As Universities receive “pre-litigation letters,” they should be concerned with the effect of compliance on their educational missions, Charlie Nesson and I write in an op-ed in the Harvard Crimson.
Since its founding, Harvard has been an educational leader. Its 1650 charter broadly conceives its mission to include the advancement of all good literature, arts, and sciences, [and] the advancement and education of youth in all manner of good literature, arts, and sciences. From John Harvards library through todays my.harvard.edu, the University has worked to create and spread knowledge, educating citizens within and outside its walls.
Students and faculty use the Internet to gather and share knowledge now more than ever. Law professors at the Berkman Center for Internet & Society, for example, have conducted mock trials in the online environment of Second Life; law students have worked with faculty to offer cybercourses to the public at large. Students can collaborate on wiki websites, gather research materials from far-flung countries, and create multi-media projects to enhance their learning.
Yet new deterrence and education initiatives from the Recording Industry Association of America (RIAA) threaten access to this vibrant resource. The RIAA has already requested that universities serve as conduits for more than 1,200 pre-litigation letters. Seeking to outsource its enforcement costs, the RIAA asks universities to point fingers at their students, to filter their Internet access, and to pass along notices of claimed copyright infringement.
When copyright protection starts requiring the cooperation of uninvolved parties, at the cost of both financial and mission harm, those external costs outweigh its benefits. We need not condone infringement to conclude that 19th- and 20th-century copyright law is poorly suited to promote 21st-century knowledge. The old copyright-business models are inefficient ways to give artists incentives in the new digital environment.