A Bill Without Bite: Why Effective Copyright Monitoring Was Not a Fair Trade-Off for Making College More Affordable

Senator Harry Reid proposed S. 1642, an amendment to the Higher Education Act of 1965. This amendment was a diluted version of his original amendment, S.A. 2314, which was proposed as an addition to the College Cost Reduction Act. Each of these amendments proposed procedures that would work to monitor copyright infringement more effectively on college campuses, especially in the areas of peer-to-peer sharing and digital downloading. Under constitutional standards established in South Dakota v. Dole, Senator Reid’s original amendment would not have passed constitutional muster, as its purpose was not reasonably related to the stated governmental interest. The purpose of the College Cost Reduction Act is to make college more affordable. Cutting college costs is unrelated to the goal of effectively monitoring copyright infringement, and therefore Congress would seem to be attempting to sneak a control on peer-to-peer sharing through a seemingly innocuous and beneficial statute. The possible constitutional problem, combined with the public outcry in response to S.A. 2314, resulted in the watered-down version now sitting as a potential amendment to the Higher Education Act of 1965. However, as Congress is continually trying to adjust copyright monitoring to advances in technology, the concerns voiced by the public and by Senator Reid have not been completely resolved.