Transcript Peer To Peer Filesharing on Campus:Selling

Peer To Peer
Filesharing on
Campus:
Selling Slinky Dresses,
Sleazy Massage Parlors,
and the Sony Betamax

• “Hey! How come there is no
outline on this in the notebook?”
• Because, I’m a Mercenary, and this
is WAR!

Who is at War?
• Copyright Owners vs. Pirates?
• Copyright Owners vs. Telecommunications?
• Code vs. Law?
• Copyright Owners vs. Colleges and Universities?

Copyright Owners v. Pirates
• This a riot in the “streets”
– Charles Nesson
– Howard Knopf
• It’s a “Movement”
– “As the largest grassroots effort in the history of the
world, file trading is essentially the average person’s
way of saying we don’t agree with the status quo.”
– Richard Menta

Copyright Owners v. Pirates
• The REVOLUTION has started!
– “What’s happening with global, peer-to-peer
networking is not altogether different rom what
happened when the American colonists realized they
were poorly served by the British Crown: The
colonists were obliged to cast off that power and
develop an economy better suited to their new
environment…. No law can be successfully imposed
on a huge population that does not morally support
it and possesses easy means for its invisible
evasion.” --John Perry Barlow

Copyright Owners v. Pirates
• This isn’t a revolution; it’s “Armageddon”
– “It's getting clear – alarmingly clear, I might
add – that we are in the midst of the
possibility of Armageddon.”
– Jack Valenti on file sharing

Copyright Owners v. Telecom
Senate Commerce Committee Hg on DMCA
subpoenas (Sept. 2003):
• “The essence of [the RIAA’s] position is that once they
make a filing with the court and pay their $25, due process
goes out the window. I believe it will be inevitable that
the Internet stalker, the child molester, the abusive spouse
or some other wacko who uses the Internet is going to[use
the subpoena power for evil purposes].”
– James Ellis, general counsel of SBC Communications

Copyright Owners v. Telecom
Senate Commerce Committee Hg on DMCA
subpoenas (Sept. 2003):
• “I cannot in good conscience support any tool that can be
used by pornographers, and potentially even more
distasteful actors to collect the identifying information of
Americans, especially our children.”
– Sen. Sam Brownback (R-Kan.), who introduced bill that would
require RIAA to file court case before issuing subpoena to get
user’s identity

Copyright Owners v. Telecom
Senate Commerce Committee Hg on DMCA
subpoenas (Sept. 2003):
• Broadband ISP’s like Verizon and SBC have “done
nothing” to educate consumers about the dangers of
piracy. “They have used a combination of overt and subtle
marketing strategies to [encourage consumers] to sign up
for DSL so they can get music for free and not have to go
to the record store anymore.”
– Cary Sherman, president of RIAA

Copyright Owners v. Telecom
Senate Commerce Committee Hg on DMCA
subpoenas (Sept. 2003):
• Verizon General Counsel William Barr shoots back at
Sherman’s charges, referring to the RIAA’s lawsuit 2
weeks earlier against Brianna LaHara, a 12-yr-old honors
student in New York:
– The recording industry has failed to embrace the
Internet as a distribution medium, opting instead to
fight piracy by declaring a “jihad against 12-yearold girls.”

Copyright Owners v. Telecom
Senate Commerce Committee Hg on DMCA
subpoenas (Sept. 2003):
• Sen. Barbara Boxer (D-Calif) shoots back at Verizon’s
William Barr, brandishing a Verizon DSL brochure that
she said touted file-sharing networks as an attractive
feature for broadband users:
– “It seems to me that you’re trying to protect the
privacy of theft. That’s what you’re about.”

Copyright owners v.
Colleges and Universities
Oct. 3, 2002 letter to [University/College President] from
“representatives of America’s creative community”:
• “We are concerned that an increasing and significant
number of students are using university networks to
engage in online piracy of copyrighted creative works.”
• “We believe there must be a substantial effort, both
disciplined and continuous, to bring this piracy under
control.”

• “The students and other users of your school’s network
who upload and download infringing copyrighted works
without permission of the owners are violating Federal
copyright law. “Theft” is a harsh word, but that it is, pure
and simple.”
• “As Dep. Asst. Atty General John Malcolm recently
stated, ‘Stealing is stealing, whether it’s done with sleight
of hand by sticking something in a pocket or it’s done with
the click of a mouse.’ It is no different from walking into
the campus bookstore and in a clandestine manner walking
out with a textbook without paying for it.”

