Re: RIAA DMCA notices malformed this school year

[Tracy Mitrano <tbm3 () CORNELL EDU>]

Hi Paul, I am so glad you wrote.  After I sent off my screed
yesterday I imagined people ducking under their desks for cover!

Legal counsel here has since the promulgation of the DMCA recognized
the distinction between 512(a), conduit provisions [where ISP does
not have liability, except that which you nicely describe below where
we have to "terminate the offender ..." :-] and 512(c) safe harbor
provisions for when the ISP is also the server.  CU most definitely
takes advantage of those 512(c) provisions, it has a registered agent
and a process whereby we use network staff to "expeditiously
eliminate the traffic from the network" and all of the other
requirements of that section.

Since 2002 as a matter of policy we have acted internally on DMCA
notices that resolve to users on our network -- the vast majority of
which are students, although we get the occasional faculty or staff
member (who usually claim it was the activity of their son or
daughter even as they accept responsibility for the access to the CU
network).  For a number of years we sent those users over to Judicial
Administration for adjudication and I believe that they applied
traditional discipline such as community service.  Incidentally, we
initiated this approach in the early years when content owners ask
for our help and in the hope that together, as partners, we could
work outside of legal frameworks toward an accommodation.  As the
volume of DMCA notices began to increase over the years, the JA
experienced the administrative burden in such a way as to resist
adjudication in almost any form.  At the same time it became more
clear to us that what the students needed was education about the
law, technology of file share systems and practices of the content
owners to enforce their copyrights, so we created a Copyright
Education Program that is now the "discipline" for first time
offenders.  [For repeat offenders, as you note per 512(a) we
"terminate" ... their account for four weeks.]  I wrote the text:
http://www.cit.cornell.edu/policy/copyright/primer.html and our for-
profit subsidiary, eCornell, for a fee produced the on-line mini-
course program.  Students pay only the server fee, which is $35.00,
but must pass a tutorial at the end of the program.  So that both
students and parents would understand more about this whole area we
created a "Light" and freely-accessible version which can be found
here:  https://secure.ecornell.com/partner/

But funny you should ask: as is the case with many schools we --
counsel, IT, Student Services, Judicial Administration, Vice-Provost
of Undergraduate Education, etc. -- are talking about re-evaluating
our approaches not only to DMCA but to the whole panoply of
challenges that higher education faces in this area, and especially
in light of the new provisions in the Reauthorized Higher Education Act.

So in short: we do act on the notices, but we do so as a matter of
policy, and in the spirit of our educational missions, and not
because we believe that the law requires us to do so specifically
when we are the conduit and most definitely not out of a fear of
content industry.

Finally, on that educational note, we created a three minute video
this year for all students and will incorporate it into our NetID
Activation for new students next year.  In other words, they will see
it  before they register their computers on the campus network.
Feel free to use the link if you like it:  http://
traindoc.cit.cornell.edu/copyright/vidPlayer480.html

I hope I was not too scary this time!

Best, Tracy


On Sep 10, 2008, at 1:02 PM, Paul B. Henson wrote:

> On Tue, 9 Sep 2008, Tracy Mitrano wrote:
>
> > This event is a good time to remind everyone that the 512(c) safe
> > harbor
> > provisions that establish the DMCA agent registration with the LOC
> > is for
> > when the alleged infringement derives from the ISPs servers, i.e. an
> > institutional device, and is not a required procedure for conduit
> > connections, i.e. between two computers that the ISP (institution)
> > does
> > not own.
>
> We receive occasional DMCA notices for infringement coming from our
> residential student networks. We had assumed we were required to take
> action on these. I did some initial review of the 512(c) section you
> mentioned, and it does indeed seem that given these infringements are
> taking place from the student's personal computer and only
> traversing our
> network, we are not required to respond to the DMCA notice. The only
> requirement seems to be that some type of AUP be in place such that
> "repeat
> infringers" have their access to the network terminated. Yet, there
> is no
> clear definition of "repeat infringer", I read in one place that
> theoretically "multiple guilty verdicts in a court of law" could be
> considered a reasonable definition of "repeat infringer", I don't
> think
> anyone would currently meet that definition.
>
> As much as I would like to simply drop these annoying DMCA takedown
> requests for P2P into the bit bucket, I don't think our management
> would be
> on board. Tracy, does Cornell simply disregard DMCA takedowns where
> the
> infringement takes place on a student computer? Any other
> universities with
> such a policy I could use as a precedent?
>
>
> --
> Paul B. Henson  |  (909) 979-6361  |  http://www.csupomona.edu/
> ~henson/
> Operating Systems and Network Analyst  |  henson () csupomona edu
> California State Polytechnic University  |  Pomona CA 91768