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Abstract

In 2008, the United States federal government passed the Higher Education Opportunity Act. This bill included provisions long championed by media companies requiring higher education institutions to implement technical deterrents to combat the unauthorized distribution of copyrighted material by users of their computer networks. Many at the highest levels of academia were concerned that these provisions would also affect academic freedom by restricting the free flow of information and knowledge. Some also viewed it as an unnecessary and costly intrusion into the affairs of higher education by the federal government and media conglomerates. The researcher's main hypothesis was that the controversy arose because there is natural tension between academic institutions, which mostly produce public goods (non-rivalrous, non-excludable goods), and commercial authors and media conglomerates, which produce club goods (non-rivalrous, excludable goods). Public goods, such as knowledge, do not become less valuable with unfettered distribution, while club goods, such as music, movies, and books may become less valuable. The researcher reviewed hundreds of documents, emails, letters, and transcripts of hearings and conducted multiple interviews. The findings suggest that a lack of knowledge concerning the form of the copyright-protection provisions fueled initial concerns that the provisions would be burdensome and overly intrusive. While the researcher found clear examples of fears by top academics that expressed the tension between public goods and protection of club goods, the predicted problems failed to materialize and did not appear to influence the final language of the law or code of federal regulations. IT and security staff, especially, seemed to accept that the free flow of information and the protection of copyrighted works were not incompatible. At the grass roots level, the debate was rarely framed in an oppositional manner. In fact, many of the subjects expressed the opposite view: technical deterrents to copyright infringement and other controls on academic networks, rather than impeding the dissemination of ideas, created "space" on the networks for the dissemination of ideas, and for scholarship and research to flourish.

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