• “Sheldon Steinbach, General Counsel of the American Council
on Education, said of such illegal file ‘sharing’ activities: ‘Why
is this issue important to higher education institutions? First,
educational institutions are in the business of forming students’
minds. A fundamental part of this formation is teaching about
ethics, personal responsibility, and respect for the rule of law.
Colleges and universities should not be in the business of
condoning or promoting unlawful activities.’”
• “We ask that you forward copies of this letter to your General
Counsel/Chief Legal Officer, as well as your Director of
Information Technology/Information Systems, your Chief
Financial Officer, and your Dean of Student Affairs.”

• “We urge you to adopt and implement policies that
– Inform students of their moral and legal
responsibilities to respect [our] rights
– Specifiy what practices are, and are not acceptable
on your school’s network
– Monitor compliance
– Impose effective remedies against violators”
• “Students must know that if they pirate copyrighted works
they are subject to legal liability.”

EPIC Letter to College Presidents
“[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.”

Copyright owners v.
Colleges and Universities
•Oct. 8, 2002 letter to “Colleagues” from the American
Council on Education, et al.
– “Digital file sharing technology has made it easier
than ever before for individuals to make and share a
large number of unauthorized copies of creative
works…..”
– “Unfortunately, in some cases, college and university
computer systems are being misused as servers to
distribute such unauthorized copies worldwide.”

– “Obviously, their [Oct. 3d] letter addresses this topic from
the perspective of the recording and movie industries and
reflects their interpretation of these issues. Nonetheless,
we are in total agreement that this issue is important and
merits your attention for multiple reasons”
– “We urge you to discuss this issue with all appropriate
campus officials including provosts, general counsels,
chief information officers, business officers, librarians,
and student affairs officers.”
– “In short, while this is a vexing issue with no simple
solutions, we hope you will join us in addressing” it.

Copyright owners v.
Colleges and Universities
•Joint Committee of the Higher Education and Entertainment
Communities
•December 10, 2002 Statement by Higher Education Members of
the Joint Committee:
– “With respect to the campus use of P2P technologies, the higher
education members of the joint committee believe that universities
have and will continue to meet their legal obligations to address
abuses of copyright law,
– “and further, that these institutions have educational and ethical
responsibilities to address the use and misuse of P2P
technologies.”

– “Universities believe in and support copyright law [and]
believe that all members of out university communities
should be law-abiding citizens….”
– “We also firmly embrace and support the concept of fair
use and related limitations and exceptions to proprietary
rights important to the academic community, and we will
seek to preserve the fullest exercise of those exemptions
as we support the exercise of proprietary rights.”
– Therefore, we will seek ways to reduce the inappropriate
use of P2P technology without restricting free speech and
expression, invading privacy, or limiting the legitimate
uses of P2P."

– “The systematic implementation of thoughtful
programs of education on copyright rights and
responsibilities and appropriate and inappropriate uses
of P2P technologies should be a central component of
such actions.
– “The development and application of carefully crafted
policies and procedures for network management can
also reduce inappropriate uses while preserving
appropriate uses of those networks.”

Hmmmmmmmm
Are You Sure About That?

Copyright owners v.
Colleges and Universities
•Hearing held on Feb. 26, 2003 by the Courts, the
Internet, and IP Subcommittee of the House Judiciary
Committee on P2P file sharing on campuses
•Chairman Smith recited data showing that
– 16% of files available through a P2P service at any given time were
located at IP addresses managed by U.S. educational institutions
– File traders from educational institution networks accounted for 10%
of all traders of the service at any given time ("It’s unlikely that this
amount of file-sharing activity is in furtherance of class
assignments.”)

•Testimony of Graham Spanier at 2/26 Hg:
– “Penn State has a vigorous program of copyright
education for our students and employees.”
– “We also have an indirect enforcement effort. … We
monitor the amount, but not the content, of traffic to
and from individual machines. Residence Hall users
are limited to 1.5 gigabytes of inbound or outbound
traffic per week. There are increasingly severe
restrictions for offenders who exceed these
limitations….For persistent violators there is a
complete suspension of network access.”

