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This has been a tough week for open education, at least in higher education.  First came the news that Georgia Tech has taken down a 14-year-old student wiki site that allowed discussions and collaboration across courses and across semesters.  Next came the news of more details on proposed intellectual property laws in Congress, dubbed SOPA for Stop Online Piracy Act, that are being drafted in a draconian manner to protect content providers while taking away reasonable “safe harbor” protections for internet site operators.  Despite the nominal differences in these two pieces of legislation, I think that the Georgia Tech FERPA decision has shown just how dangerous SOPA could be to higher education.

Bryan Alexander recently summarized a Google+ hangout discussion on the topic of SOPA’s potential affect on higher education, and I think the group hit on some very important points. Under the bill’s terms aggrieved IP holders can cut financial support to such sites, or have them shut down, or have their Web locations blocked at the Domain Name Services (DNS) level.  The US attorney general can apparently create a blacklist of offending Web sites.  Internet service providers (ISPs) would no longer have “safe harbor” protection; instead, they would be liable for content whose publication and access they facilitated. [snip] Safe harbor - this may be the crux of the matter for schools.  If ISPs no longer have safe harbor protection, campuses acting as ISPs will have extra incentive to police existing content, and to enforce more scrutiny of new creations. IT departments will have more work, much as librarians.  Financially strapped institutions will have additional problems. [snip] Fair use - SOPA makes no provision for that 1976 doctrine.  Indeed, schools might find supporting fair use less appealing if infringement risks are more salient.    Risk aversion might lead to decreased fair use claims.