programs, although easy, is questionable at the most basic level. In our postindustrial economy, the protection of intellectual property rights is important for several reasons. First, these rights must be safeguarded in order to provide an incentive for innovation. Without any guarantee of legitimacy, entrepreneurs will have no motivation to create new intellectual property, as it could be stolen at any time. Second, at a broader level, intellectual property rights are important because each person has a fundamental right to enjoy the fruits of his or her mental labor. Intellectual entrepreneurship requires a broad societal commitment to the rule of law and the importance of private enterprise.

This approach strikes the right balance between targeting individuals—who, in the end, are ultimately responsible for their online behavior—and universities, who provide the network resources that can be used to facilitate copyright violations. To that end, we hope that universities, rather than the MPAA's legal team, can serve a valuable role as an enforcer of sorts, by keeping chronic infringers off of their networks. In particular, we are concerned with the role of prolific "uploaders" who host and share thousands or millions of unauthorized copies of copyrighted content through online peer-to-peer networks and Usenet.

At a local level, we commend Harvard's Office of General Counsel for taking proactive measures to remain in compliance with the relevant federal legislation, including the Digital Millennium Copyright Act and the HEOA. The Faculty of Arts and Sciences’ “three strikes and you're out” policy regarding network access for repeat infringers is firm but fair, keeping repeat offenders off of the network while maintaining access for the vast majority of students. We are especially appreciative of the fact that this policy does not concern other College disciplinary bodies, as copyright infringement is a totally separate issue from student behavior or academic dishonesty.

Finally, more broadly speaking, we are excited by the move made by the entertainment industry as a whole toward embracing the Internet space. The provision of legal streaming media on websites like Hulu, Pandora, and Netflix all but eliminates the excuses of media pirates, who have argued for years that the entertainment industry is attempting to impose an outdated business model through obtrusive litigation. Although these moves are encouraging, however, we still see numerous opportunities for Internet Protocol-rights holders to expand in the Internet space, particularly in sports programming and back-catalogue access to popular television programs.

In the end, of course, the key to this entire approach will be its implementation. The onus is now on the universities in question to create an effective and transparent system that remains in compliance with relevant federal legislation. For our part, we welcome these changes to the law and hope that both the MPAA and the affected universities will work together to eliminate online piracy, replacing it with a new business model that wholeheartedly embraces the Internet through the provision of authorized online content.