Defenders of the most egregious, blatant forms of online copyright piracy often suffer from what could be called Wile-E.-Coyote syndrome: They can become so fixated on throttling the roadrunner of copyright protection that they fail to notice that they have just run off a cliff and begun plunging downward.

For example, a federal judge has reportedly held that Boston University (BU) is such an incompetent internet-access provider that it cannot disclose the identities of allegedly infringing users of its network. In London-Sire Records, Inc. v. Does 1-4, Judge Gertner's recent order granted BU's "Motion to Quash" because "[BU] has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty."

For those seeking to enforce federal laws or rights other than copyrights, this order is all bad news. London-Sire suggests that BU has made its campus network into a de-facto safe harbor for anyone using the Internet to commit any crime. It would seem that terrorists, pedophiles, phishing-scheme operators, hackers, identity thieves, and copyright pirates who can access the Internet through BU's network now have a get-out-of-jail-free card--a judicial decision holding that any identifying data provided by BU is too hopelessly unreliable to support so much as the filing of a civil lawsuit.

Perhaps the U.S. Departments of Justice and Homeland Security should explain the broader implications of this ruling to BU before clumsy efforts that coddle student piracy help get someone defrauded, molested, or killed. BU's IT Department might also consider the potential legal implications of acts that tend to conceal the identity of lawbreakers. See, e.g., 18 U.S.C. §§ 2, 3, 4, 241, 307, and 2319.

For copyright owners, the news is mixed: Deterring campus piracy at BU may now become either cheaper or easier. London-Sire could suggest that BU has deliberately or negligently engineered a situation in which private parties just cannot prevent users of BU's network from committing even the most pervasive, deliberate violations of their federal rights. But if so, then BU may have proven that on its campus, copyrights must enforced by federal law enforcement agencies with wiretapping and criminal enforcement powers. Ironically, in Grokster, BU librarians argued for precisely this result--the criminal prosecution of BU students who infringe copyrights. Heaven knows what they do to students with overdue books.

Fortunately, BU's incompetence may thwart its bloodthirsty librarians' call for the prosecution of BU students. U.S. providers of internet-access services would have to be fools to fail to take the minor measures that qualify them for the so-called "conduit ISP" safe harbor of 17 U.S.C. § 512(a) that can protect them from almost all liability for third-party infringing uses of their networks. In effect, London-Sire seems to hold that BU's network was designed and administered by fools.

To qualify for the § 512(a) conduit safe harbor, an Internet-access provider must comply, at most, with three simple obligations:

• First, it must "reasonably implement" a policy for terminating subscribers and account holders "who are repeat infringers."

• Second, it must arguably show that it could comply with an injunction issued under § 512(j)(1)(B)(i) that requires the provider to cease providing access to someone "using the provider's service to engage in infringing activity."

• Third, it must not "induce" infringing uses of its network as in MGM Studios v. Grokster.

London-Sire suggests that BU may be violating all of these obligations. If BU cannot reliably identify an accused infringer, then it has necessarily failed to "reasonably implement" any sort of termination policy. Nor could it reliably comply with a § 512(j) injunctive order.

And as for inducement, that issue could be worth pursuing, though it would require extensive discovery. For example, in Grokster, the Supreme Court imposed inducement liability against online service providers who designed their networks to ensure that they could not effectively identify, or terminate the accounts of, infringing users. In the aftermath of Grokster, it seems quite telling that BU managed to design itself into the same position as the intentional-inducer defendants in Grokster. Nor is BU's affection for file-sharing programs easily explained. Some of these programs are almost surely compromising the privacy many of its students, and they may also be causing its employees to disclose educational records in violation of the Family Education and Privacy Rights Act (FERPA)--for reasons explained here and here. Universities that allow unrestricted use of file-sharing programs that create proven threats to personal and institutional privacy--while rarely being used for any lawful purpose--hardly seem genuinely concerned about anyone's "privacy."

Copyright owners seeking to deter infringing uses of BU's network may thus still have a viable civil enforcement option. They could announce that--in the hope of avoiding having to refer civil claims for criminal prosecution--they were instead suing Boston University for direct, secondary, and inducement liability for all infringing uses of its network. Like other copyright owners who have been forced by irresponsible online services providers to use civil lawsuits to remediate online infringement, they could remind the world that their goals were to deter piracy--not to file lawsuits--by offering generous terms for settlement, perhaps even offering to limit the relief requested to mass injunctive relief under § 512(j)(1)(B)(i).

Finally, Boston University's debacle should not overshadow the efforts of those colleges and universities that have actually begun working constructively with technologists and copyright owners in order to restore the rule of law on their campus networks. Many interesting experiments are underway, and I am looking forward to hearing more about their results.

posted by Thomas Sydnor @ 5:11 PM | Academia, Free Culture Movement, Internet: P2P, Search Engines..., Universities

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