V. Conclusion

The proposed amendment to the CCRA, in original form, would probably have been considered an unconstitutional violation of Congress' spending clause power. The copyright infringement reporting conditions placed on institutes of higher education in adherence to the proposed program were unrelated to the federal interest of making college more affordable, and, therefore, would have failed the five-part test articulated in Dole. The Act's biggest obstacles would have been overcoming the apparent disconnect between the conditions placed on the states and its relation to the federal interest in the spending program, and the constitutional issue regarding the First Amendment. Accordingly, a court applying heightened scrutiny would likely find that deterring copyright infringement is not rationally related to making college more affordable and is also in violation of the First Amendment. Indeed, depriving college students of their rights of freedom of speech and expression, along with creating a backdoor to monitor copyright infringement probably would have proven to be a fatal combination for the original amendment.

Fortunately, future college students need not worry about S.A. 2314, at least for the time being. The diluted version, S. 1642, does not have nearly as much bite as S.A. 2314. It would only require colleges and universities either to create or reevaluate their policies and procedures for deterring copyright infringement and to notify their students about these policies. This notification, along with all the other paperwork students receive upon arrival at college, would most likely be discarded before being read, never to be seen again.100 S. 1642, in its watered-down adaptation, is not akin to the tradeoff that had been taking place between universities and the federal government: receiving federal funding in return for “finger-pointing” and “tattling” on their students.101 However, as technology continues to advance, P2P sharing continues to expand, and copyright litigation continues to run rampant, this most likely will not be the last time we see the shadow of copyright monitoring and regulation sneaking into the college setting.