Final HEOA Regulations Issued for P2P Provisions

Today, October 29, the Department of Education issued the final regulations related to Peer-to-Peer File Sharing on campus networks, which are unchanged from the proposed regulations posted August 21. The three primary requirements are thus now finalized:

• An annual disclosure to students describing copyright law and campus policies related to violating copyright law.
• A plan to "effectively combat" copyright abuse on the campus network using "one or more technology-based deterrents".
• Agreement to "offer alternatives to illegal downloading".

The plan to "effectively combat" copyright abuse must be implemented and in writing. It must also be "periodically reviewed" using "relevant assessment criteria" as determined by each campus. The final regulations retain the stipulation that campuses have a great deal of latitude in crafting the plan and choosing the assessment criteria: "Each institution retains the authority to determine what its particular plans for compliance...will be."

The August 21 announcement included several pages of narrative clarifying and expanding the regulations. (See, in particular, Federal Register pages 42391-42393.) Of greatest interest to most campuses is the list of four types of "technology-based deterrents", as specified in the report from Congress that accompanied the legislation:

1. Bandwidth shaping
2. Traffic monitoring to identify the largest bandwidth users
3. A vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices
4. A variety of commercial products designed to reduce or block illegal file sharing

The requirement to "offer alternatives to illegal downloading" specifies that each campus must periodically review the legal alternatives and announce the results of that review to its students via the Web or by other means. In answer to a question raised during the comment period for the proposed rules, today's report notes: "the Department anticipates that individual institutions, national associations, and commercial entities will develop and maintain up-to-date lists of legal alternatives to illegal downloading that may be referenced for compliance with this provision."

EDUCAUSE has, in fact, developed a comprehensive list of legal alternatives.

With respect to the annual disclosure describing copyright law, the August 21 announcement noted that the Department of Education will "work with representatives of copyright holders and institutions to develop a summary of the civil and criminal penalties for violation of Federal copyright laws to include as part of the Federal Student Aid Handbook that an institution may use to meet this requirement". EDUCAUSE will participate in developing this summary.