•Testimony of Graham Spanier at 2/26 Hg:
– “Yet despite these educational efforts, despite our
compliance with DMCA, and despite our technical
interventions, it is probably fair to say that
thousands of our students illegally download some
amount of copyrighted material.”
– “They are typical of college students nationally in
this regard and are party to a practice that is morally
wrong, is damaging to the entertainment industry,
and is inconsistent with the values of honesty and
integrity that students more typically profess.”

•Rep. Maxine Waters (D-Cal) at the Hearing:
– Pressed administrators whether they had ever
expelled a student for illegal file sharing, was told
“no,” and said; “The fact of the matter is, while I'm
sympathetic to the young people, they're breaking
the law. And until the university or this Committee
is willing to do something about it, we're just
wasting everybody's time.”
•Chariman Lamar Smith (R-Tex) at the Hearing:
– “What’s been done in education and enforcement
hasn’t worked that well.”

•Rep. John Conyers Jr. (D-Mich) at the Hearing:
– Noted that Congress had considered legislation that
would require people of convicted of sharing
copyrighted material online to serve at least five
years in prison.
– “We have to see from the education community a
ratcheting up of concern about this.”

“Colleges and universities have a duty to
address these crimes aggressively. School
presidents and other administrators cannot
stand by as taxpayer-funded information
systems and tuition dollars are being used to
build Internet systems that help facilitate
unethical behavior.”
– Representative Ric Keller

Copyright owners v.
Colleges and Universities
•In November 2002, Naval Academy seizes computers from 92
students after concluding machines had been used to share
copyrighted material. In April, Academy announces it has
“punished” 85 of the students.
•In April 2003, RIAA sues 4 students at Princeton, Rensselaer
Polytech, Michigan Tech who were running P2P music sharing
services on a university network, seeling $150,000 statutory
damages for each work infringed

Copyright owners v.
Colleges and Universities
• In May 2003, New Jersey Institute of Technology bans use of
file-sharing programs on institute’s network.
• Dean Gentul’s memo to students, staff and faculty said he
was not optimistic that education would change student
behavior: “In spite of efforts to educate our community …
we continue to receive notifications of possible violations
from the recording and software industries. The volume of
complaints continues to grow and the problem does not
appear to be easily solved since the act of copying or
downloading such materials appears to be imbedded in
student culture.”

•Dean Gentul’s memo also mentions the April lawsuits against
the 4 students running file-sharing programs at other universities
and declares that file sharing “put not only the students, but also
the university at risk for legal action.”
•Dean Gentul told Wired: “Our institution was receiving calls
from the RIAA on almost a daily basis, identifying addresses that
belonged to our students. It was growing in number to the point
in which we couldn’t handle it. When I can’t get my own 13year-old to stop [file sharing], I don’t know how I can get my
entire campus to stop.”

•NJIT Student Senate approves of ban. Senate President says: “I
think that banning [P2P programs] is the only thing that is going
to protect our students. I don’t want our students to get caught
up with lawsuits against Time-Warner.”
•Freshman Stephen Theodos reacts to ban: “I think it’s crappy-it’s pointless,” adding that students will find a way to share files
regardless of the ban. He wasn’t worried the ban on P2P systems
would hinder research or legitimate file-sharing activities: “For
the most part, that’s kind of an irrelevant concern. File sharing
here is mainly used for illegal activity.”

Code vs. Law
•Larry Lessig: “code is law”
•But see Tim Wu, “When Code Isn’t Law” (89
Virginia Law Review 679 June 2003)
– Code as a mechanism for avoiding law
– The Code designer as a “tax lawyer”
– Copyright Law vs. P2P file sharing code

Copyright Law: A Superpower
Vulnerable to Attack?
Weakness #1: Reliance on Gatekeepers
– “All U.S. copyright law … proceeds on the
assumption that effective and efficient copying is a
large-scale, publicly visible, commercial activity,
and therefore, that legal prohibitions against
unauthorized copying are enforceable.”
(Congressional Office of Technology Assessment,
1989)
– No material enforcement actions against end users
prior to 1990’s

Weakness #2: Legality and ethics of “home
copying” and “sharing with friends” are ambiguous
• 1971 Congressional Report: copyright was never meant to ‘restrain
the home recording, from broadcasts or from tapes or records, of
recorded performances”
• Sony v. Universal City Studios (U.S. 1984): time shifting = fair use
• 1989 Survey by Congressional Office of Technology Assessment:
most people think copying for friends is OK (63%), but copying for
money is wrong (76%)
– (see, e.g., Metallica)

The War Begins . . .

