Illegal downloading: When has the crackdown gone too far? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Illegal downloading: When has the crackdown gone too far?

Illegal downloading: When has the crackdown gone too far?

College students love music and movies, but they don’t always have the time or the financial means to feed their entertainment interests.  Illegal file sharing allows them to download the entertainment they love quickly and easily, without the cost.  It is especially prevalent among students on college campuses because of the high-speed Internet access provided by the schools, and the typical low regulation of Internet usage.  These factors make it so easy for students to share files that most students don’t even think they are doing anything wrong.  How could something that is this easy be illegal, right?

Well easy or not, file sharing is illegal because it infringes on the owner’s copyrighted material and results in financial loss for the entire entertainment industry.  Specifically, the Motion Picture Association of America states that 2.4 million jobs across the nation depend on the entertainment industry and online theft not only puts those currently in the field at risk of losing their jobs, but also leads to fewer jobs available in the market for college graduates.  There is conflicting data about the impact that illegal downloading has on the industry. Some research shows up to a 20% decrease in legal music sales due to illegal downloading.  Yet others show there is hardly any effect at all, or if there is a decrease in sales it cannot conclusively be contributed to illegal downloading.   Other factors may explain the decrease in legal sales of music and movies, such as an increase in other forms of entertainment available through the Internet.  Regardless of these alternative explanations, the MPAA stands by its position that illegal downloading leads to lost income and fewer jobs in the industry.

In order to prevent these negative effects, which flow from illegal file sharing, a new provision was added to the Higher Education Opportunity Act of 2008, requiring all schools and colleges that receive Title IV federal funding to implement anti-piracy policies.  This went into effect July 1, 2010, and requires institutions of higher education to help in the war against file sharing.  The MPAA sent a letter to colleges and universities nationwide threatening that if they do not comply with the Higher Education Opportunity Act, they will lose federal funding.  However, threatening loss of federal funding only harms access to higher education and limits resources available to students.  Why would a student who has never sought federal aid feel compelled to stop sharing files because if he is caught, his school could potentially lose federal funds, meaning some student down the road may not be able to receive federal aid?  Most students are not interested in refraining from behavior because of the effect it might have on someone else.  Even the threat of direct punishment is not enough of a deterrent. The risk of individual fines is not threatening enough and they will continue to find ways around the rules.  One student even stated that he simply moved off campus to get around his college’s security policies.  In the past, students have been sued for copyright infringement, yet clearly these have not adequately served as examples to deter others since illegal downloading remains an issue on college campuses.  If threats of individual law suits do not prevent these students from illegal downloading, why would ambiguous threats, such as those from the MPAA, that don’t hit close to home stop these students?

While these threats may scare college administrators, technology is constantly advancing and students will find a way to get around these policies.  The schools are not the culprits, and the schools can only do so much to stop students from finding ways around the policies.  Unless the MPAA can find new ways to threaten students directly, the harm will persist.  And the likelihood of getting caught, or sued individually, is so low that most students feel the risk is worth the reward.  The best way to combat pirating is to make these students understand the consequences of their actions, not just what may happen to them, but to increase awareness of how their actions affect the entertainment industry and what it could mean for the music and movies they cherish so much.

The root of the problem is that students are simply unaware and uninformed on the issue.  Students believe the myths that they aren’t doing anything wrong, they would never get caught anyway, and that the action of one student downloading one song or movie couldn’t hurt anyone.  I recently surveyed 25 college students on the issue and asked how many of them have downloaded from illegal sites.  Eighteen of the 25 said they weren’t sure they would know if they had.  Nineteen of the 25 said they didn’t see the harm in file sharing. They said that they either wouldn’t have paid money to get the song or movie so the industry hasn’t lost anything, or that they found it hard to believe that one student’s actions could really have an impact on the industry as a whole.  Only one student was aware of the recent changes in the Higher Education Opportunity Act.  While a number of schools have written new policies to comply with the new provisions, they are bound to be ineffective if the students aren’t aware.  Most colleges only give information and warnings about the dangers of file sharing at orientation and may possibly give reminders at the start of each year.  Due to the fact these warnings are given infrequently, and at times when students are not engaged in any illegal activity, students tend to disregard the information as irrelevant. Perhaps students would be less likely to engage in illegal downloading if they are provided with constant reminders that the individual fines for infringement can be up to $30,000 per movie or song downloaded.

Hey guys, remember Napster!?

Hey guys, remember Napster!?


It is too soon to tell if the new regulations will be effective, but it begs the question if the end justify the means.  What good will it do to take away federal funding from colleges and universities?  Won’t that mean fewer resources for future generations of students?  If the MPAA follows through with these threats, thousands of students may lose funding they need to receive a quality education.  And what happens when technology advances again and outsmarts present copyright laws?  Will organizations like the MPAA threaten to take away even more?

Elizabeth Morris