Re: Copyright infringement notice

[Owen DeLong <owen () delong com>]

Of all the legal advice I've seen posted to NANOG, I think this might be the first time it's come from a lawyer.

Great post, Anne. Thanks for the advice.

Owen

On Aug 22, 2012, at 11:17 , "Anne P. Mitchell, Esq." <amitchell () isipp com> wrote:

> > On Thu, Aug 16, 2012 at 6:16 AM, groupstudytac groupstudytac
> > <groupstudytac () gmail com> wrote:
> > > I get copyright notices from companies like Irdeto , saying that one of my
> > > customers IP is downloading unauthorized material using bittorent. I also
> > > have processes in place to handle such notices .
> > >
> > > Can anyone share how he handles such notices in his ISP environment , i am
> > > ready to adapt some valid steps to improve the existing process.
> > >
> > > Or should i just ignore such messages ?
> >
> > If you're in the U.S., the process for handling these notices is
> > prescribed by law, specifically the Digital Millennium Copyright Act
> > (search: DMCA takedown notice). It details what the infringement
> > notice must include in order to be actionable and what steps the ISP
> > must take on receipt of an actionable notice. It also prescribes
> > procedures for the alleged infringer to object and for the ISP to
> > restore the material following an objection.
> >
> > Follow the procedures described in the law to retain your immunity as
> > an ISP. Consult a local lawyer if you don't find them sufficiently
> > obvious.
>
> The thing that muddies this is that, as I understand it, the notice was not for takedown (i.e. there is not an 
> allegation that they are *hosting* infringing material) - it is a notice that one of their users *downloaded* 
> copyrighted material (IP, do I have that right?)
>
> This is part of the RIAA's "graduated response" program, to which several major ISPs, including AT&T, Verizon, and 
> Comcast,  have agreed.
>
> Basically, the accuser contacts the ISP, and the ISP sends a warning (a "copyright alert") to their user (without 
> giving up the user to the accuser).
>
> If the same user is accused subsequently, they get another, sterner warning.  In total there is a series of six 
> warnings, with "mitigation measures" accompanying the fifth and sixth warning.
>
> If I were counseling an ISP  - whether one that was part of the agreement, or not - I would say that the first order 
> is to *put your policy around copyright alerts in writing* - asap - and make it as specific as possible - and then 
> *ALWAYS FOLLOW IT EVERY SINGLE TIME*.    
>
> It almost (I say almost) doesn't matter what the policy is so long as it's reasonable, but it matters that it be 
> followed to the letter every time, no exceptions.
>
> And, if you are an ISP that isn't part of the agreement with the RIAA, it's still not a bad idea to structure your 
> policy to follow the six "copyright alert" structure, because there is some precedent there, and then you come off 
> looking like you are trying to do the right thing, which will make you a less easy target.
>
> These two articles give a pretty good explanation of the deal:
>
> https://www.eff.org/deeplinks/2012/03/graduated-response-deal-steamrollers-towards-july-1-launch
>
> http://arstechnica.com/tech-policy/2011/07/major-isps-agree-to-six-strikes-copyright-enforcement-plan/
>
> Anne
>
> Anne P. Mitchell, Esq
> CEO/President
> Institute for Social Internet Public Policy
> http://www.ISIPP.com 
> Member, Cal. Bar Cyberspace Law Committee
> ISIPP Email Accreditation:  http://www.SuretyMail.com