Transcript Cyberspace & Intellectual Property Update

Can't Stop the Music:
Dealing with File Sharing on Campus
Steven J. McDonald
Rhode Island School of Design
EDUCAUSE Live!
August 2, 2005
We Will Never Stop, Never Stop,
Never, Never, Never Stop
• In June 2005, an average of 8.9 million
people were logged onto file-sharing
networks at any given time, up from 3.8
million in August 2003, just before the
RIAA lawsuits started, and they were
trading more than 1 billion songs each
month (BigChampagne)
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But I Still Haven't Found
What I'm Looking For
• According to 2002 data, college students "are
twice as likely to have downloaded music
compared to the general population and they
are three times as likely to do so on any given
day" (Pew Internet Project)
• As of May 2003, more than one half of fulltime college students were downloading
music, and more than one third were
uploading it (Pew Internet Project)
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Listen to What the Man Said
"Some staggering statistics illustrate the
magnitude of the problem. Research of
FastTrack, a P2P file-sharing service, showed
that 16% of all the files available at any given
moment are located at . . . U.S. educational
institutions. In addition, FastTrack users
trading from . . . U.S. educational institutions
account for 10% of all users on FastTrack at
any given moment. It's unlikely that this
amount of file-sharing activity is in
furtherance of class assignments."
– Representative Lamar Smith
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Back on the Chain Gang
"This is a serious challenge that calls for
immediate, concrete action. . . . Specifically,
we urge you to adopt and implement policies
that:
– Inform students of their moral and legal
responsibilities to respect the rights of copyright
owners
– Specify what practices are, and are not,
acceptable on your school's network
– Monitor compliance
– Impose effective remedies against violators"
– RIAA Letter to College Presidents
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Hey, Teacher, Leave Them
Kids Alone!
"[T]hese issues require a circumspect
analysis of the impact of network monitoring
on privacy and academic freedom. While
network monitoring is appropriate for certain
purposes such as security and bandwidth
management, the surveillance of individuals'
Internet communications implicates important
rights, and raises questions about the
appropriate role of higher education
institutions in policing private behavior."
– EPIC Letter to College Presidents
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Liability: Users (a.k.a. Students)
• Direct infringement: "Anyone who, without the
authorization of the copyright owner, exercises any of
the exclusive rights of a copyright owner, . . . is an
infringer of copyright."
• Exclusive rights include copying and distribution, the
very functions that are at the heart of file-sharing
• (Very) strict liability
– Knowledge and intent are irrelevant to liability
– "'Innocent' infringement is infringement
nonetheless."
– Potential liabilities include as much as $150,000
per infringement, plus attorney fees and possible
criminal penalties
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But You Said It's Nice to Share
• "Space shifting" your own music for your own
personal use generally is regarded as fair use
– see, e.g., RIAA v. Diamond Multimedia
Systems (9th Cir. 1999)
• Transferring physical possession of a CD to
someone else is protected under the "first
sale" doctrine
• "Sharing" with 10,000,000 of your closest
personal friends is neither
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Face the Music
"[N]o one can say how often the software is
used to obtain copies of unprotected material.
But MGM's evidence gives reason to think
that the vast majority of users' downloads are
acts of infringement, and because well over
100 million copies of the software in question
are known to have been downloaded, and
billions of files are shared . . . each month,
the probable scope of copyright infringement
is staggering."
– MGM Studios v. Grokster, Ltd. (U.S. 2005)
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And 10,000 Maniacs
•
•
•
•
•
Number of defendants:
11,770
Potential damages:
$ millions each
Number of settlements:
~2,300
Average settlement:
~ $3,000-$5,000
Publicity value:
priceless
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I Fought the Law, and the Law Won
• BMG Music v. Gonzalez (N.D. Ill. 2005):
– Summary judgment – no need for trial
– Pre-purchase "sampling" is not fair use
– "Innocent" infringement: "Ignorance is no
defense to the law."
– 30 downloads = $22,500 in damages
• Statutory minimum
• Could have been $4.5 million
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Liability: ISPs
(a.k.a. Colleges and Universities)
• Contributory infringement: "[O]ne who,
with knowledge of the infringing activity,
induces, causes or materially
contributes to the infringing conduct of
another, may be held liable as a
'contributory infringer'."
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You Like to Think That You're
Immune to the Stuff, Oh Yeah
• However, the DMCA provides ISPs with
two important safe harbors from liability
in this context:
– Information Residing on Systems or
Networks At Direction of Users
– Transitory Digital Network Communications
• The definition of "service provider" is
quite broad and generic: "a provider of
online services or network access"
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General Conditions for Eligibility
• Must adopt, inform users of, and
"reasonably implement" a policy that
provides for the termination of the
accounts of "repeat infringers" in
"appropriate circumstances"
• Must accommodate, and not interfere
with, "standard technical measures"
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Eligibility Conditions for
Hosted Content Safe Harbor
• Have no actual knowledge that specific material is
infringing or awareness of facts and circumstances
from which it is apparent
– Need not monitor or affirmatively seek out infringement
• "Expeditiously" remove or disable access to infringing
material upon gaining such knowledge or awareness
• Derive no financial benefit directly attributable to the
infringing activity
• Register a designated agent to receive notices of
claimed infringement
• Comply with notice and takedown procedure upon
receipt of a notice that "substantially complies"
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Eligibility Conditions for
Conduit Safe Harbor
• Transmission is directed by someone else
• Transmission is carried out by an automatic
technical process with no selection of
material by provider
• Provider does not select recipients
• Any transient copy is not "ordinarily"
accessible to others or retained for longer
than "reasonably" necessary for the
transmission
• Material is transmitted without modification of
content
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Nota Bene
• Knowledge apparently doesn't matter
• Takedown requirement doesn't apply
• But virtually all of the takedown notices
colleges and universities are receiving
involve precisely this situation
• Can we just throw them away?
