Issues regarding DMCA notices from the RIAA

[Mark Luker <mluker () EDUCAUSE EDU>]

As part of our investigation into the recent "spike" in DMCA
notifications sent to campuses by the RIAA, EDUCAUSE has learned some
details we believe will be of importance to many in the higher education
community.

In particular, we've learned that DMCA notices are frequently triggered
by the presence in a "shared folder" of a file whose distribution from
that shared folder would be unauthorized, rather than by observation of
an actual unauthorized transmission of such a file. For simplicity,
we'll call these "folder-based" and "transmission-based" DMCA notices.

We are told that the RIAA's DMCA notices are almost completely
folder-based, and have been so for many years. (The exception is
BitTorrent, where actual transmissions do play a role in the process.)
The RIAA says they believed campuses were aware of this but, based on
conversations with IT staff from around the higher education community,
we know that many campuses were not.

The distinction between folder- and transmission-based infringement
claims is important to campuses for a variety of reasons:

1- Confirmation. Upon receipt of a DMCA notice, some campuses use
resources such as NetFlow logs to "sanity check" the data included in
the notice, attempting to confirm that the claimed infringement was
consistent with recorded network activity at the indicated time. Network
activity characteristic of a folder-based infringement claim is
radically different from network activity characteristic of a
transmission-based claim.

2- Judicial charges. In response to a DMCA notice, some campuses
initiate formal or informal judicial charges against the individual
associated with the identified IP address, apply administrative
penalties, or notify the individual and log the complaint for possible
future action. In order to appropriately carry out these and other
related processes -- and to best capture the "teachable moment" -- the
campus must know whether the notice is folder- or transmission-based.

3- Repeat notifications. We are told that the RIAA will not generally
send multiple notices based on the presence of a particular file in a
particular shared folder on a particular machine. If the IP address of
such a machine changes, however -- as is the norm in DHCP-based networks
-- it may appear to the RIAA that multiple folder-based infringements
have occurred, and multiple notices for the same file on the same
machine may be generated.

4- Network filters. Some systems -- such as Audible Magic -- attempt to
block transmission of nominally infringing content but do not attempt to
block visibility of files in shared folders. Such systems might thus be
expected to lower the number of transmission-based notices but would
have little or no effect on folder-based notices.

In considering how these observations impact your campus, note the
following:

        - This message applies only to the RIAA's processes, not those
of the MPAA or other content owners. Further, while the RIAA has stated
that their DMCA notices are folder-based, they stress that their Early
Settlement Letters and lawsuits are transmission-based.

        - EDUCAUSE takes no position at this time as to whether the
presence of a file in a "shared folder" does or does not constitute
copyright infringement. Different courts have rendered different
opinions on this so-called "making available" theory, most recently
rejecting the theory on April 29 in Atlantic v Howell
(http://www.eff.org/deeplinks/2008/04/big-victory-atlantic-v-howell-cour
t-rejects-making).


        - EDUCAUSE also takes no position as to whether it is or is not
appropriate for campuses to impose judicial or other sanctions against
community members based solely on folder-based infringement claims.


EDUCAUSE and our members take copyright infringement seriously, with
campus policies and practices going far beyond what the law requires and
far beyond those of commercial ISP's. Without a clear understanding of
how DMCA notices are generated, campuses cannot implement their policies
appropriately, and so we will continue to seek clarification on these
details from the entertainment industry.

We note in closing that the distinction between folder- and
transmission-based infringement has no direct bearing on the recent
"spike" in DMCA notifications. The RIAA affirms that the spike is due
not to an increase in infringing activity on campus networks, but simply
to changes in the mechanism used to detect and report the presence of
files in shared folders. The number of DMCA notices received by any
campus thus cannot be meaningfully correlated with the amount of actual
infringement taking place on the campus network. For this reason,
EDUCAUSE believes that counting DMCA notices is a completely
inappropriate measure of success in combating infringement and an
equally inappropriate basis for comparing the amount of infringement
taking place campus-to-campus or year-to-year.

 

 

Mark Luker, VP EDUCAUSE; Suite 1010, 1150 18th St. NW; Wash DC 20036

202-872-4200 x 5351; 202-872-4318 fax; mluker () educause edu