The Napster Offensive
•P2P with centralized database and search index:
efficient and scalable
•In less than 2 years (summer 1999 to Feb 2001), Napster
claimed 60 million registered users and 26 million+
active users. By 2001, analysts estimated users “sharing”
nearly 3 billion songs (about 200 million CDs) per
month.

The Napster Offensive
Effective because it exploited Weakness #2 of Copyright
Law: Home copying and sharing copies with friends
perceived by many to be socially acceptable
2000 Pew Internet Project Study:
• 78% of users do not consider downloading to be stealing
• 61% of users do not care if music they download is
copyrighted

The Napster Offensive
Napster failed because its design, which scaled impeccably,
failed to attack Weakness #1 of Copyright Law: Napster was
a “gatekeeper” that could be sued, enabling the RIAA to shut
down the network
A&M Records v. Napster (9th Cir. 2001): control
over the database and search index renders Napster
liable

The Battles Continue
• Aimster
• Gnutella
• Fastrack, KazaA, Grokster and Morpheus

In re Aimster Copyright Litigation
(7th Cir. June 2003)
•Essentially the same design as Napster, but
encrypted
•Judge Posner rejects Aimster’s claims of ignorance
and inability to monitor

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’.”

Let’s Go to the Videotape
“[T]he
sale of copying equipment, like
the sale of other articles of commerce, does
not constitute contributory infringement if the
product is widely used for legitimate,
unobjectionable purposes. Indeed, it need
merely be capable of substantial noninfringing
uses.”
– Sony Corp. v. Universal City Studios (U.S. 1984)

A Question of Degree?
“[W]hen a supplier is offering a product or
service that has noninfringing as well as infringing
uses, some estimate of the respective magnitudes
of these uses is necessary for a finding of
contributory infringement.”
– Judge Posner in Aimster

. . . A Question of Degree?
“A retailer of slinky dresses is not guilty of aiding
and abetting prostitution even if he knows that some of his
customers are prostitutes – he may even know which ones
are. The extent to which his activities and those of similar
sellers actually promote prostitution is likely to be slight
relative to the social costs of imposing a risk of
prosecution on him. But the owner of a massage parlor
who employs women who are capable of giving massages,
but in fact as he knows sell only sex and never massages
to their customers, is an aider and abettor of prostitution . .
. .”
– Judge Posner in Aimster

So, Is File Sharing More Like a
Slinky Dress or a “Massage”?
“The slinky-dress case corresponds to Sony, and, like
Sony, is not inconsistent with imposing liability on
the seller of a product or service that, as in the
massage-parlor case, is capable of noninfringing uses
but in fact is used only to infringe.”
“Aimster has failed to produce any evidence that its
service has ever been used for a noninfringing use,
let alone evidence concerning the frequency of such
uses.”

Gnutella
• Originally designed by AOL subsidiary (oops!)
• Open-source design was intentional effort to create
filesharing protocol that would avoid legal attack:
succeeded
• Failed because of scalability and social problems
– July 2000 crash
– No central mechanism to allocate traffic to more
capable users
– “Free riders”: 70% users shared no files, 50% of
files provided by 1% of users

MGM v. Grokster, et al.
(C.D.Cal. April 2003)
• FastTrack protocol and network created in 2000 by Dutch
programmers
• Created KazaA client application to access FastTrack
network, Grokster and Morpheus paid KazaA to access the
network
• FastTrack avoids scaling problems via superpeering
tiering system, which results in finite number of
superpeers doing bulk of work
• FastTrack applications improve efficiency by using central
servers to maintain user registrations, logging users, and
helping to initially locate peers

The Courage of One’s Convictions
• Grokster maintains its servers in Nevis, a
36 square-mile nation-state in the West
Indies
• When the lawsuits started, Kazaa
incorporated in Vanuatu for “tax reasons”


MGM v. Grokster, et al.
• By May 2003, KazaA had become the world’s
most downloaded software program of any kind,
with more than 230 million downloads
– Sept 2003 Cong. Testimony by RIAA’s Cary Sherman
• RIAA estimates millions of P2P users are now
downloading more than 2.6 billion copyrighted
files (mostly sound recordings) each month

MGM v. Grokster, et al.
• District Judge Wilson granted summary judgment
in favor of Grokster and Morpheus
– (KazaA did not appear in court to defend itself)
• Judge Wilson rejected MGM’s claims that
Grokster and Morpheus, like Napster, “are
capable of controlling the activities of their
users.”