• Should we?
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And You May Ask Yourself
Am I Right? . . . Am I Wrong?
• Are you sure you've done everything the safe
harbor requires?
• Are students with respect to whom we receive
multiple notices "repeat infringers" we must
terminate under our "reasonably
implemented" policies anyway?
• Do we fail our students if we don't protect
them from themselves?
• What would Congress do if we were to take
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that position?
Options
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Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
Outsource
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Options
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•
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•
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•
•
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
Outsource
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Don't Punish Me with Brutality
• Progressive discipline
• Termination of room connection v. termination
of account
• "[A] service provider shall not be liable to any
person for any claim based on the service
provider's good faith disabling of access to, or
removal of, material or activity claimed to be
infringing or based on facts or circumstances
from which infringing activity is apparent,
regardless of whether the material or activity
is ultimately determined to be infringing."
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Doctor, Doctor, Give Me the News
• UCLA: Quarantine
• System automatically maps computer
associated with IP address identified in
DMCA complaint, "quarantines" it to a
restricted network, and notifies user
• User is required to take down allegedly
infringing material and acknowledge
compliance
• If user fails to do so, computer is blocked
from access to all networks
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Options
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Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
Outsource
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School of Hard Knocks
"What happens at Penn State if you are
caught? By statute, the University must
immediately block your network access when
we receive notification that a particular
computer has been involved in a violation of
the law. You may also be taken to court by
the copyright holder or charged in the federal
courts with a crime. That is not all that can
happen. . . . A student can be expelled and
an employee terminated under University
policy."
– Broadcast message from Penn State's Provost
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Stop! In the Name of Love
"These tactics may seem heavy-handed, but the
RIAA is correct that most music file-sharing
constitutes copyright infringement. . . . At an
institution devoted to the creation of art, we should be
especially mindful of these issues. Artists' and
designers' livelihoods are dependent in large part on
the creation of, and the respect of others for,
copyrights. Just as you would wish to protect the
economic value of your own copyrights, so, too, do
the musicians, filmmakers, and other fellow artists
whose work is being traded over the Internet without
appropriate compensation."
– Broadcast message to the RISD Community
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Options
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Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
Outsource
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Options
•
•
•
•
•
•
•
•
•
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
Outsource
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Options
•
•
•
•
•
•
•
•
•
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
Outsource
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Don't Let the Sun Go Down on Me
• University of Florida: ICARUS
(Integrated Computer Application for
Recognizing User Services)
• Automatically detects P2P traffic and
disables user account
• First strike: 30 minutes + tutorial
• Second strike: 5 days
• Third strike: judicial system
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Options
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Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
Outsource
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I Love Rock 'n Roll, So Put Another
Dime in the Jukebox, Baby
• Cornell: Network Usage Based Billing
("Pay by the Drink")
• For $2.75/month, each user can send or
receive up to 2 GB of data through Cornell's
internet connection to the outside world
• Internal traffic is free
• Excess usage costs $.0015/MB
• > 80% of users never have to pay more than
the basic fee
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Options
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Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
Outsource
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You Can't Always Get
What You Want
• Penn State: Napster subscription
service
• 3000 users in the first 24 hours
• 100,000 downloads in the first 24 hours
• ~ 1 million songs available
• But limited to "tethered downloads"
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Options
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Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
Outsource
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Options
• Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
• Filtering
• Market forces
? Offer alternatives
• Outsource
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Knowing Me, Knowing You
"A copyright owner . . . may request the clerk
of any United States district court to issue a
subpoena to a service provider for
identification of an alleged infringer . . . . The
subpoena shall . . . order the service provider
. . . to expeditiously disclose to the copyright
owner . . . information sufficient to identify the
alleged infringer of the material . . . to the
extent such information is available to the
service provider."
– 17 U.S.C. § 512(h)
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Our Lips Are Sealed
"The issue is whether § 512(h) applies to an
ISP acting only as a conduit for data
transferred between two internet users, such
as persons . . . sharing P2P files. . . . We
conclude from both the terms of § 512(h) and
the overall structure of § 512 that . . . a
subpoena may be issued only to an ISP
engaged in storing on its servers material that
is infringing or the subject of infringing
activity."
– RIAA v. Verizon Internet Services (D.C. Cir. 2003)
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Meet John Doe
• "The clerk shall issue a subpoena, signed but
otherwise in blank, to a party requesting it,
who shall complete it before service. An
attorney as officer of the court may also issue
and sign a subpoena on behalf of . . . a court
in which the attorney is authorized to practice
. . . ." – F.R.C.P. 45(a)(3)
–
–
–
–
No sworn declaration required
Not limited to identity
No requirement of judicial approval
Few grounds to contest
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Speak No Evil
"In contrast to many cases involving First Amendment
rights on the Internet, a person who engages in P2P
file sharing is not engaging in true expression. Such
an individual is not seeking to communicate a thought
or convey an idea. Instead, the individual's real
purpose is to obtain music for free. . . . In sum,
defendants' First Amendment right to remain
anonymous must give way to plaintiffs' right to use
the judicial process to pursue what appear to be
meritorious copyright infringement claims."
– Sony Music Entertainment, Inc. v. Does 1-40 (S.D.N.Y. 2004)
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Philadelphia Freedom
• Elektra Entertainment Group, Inc. v. Does 1-6
• Judge ordered advance notice, including
reference to attorney referral services
• No obligation to have the answer to the
question
• Also no obligation to assist students once
they have notice
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