LawMeme LawMeme Yale Law School  
LawMeme
Search LawMeme [ Advanced Search ]
 
 
 
 
Features: Penn State, Free Speech and Copyright Infringement
Posted by Paul Szynol on Wednesday, April 16 @ 17:20:21 EDT Free Expression
Just a handful of days after the RIAA sued four students at other universities, Penn State's Executive VP and Provost Rodney Erickson sent an email to 110,000 people at Penn State, in which he warned about the evils of copyright infringement. Penn's student-run newspaper reports here.

According to the article, among the self-help methods employed by the University is a 1.5 GB limit on each user's weekly Internet transmissions. In order to limit copyright infringement, in other words, Penn State limits free speech -- to roughly 1.5 GB every seven days.

Some students at Penn State are worried about their rights to free speech. And understandably so -- these restrictions raise First Amendment concerns.

Penn State's Internet use policy can be categorized as time, place and manner regulation of speech. This type of regulation does not limit speech, per se, but, rather, the context in which speech occurs. So, the government might, for instance, tell you that you can't protest in front of a school during the school's hours of operation. The purpose of such regulation would not be to eliminate speech per se, but to prohibit speech that, because of its timing rather than content, would hamper the school’s ability to operate.

The burden that such regulation imposes on speech, in turn, should be entirely incidental to the primary goal of the regulation. In the school case, the primary goal would be the elimination of sound that interferes with classes, not the elimination of speech per se. Protesters would be able to picket after classes end, and should, presumably, be free to say (almost) whatever they want.

Penn State's regulation, however, very clearly aims to limit speech, not merely its context. Erickson has admitted as much. The regulation's purpose, said the Provost, is to eliminate copyright infringement.

The burden that Penn State imposes on speech is not incidental, then, but direct and deliberate. The policy violates one of the cardinal checkpoints of time, place and manner regulations.

And there are a few other problems with the restriction.

In Court, time, place and manner regulations must pass intermediate scrutiny, a standard which requires that the regulation at issue serve an important government interest, is narrowly tailored, and does not burden speech any more than necessary. Penn State’s regulation does not pass the last two prongs of the test.

First, the regulation is not narrowly tailored, for it does not eliminate *only* material that is copyrighted and illegal to download. Rather, it eliminates all speech -- "good" and "bad" -- that each user would download/upload beyond the allotted 1.5 GB.

Second, it is not at all clear that this is the least speech-restrictive method of diminishing copyright infringement. What's magic about 1.5 GB? Maybe 2.0 GB is an equally effective quantum of transmission? If so, then Penn State's current policy is *not* the least speech-restrictive method.

Further, if Penn State can impose a contractual limit on the way university members use the Internet, could it not, instead of limiting transmission, impose a contract that obligates users to avoid illegal downloads/uploads? Is this not a less restrictive alternative?

In answer to these charges, Penn State might argue that Internet access is merely a privilege the university grants to its members, and that, therefore, the institution naturally has the discretion to regulate the scope of the privilege. Moreover, Penn State might respond by saying that users can connect to the Internet via private ISPs, and that the restriction thus leaves open other, ample channels of communication. If you don’t like Penn State’s restrictions, go elsewhere.

There is a serious problem with this defense. This line of argument, however plausible, would set a harmful precedent that other educational institutions could utilize in order to limit Internet access. And, if accepted, it would be somewhat ironic. Educational institutions -- particularly state-run educational institutions -- should promote, rather than chill, free speech.

It’s not clear whether students at Penn State are taking legal action against the University. Given the foregoing objections, however, and given the implications of Penn State's affirmative defense, perhaps they should.

 
Related Links
· More about Free Expression
· News by Paul Szynol


Most read story about Free Expression:
The Future of Virtual Kiddie Pr0n and Other Notes on Ashcroft v. Free Speech

Options

 Printer Friendly Page  Printer Friendly Page

 Send to a Friend  Send to a Friend

Threshold
  
The comments are owned by the poster. We aren't responsible for their content.

That's a Whole Lotta USENET Posts (Score: 1)
by MurphysLaw on Wednesday, April 16 @ 18:17:04 EDT
(User Info | Send a Message)
If a Penn State student can actually type over 1.5GB of text a week, we should petition to have the limit raised.


[ Reply to This ]


Re: Penn State, Free Speech and Copyright Infringement (Score: 0)
by Anonymous on Wednesday, April 16 @ 18:35:32 EDT
It's also worth pointing out that for many students in campus housing, there actually is no comparable alternative. Would the Penn State IT department let the cable guy into the dormitory basement to set up alternative broadband connections?


[ Reply to This ]


This is why Online Speech Advocates are Marginalized (Score: 0)
by Anonymous on Thursday, April 17 @ 02:15:26 EDT
Come on, 1.5 gigabytes a week as a limit on free speech? I may not be a lawyer yet, but with a year under my belt I think I can say that the arguments put forth in this article are really weak. Furthermore, the "least restrictive alternative" would both have worse effects on students and would be rejected by the anti copyright factions within this community.

First, is there any precedent for classifying a limit on bandwidth as a time, place, and manner restriction on free speech?

Second, what amount of that 1.5 gigabytes counts as speech? Does downloading linux and associated free software count as speech? Does the Constitution protect you from squandering your time, place, and manner for free speech on other activities?

Third, even though 1.5 gigabytes could potentially not be enough for certain types of speech (movies, music, etc. created by the student for non commercial purposes), how likely is it that Penn State would actually deny a student additional bandwidth after being shown a legitimate need for it? Extrememly unlikely, especially given the fact that the people administrating this system would most likely be techies sympathetic to the student.

Fourth, this article's least restrictive alternative, prohibiting illegal downloads, is already in place at nearly every University and has been a specatular failure. In order for it to work, the University would have to enforce it. That would involve punishing a student(s) for downloading music. Punishment would definitely be orse for the students, who we are attempting to protect here, than merely a messsage telling them that they have hit their monthly quota.

Fifth, this very web site cried out in protest when the RIAA enforced this "lesser restrictive alternative." Obviously, this is not what this community wants.

As both a computer scientist and a law student, I greatly appreciate what LawMeme is doing. Please don't squander the credibility that comes from being an Ivy League law school's web site by posting such weak arguments along with the news. This fight needs all the credibility it can get.

Howard Sherman


[ Reply to This ]


Research-suppression, in meteorology anyway (Score: 0)
by Anonymous on Thursday, April 17 @ 08:17:38 EDT
I'm a mathematician and environmental researcher (Ph.D., MIT 1978), and I see research-suppressing problems with this.

Penn State has (or used to have, until this restriction) a world-class meteorology department.

Sustaining student education at this level requires meteorology students to perform their own observational-meteorology download, forecast modeling, and analysis and evaluation of the observations and the model forecasts. The download volume required to do this is on the order of 800 megabytes per day -- so that two day's academic work goes over the limit!

This one is a stupid attack on academic freedom at the behest of the RIAA control-freaks. (There is a reason the RIAA has always settled the RICO lawsuits against it out of court: even given the vast legal budget they can bring to bear, they are terrified of the precedent that should be set.)



[ Reply to This ]


Leges humanae nascuntur, vivunt, moriuntur
Human laws are born, live, and die

Contributors retain copyright interests in all stories, comments and submissions.
Everything else copyright (c) 2002 by the Information Society Project.

This material may be distributed only subject to the terms and conditions
set forth in the Open Publication License, v1.0 or later.
The latest version is currently available at http://www.opencontent.org/openpub/.

You can syndicate our news with backend.php

Page Generation: 0.271 Seconds