MGM v. Grokster, et al.
• Judge Wilson took the issue of control as the sine
qua non of contributory liability under Sony:
• “The critical question is whether [defendants] do
anything, aside from distributing software, to
actively facilitate--or whether they could do
anything to stop--their users’ infringing activity.”

MGM v. Grokster, et al.
• Judge Wilson’s answer:
• “Neither Streamcast nor Grokster facilitates the exchange
of files between users the way Napster did. Users connect
to their respective networks, select which files to share,
send and receive searches, download files, all with no
material involvement of Defendants. If either Defendant
closed their doors and deactivated all computers within
their control, users of their products could continue
sharing files with little or no interruption.”

MGM v. Grokster, et al.
• Judge Wilson implicitly concluded that Grokster’s distribution of its
software was equivalent to the sale of “slinky dresses” to “known
prostitutes”:
• “Grokster and StreamCast are not significantly different from
companies that sell home video recorders or copy machines, both of
which can be and are used to infringe copyrights. While defendants,
like Sony or Xerox, may know that their products will be used
illegally by some (or even many) users, and may provide support
services and refinements that indirectly support such use, liability for
contributory infringement does not lie ‘merely because peer-to-peer
file sharing technology may be used to infringe plaintiffs'
copyrights.’”
• Hence, “absent some evidence of active and substantial contribution to
the infringement itself, Defendants cannot be liable.”

The Empire Strikes Back:
• Copyright Owners launch 2-front counteroffensive
• 1) The Legal Front: Pursue all the Gatekeepers they can
find
– Appealing the Grokster ruling
– the INDUCE Act
– Sue the users who offer “substantial amount” of
copyrighted music
– Threaten colleges and universities with liability if
they don’t clamp down on file sharing by their
students

The Empire Strikes Back:
• 2) The Cultural Front: Change social norms regarding
non-commercial copying and sharing by consumers
– Publicize lawsuits against “substantial” users
– “Educational” media campaign
– Obtain the “help” of colleges and universities in
changing the cultural norms that currently pervade
their student communities

University as Educator:
• Can it change the norms of its students?
• Should it?

Can’t Stop the Music
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 – before the RIAA lawsuits – more than one
half of full-time college students were downloading music,
and more than one third were uploading it (Pew Internet
Project)
The lawsuits initially cut the number of downloaders roughly
in half (Pew Internet Project), but that number has been
increasing again since October (NPD Group)










Music Wants to be Free

Is File Sharing “Immoral”?
“Theft, pure and simple”?
• Is the riot analogy apt?
• Is the Revolutionary War analogy apt?
• What does history teach us?
–Dickens
–Cable TV
–The VCR

Coming Soon to a
Computer Near You
“It's getting clear – alarmingly clear, I might add – that we are
in the midst of the possibility of Armageddon.” – Jack Valenti
on file sharing
“We are going to bleed and bleed and hemorrhage, unless this
Congress at least protects one industry that is able to retrieve
a surplus balance of trade and whose total future depends on
its protection from the savagery and the ravages of this
machine. . . . [T]he VCR is to the American film producer
and the American public as the Boston strangler is to the
woman home alone.” – Jack Valenti on the VCR

Funny You Should Bring
that up, Jack...
•Universal City Studios v. Sony (9th Cir. 1981)
•Sony v. Universal City Studios (U.S. 1984)

But what about your
students?
•RIAA announces on June 25, 2003 that it will start searching
internet file-sharing networks to identify users who offer
“substantial collections of mp3 files for downloading and expects
“file at least several hundred lawsuits seeking financial damages
within 8-10 weeks.”
•Mike Godwin: “I’m sure it’s going to freak them [file sharers]
out. The free ride is over.”
•Wayne Russo (Pres. of Grokster): “Forget about it, dude -- even
genocidal litigation can’t stop file sharers.”
•On September 8, 2003, the RIAA sued 261 people for file sharing.

