Racketeering Enterprises on Campus
Release 3.13 November 2007
by Tom Sydnor*
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Abraham Lincoln concluded that intellectual property rights promote progress by adding "the fuel of interest to the fire of genius." Recently, many in Congress have been concerned that universities—which receive federal tax exemptions and grants—have been dousing "the fire of genius" by tolerating pervasive copyright infringement on their campus networks. Universities claim that these concerns are unjustified.
Those wondering who is right should read " University network still the wild, wild West," by the University of Maryland's newspaper, The Diamondback. It reports that students are trying to evade copyright enforcement by abandoning public filesharing networks like Ares and LimeWire in favor of intra-campus networks like those created by DC++: "On a recent Tuesday night, 700 DC++ users were swapping 29.3 terabytes worth of files—none of them legal."
DC++ , also called "Direct Connect," can create an invitation-only filesharing network that indexes shared files on a server called a "hub." By admitting only persons within the campus network, the hub administrator can make it more difficult for copyright holders to detect infringement. In short, you might use DC++ if you knew that filesharing was illegal and wanted to avoid getting caught—as many commenting on The Diamondback article noted. One said, "you should just leave DC++ out of the newspaper, we don't want the attention and the school doesn't want the uproar." Another observed, "this article has done none of us good. you should be ashamed. unless youre a retard who actually pays for music. [sic]"
The piece also notes that students had protested prior shutdowns of DC++: An earlier article reports that after a 2006 shutdown, the hub administrator posted on the hub the name of the student who had threatened to report him. That student was then reportedly threatened with financial ruin and physical violence by other students, some through an online protest group created "to unite frustrated students who enjoyed the services of what they felt was a privilege and a tradition for students."
This ugly history may have been on the minds of the Student Affairs Committee of Maryland's University Senate during its recent public vote on several anti-piracy proposals. Reportedly, the Student Affairs Committee had to vote on whether the university should 1) buy hardware that will solve only the part of the problem that is on the wane, 2) shutdown the on-campus DC++ servers to which piracy is gravitating, or 3) both. Oddly, the Committee was not asked whether the university should buy hardware that could block Ares, LimeWire and DC++. For example, SafeMedia Corporation CEO, Founder and Chief Technologist Safwat Fahmy stated, "SafeMedia's P2PD technology stops public filesharing networks like LimeWire and Ares. In addition, our unique 'lowest level subnet implementation' strategy eliminates the ability of any student outside the subnet from contacting DC++ servers anywhere on the University network."
Predictably, the Student Affairs Committee chose option #1: It voted in favor of blocking LimeWire and Ares, but voted "against seizing and shutting down the DC++ hub." The shutdown was rejected "because many university senators said that they opposed how the strategy would require the university [to] single out one student—the hub administrator...." The Chairman of the Committee actually refused to vote, claiming he needed "more information...."
This attempt to preserve the local DC++ network speaks eloquently to the efficacy of some campus anti-piracy efforts. Nevertheless, The Diamondback claims, "The university is working to convince students not to share files illegally. In August, they launched the PlayFair campaign." Unfortunately, its campaign may not have adequately stressed some details about the consequences of using DC++ on campus—details that could have life-altering implications for University of Maryland students.
Invitation-only Direct Connect networks can make it more difficult for private copyright holders to deter infringement. And that is why administrators of Direct Connect hubs were investigated by the FBI, prosecuted, and convicted in "Operation Digital Gridlock." Its prosecutions were restrained; hub administrators were convicted of conspiracy to commit criminal copyright infringement, but they were not charged with a potentially relevant and more serious felony—operating a racketeering enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). Prosecutors probably concluded that charging only the lesser felony would suffice to deter infringing use of programs like Direct Connect.
Today, they may be re-evaluating that conclusion.
Something has gone seriously wrong at any university where students conclude that on-campus racketeering—organized criminal activity that exploits university resources to conceal itself and intimidate critics—is "a privilege and a tradition."
Piracy may be a campus "tradition" but it is no "privilege": In Grokster, research libraries—including those at the University of Maryland— cited Operation Digital Gridlock as a model for deterring file-sharing piracy. Consequently, even the Supreme Court Justices most sympathetic to file-sharing cited RICO and agreed that "deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft." So did the U.S. Attorney who convicted the hub operators in Operation Digital Gridlock:
"It is illegal to trade in copyright-protected materials on the Internet. This is theft, plain and simple. If you are engaged in this behavior, you are on notice that you are not as anonymous as you might think."
It would be tragic if this message had to be re-sent, on campus, before it was understood. But it is equally tragic to see the members of a Student Affairs Committee have to choose between compromising their own personal and financial security and sending an effective message that organized on-campus piracy is illegal and immoral.
The situation at Maryland has improved—for now. The Diamondback article did have the effect that its critics feared: It made the university act. In an Open Letter to students, the university noted that because The Diamondback had reported what administrators already knew, it would respond by offering campus hub administrators "an opportunity to demonstrate that their network usage conforms to [the university's Acceptable Use Policy]. Should a specific operator's network usage not be shown to be in conformance, that operator will be asked to bring the usage into compliance." Another article reports that university officials—again citing The Diamondback—then met with the hub operator, who shut down the hub so that he would face the same penalty imposed upon all of his predecessors: None at all.
Predictably, campus ire then pummeled The Diamondback until it cracked. In an editorial, the staff of The Diamondback denounced copyright protection as "technophobia" driven by a "demonic" recording industry. They assured the campus that, personally, they had no problem if "700 DC++ users were swapping 29.3 terabytes worth of files—none of them legal":
Everyone who works on the content of this publication is a student. We are not estranged from the student population. We didn't want the hub shut down any more than any other student.
The University of Maryland deserves credit for implementing some filtering technologies and shutting down its DC++ hub, but it has proceeded in a way that sent very mixed messages about the underlying moral and legal imperatives.
It might seem that there is little hope for the rule of law at a university where students who orchestrate terabyte-scale piracy go unpunished while students who expose them are publicly named and shamed. Fortunately, not all students are so short-sighted. One commenting on The Diamondback editorial put it best:
The editorial states that "the free exchange of ideas" is a "hallmark of American universities" but fails to mention that without intellectual property rights (in the form of Copyright protection) there can never be a truly free exchange of ideas, just theft and a stifling of the creative process.
The RIAA is 100% correct on this issue. Copyright law MUST be enforced and intellectual property rights MUST be protected or there will be no music, no movies, no art.
I am glad that the university finally decided to do the right thing and shut down a service that had become a vehicle for repeated violations of federal law.
Even at the University of Maryland, hope—and respect for "the fire of genius"—may endure.