This has been a tough week for open education, at least in higher education. First came the news that Georgia Tech has taken down a 14-year-old student wiki site that allowed discussions and collaboration across courses and across semesters. Next came the news of more details on proposed intellectual property laws in Congress, dubbed SOPA for Stop Online Piracy Act, that are being drafted in a draconian manner to protect content providers while taking away reasonable "safe harbor" protections for internet site operators. Despite the nominal differences in these two pieces of legislation, I think that the Georgia Tech FERPA decision has shown just how dangerous SOPA could be to higher education.
The system under consideration at Georgia Tech was "Swikis", a site that students used for their coursework and broader educational usage. As described in the Chronicle, all it took was for one student to cause the institution to shut down the whole Swikis program, despite the fact that students choose how to participate. The reason for Georgia Tech's decision was their interpretation over violating FERPA regulations. No ambiguity here, just a simple interpretation by the institution despite the fact that FERPA was written into law in 1974, well before we had an internet and collaborative online software.
As Audrey Watters described while breaking the news:
. . . FERPA, the Family Educational Rights and Privacy Act, dates all the way back to 1974.
FERPA is meant to give students control over access to and disclosure of their educational records. This prevents schools from divulging information about a student’s grades, behavior or school work to anyone other than the student without that student’s consent (with some exceptions, such as to parties involved with student aid or to schools to which students are transferring). The classic example used to explain how FERPA works: you can’t post a list of students’ names and grades on a bulletin board in the hallway.
But what about posting students’ work publicly online?
Although it’s up to the U.S. Department of Education to enforce FERPA compliance, there’s news from Georgia Tech today that the school has made a decision to interpret FERPA as prohibiting just this sort of thing.
SOPA affects much more than higher education, as it is aimed to curtailing piracy of copyrighted content in all forms. As described by the San Francisco Chronicle:
A bipartisan bill introduced last week in the House of Representatives would mark a fundamental change in Internet law, shifting liability for copyright piracy from the infringer to the host website.
It would chip away at critical safeguards that have shaped the Internet as we know it today, and many worry it would make it far more difficult for the next YouTube, Facebook or Craigslist to emerge and succeed.
The Stop Online Piracy Act (SOPA) is the counterpart to the Senate's pending PROTECT IP Act, which already had rights groups, academics and many online businesses up in arms. But the House bill goes much further.
The SF Chronicle goes on to describe the relationship between SOPA and existing legislation:
It's impossible to understand what the bill could do without first understanding the enormous influence of the Digital Millennium Copyright Act.
By inoculating online businesses and Internet service providers against users' actions, the 1998 law created a legal environment where companies like Yelp, YouTube, eBay, Craigslist and Facebook could thrive.
It invited these companies to create lively and dynamic open forums, where people could post videos, sell things, share opinions, highlight articles and much more. That's because it removed the risk that the few users among millions who post copyrighted material, libelous statements or counterfeit goods would subject the site to business-crushing legal liabilities. (Not that various media giants haven't tried anyway.)
The DMCA isn't a free pass, as services are only protected so long as they act quickly when notified of illegal activity. But it correctly places the ultimate blame on the infringer, and the onus to police such activity on the copyright holder.
Much of this could change under SOPA.
One of the biggest issues is that SOPA would shift the responsibility for policing and detecting copyright violations to the site owners themselves, even outside of a typical due process. This is the removal of "safe harbor" provisions from existing DMCA.
Let me be up front in saying that there are real problems with student privacy and online copyright protection that should be addressed through legislation. FERPA and potentially SOPA both have reasonable goals on the surface. There are some real questions about the influence of Big Content on SOPA laws in particular, but that is not my point in this post. My criticisms are based more on how the laws are or might be implemented and interpreted by schools, and how these interpretations could impact educational innovation and collaboration.
SOPA in Higher Education
While the SOPA bills are in committee and the impacts are not fully understood - indeed, the bills might not get passed - there are some real dangers to educational usage that we need to follow. As drafted, SOPA could have a major impact on institutions using any form of educational technology to share content outside of a tightly-controlled password-protected course site. As we saw at EDUCAUSE this year, much of the potential of educational technology is to facilitate sharing of content outside of the traditional "walled gardens" of traditional LMS solutions, and enabling collaboration more broadly.
Bryan Alexander recently summarized a Google+ hangout discussion on the topic of SOPA's potential affect on higher education, and I think the group hit on some very important points.
Under the bill’s terms aggrieved IP holders can cut financial support to such sites, or have them shut down, or have their Web locations blocked at the Domain Name Services (DNS) level. The US attorney general can apparently create a blacklist of offending Web sites. Internet service providers (ISPs) would no longer have “safe harbor” protection; instead, they would be liable for content whose publication and access they facilitated. [snip]
Safe harbor - this may be the crux of the matter for schools. If ISPs no longer have safe harbor protection, campuses acting as ISPs will have extra incentive to police existing content, and to enforce more scrutiny of new creations. IT departments will have more work, much as librarians. Financially strapped institutions will have additional problems. [snip]
Fair use - SOPA makes no provision for that 1976 doctrine. Indeed, schools might find supporting fair use less appealing if infringement risks are more salient. Risk aversion might lead to decreased fair use claims.
How Georgia Tech Swikis Show Perils of SOPA
These are all good points discussed in the Google+ hangout, but I think the biggest issue is applying the Georgia Tech lesson to SOPA in the future.
Comparisons – SOPA could be like FERPA, in that campuses could take anticipatory steps to avoid possible legal actions.
All it took to erase 14 years of student educational content was one student complaint and one anticipatory step to avoid legal action. It is not hard to see how SOPA could create a minefield of potential legal actions, resulting in multiple institutions using their interpretations of the law (if enacted) to stifle innovation, particularly around sharing of content and general collaboration.
Add SOPA to the growing list of existing and proposed regulations and legislation that could impact education in a significant manner.