Liability of 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

But You Said It’s Nice to Share
“Space shifting” is generally regarded as fair use – see, e.g.,
RIAA v. Diamond Multimedia Systems (9th Cir. 1999)
Transferring physical possession of a CD is protected under
the “first sale” doctrine
“Sharing” with 10,000,000 of your closest personal friends is
neither
• “Napster users who upload file names to the search index
for others to copy violate plaintiffs' distribution rights.
Napster users who download files containing copyrighted
music violate plaintiffs' reproduction rights.” – A&M
Records v. Napster (9th Cir. 2001)

What’s a Person to Do?

University as Gatekeeper:
Can it be liable for file sharing
by its students?
Contributory infringement is again the issue
However, the DMCA provides ISPs with safe harbors from
liability in four situations:
• Information Residing on Systems or Networks At
Direction of Users
• Transitory Digital Network Communications
• System Caching
• Information Location Tools

At Your Service
The definition of “service provider” is quite
broad and generic: “a provider of online
services or network access”
“Colleges and universities are just Internet
Service Providers that charge tuition.” –
former Harvard counsel Allan Ryan, Jr.
* Ellison v. Robertson (9th Cir. 2004)

General Conditions for Eligibility
Must adopt, “reasonably implement”, and
inform users of 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”

Be My Host
“A service provider shall not be
liable for . . . infringement of copyright
by reason of the storage at the direction
of a user of material that resides on a
system or network controlled or operated
by or for the service provider . . . .”

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”

Just Passing Through
“A service provider shall not be liable for . . .
infringement of copyright by reason of the provider's
transmitting, routing, or providing connections for,
material through a system or network controlled or
operated by or for the service provider, or by reason
of the intermediate and transient storage of that
material in the course of such transmitting, routing,
or providing connections . . . .”

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

Nota Bene
Knowledge apparently doesn’t matter
Takedown requirement does not apply
“But virtually all of the takedown notices we
are receiving involve precisely this situation!”
“Can we just throw them away?”
“Should we?”

You Sure Ask a Lot of Questions
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 that
position?

Options
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives

Options
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives

Back on the Chain Gang?
Progressive discipline
Termination of room connection v. termination of
account

Options
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
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Shock and Awe
“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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Kinder and Gentler
“While the tactics these organizations have chosen to
employ may seem heavy-handed, they are correct that much
of the file-trading that occurs through the use of these
programs constitutes copyright infringement. . . . At an
institution devoted to the creation of art, we should be
especially mindful of these issues. Artists’ 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
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives

Options
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
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Options
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
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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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Central Washington:
Audible Magic’s “CopySense”
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Options
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives
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Cornell: “Pay by the Drink”
Cornell has implemented a usage-based fee structure
For $3.00 per month, each user can send or receive
up to 2 gigabytes of data through Cornell’s internet
connection to the outside world
Internal traffic is free
Excess usage costs $.002 per megabyte
Cornell estimates that more than 80% of its users
will never have to pay more than the basic fee
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Options
Do nothing
Respond anyway
Education
Bandwidth usage limits and quotas
Packet shaping
Filtering
Market forces
Offer alternatives

If You Can’t Beat Them . . .
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. . . If You Can’t Beat Them
3000 users in the first 24 hours
100,000 downloads in the first 24 hours
500,000+ songs available

. . . If You Can’t Beat Them
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Getting to Know You,
Getting to Know All About 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.”
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Or Maybe Not
“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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DMCA v. FERPA?
“Upon receipt of the issued subpoena, .
. . the service provider shall expeditiously
disclose to the copyright owner or person
authorized by the copyright owner the
information required by the subpoena,
notwithstanding any other provision of law . .
. .”
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And the Winner is . . .
Unclear
In the meantime, insist on compliance with both DMCA and
FERPA
• A subpoena that does not comply with the DMCA
(apparently including a “conduit” subpoena) is not
“lawfully issued”
• A subpoena that is not issued by a court having
jurisdiction may not be “lawfully issued” – Boston College
v. RIAA (D. Mass. 2003)
• “Expeditiously” does not necessarily mean “immediately”,
so it may still be possible/
required to give “reasonable advance notice”
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Questions?
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