II. Statement of Proposed Legislation: S. 1642 - Amendment to The Higher Education Act of 1965

Congress originally passed the Higher Education Act (HEA) to “strengthen the educational resources of our colleges and universities and to provide financial assistance for students in postsecondary and higher education.”13 Every five years, the HEA is revisited and reevaluated for any relevant and necessary changes and updates.14

There have been numerous proposed amendments to the CCRA and the HEA.15 Of particular interest was S.A. 2314, introduced by Senator Reid as an amendment to the CCRA. The purpose of this amendment was to encourage colleges and universities to implement systems designed to deter students from participating in technology-based copyright infringement and illegal peer-to-peer (P2P) sharing of intellectual property.16 In order to fulfill its purpose, the amendment stipulated that the Secretary of Education (“Secretary”) first identify which of the participating institutions were required to implement such a deterrent.17 Once the Secretary identified the target institutions, these institutions were then required either to create or to re-evaluate their policies and procedures for deterring “illegal downloading and distribution of copyrighted materials by students,” and to submit these policies and procedures to the Secretary for approval.18 The Secretary would then report the required information regarding the infringing users to the federal government.19

S. 1642, a revised version of S.A. 2314,20 is a proposed amendment to the CCRA.21 S. 1642 recommends more relaxed requirements for the deterrence of copyright infringement. This amendment pushes universities and colleges to implement policies and procedures that deal with possible infringement claims and provides students with notice of the university's policies regarding copyright infringement.22 Although these proposals now seem reasonable, the amendment was not always so agreeable.

The diluted amendment, as it now reads in S. 1642, merely requires “an annual disclosure that explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject students to civil and criminal liabilities.”23 The amendment also requires institutions to furnish the Secretary of Education with a “description of the institution's policies” for dealing with illegal P2P file sharing.24 This is a substantially less burdensome requirement for universities and colleges participating in the federal education program as they are currently only required to implement the policies and notify their students of these policies.25 The Secretary is not required to identify and target any specific university or college.26

As of September 27, 2007, the CCRA was signed by the President and became Public Law No. 110-84.27 As of July 27, 2007, S. 1642 is still being held at desk after being passed by the Senate with a ninety-five to zero vote.28 As this draft is only one of many HEA reauthorizations that have periodically arisen for Congressional consideration, the likelihood is good that the bulk of S. 1642 will be passed.29

Due to the tumultuous process that this amendment has gone through, from its original form in S.A. 2314 to its revised form in S. 1642,30 it is of particular interest that the original version was not adopted into the CCRA.31 As with all legislation, there may be a variety of different motivating factors for this outcome. However, the relevant constitutional issues and the fervent public resistance to the original amendment may provide the best insight as to why S.A. 2314 has ultimately been diluted and whittled away into a bill without bite.32