File-sharing and copyright law: How it affects you
Overview of file-sharing, copyright law and the DMCA
students for operating file-sharing servers, many questions arise about
the legal obligations of Stanford University and the users of its
network with regard to file-sharing and copyrighted materials. Here are
some answers to your questions about file-sharing, copyright law, and
University policies and practices.
Recently, there have been two new developments. First, the RIAA announced in December 2008 that it would stop sending "pre-litigation" settlement offers
and initiating mass lawsuits against those that did not respond.
Second, in July 2009 Stanford's Information Security Office announced a
new automated system for students to respond to DMCA complaints, including a quiz, and automatic re-routing to that page for those who don't respond.
Q. What is "file-sharing?"
A. File-sharing is the process of exchanging files over the Internet.
The most common forms of file-sharing are: running an FTP server or
using an FTP program, utilizing Internet Relay Chat (IRC), and using Peer-to-Peer (P2P) programs such as KaZaA (which uses the FastTrack protocol), LimeWire (which uses the Gnutella protocol) or BitTorrent. Peer-to-Peer programs typically share files by default, to allow the maximum amount of sharing across the network.
Q. So what's the issue?
A. Most P2P usage (which comprises a significant fraction of all
file-sharing) is against the law because it involves the sharing of
copyrighted materials without permission from the copyright owner,
usually music (MP3) or movie files, but also TV programs, books and
images.
Q. How does copyright law work?
Q. What is the DMCA?
A. DMCA stands for Digital Millennium Copyright Act.
Passed in 1998, the DMCA provides "limitations for service provider
liability relating to material online" and specifically contains a
section that stipulates a university's responsibilities as an Internet
Service Provider (ISP). In other words, the DMCA tells Stanford what it
can and cannot do with respect to facilitating the transfer of files.
The University as a service provider can give its users the connections
they need to transfer files, but if any illegal activity is detected,
the University must guarantee that the transfers have ceased. The DMCA
holds the University liable if illegal file transfers persist but limits
the University's liability if it cooperates fully with every aspect of
the law.
Q. What is a DMCA complaint?
A. The DMCA provides a mechanism for copyright owners or their agents
to complain to Internet Service Providers (ISP) about illegal
file-sharing that is happening on the ISP's network. The ISP--
Stanford-- is then obligated to respond to this "DMCA Complaint."
Copyright owners often hire companies to monitor filesharing networks
in order to find the IP addresses (identifiers for computers or devices
on a network) of computers sharing specific illegal files. Once an IP
address has been logged, the ISP can be tracked down and notified that
the computer (and presumably the computer's owner/user) is sharing an
illegal file.
Q. Who's complaining?
A. Currently, most complaints are coming from the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA),
and companies that belong to those organizations (such as individual
record companies or movie studios). Increasingly though, complaints are
coming from television producers, publishers of digital books, and
software vendors.
Q. Why do the copyright owners care?
A. Copyright owners, especially the RIAA and MPAA, claim financial
damages, in the form of billions of dollars in lost revenues from
file-sharing activity.
Q. What are my obligations under the law, and what are the legal risks?
A. Essentially, the law stipulates that you cannot have anything on
your computer that you do not own. More importantly, you cannot share
any file to which you do not have the legal rights. Currently, copyright
violations can result in civil penalties of up to $150,000 per
violation. Theoretically, if you send 10 people a copy of a song you
ripped, you might be facing statutory damages of $1.5 million dollars.
In addition to civil liability, there is potential criminal liability in
copyright cases-- with penalties depending on the number and value of
products exchanged.
Downloading (taking) and uploading (sharing) content are both fraught
with risk. In the John Doe action involving a user of the Stanford
network, the purported defendant had purchased most of the music, which
was then made available on KaZaA. The purported defendant did not think
the actions were so culpable because, after all, the purported defendant
had paid for the music. Clearly the plaintiffs in the law suit
disagreed with the John Doe's assessment. On the downloading front, a
student with multiple DMCA complaints raised the point that she only
downloaded TV shows, which she could have legally recorded on a VCR or
DVR (digital video recorder) when they aired, so where was the harm? For
better or worse, the "harm" question is not really the downloaders'
question to ask. Copyright owners get to call the shots about whether
their material is shared online, and the downloader is left to bear the
responsibility for not respecting the copyright owners' decisions.
Stanford University policy also forbids illegal file-sharing; please
see the next several questions for potential institutional consequences.
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Q. What are Stanford's obligations under the law?
A. Stanford must designate an agency to handle the complaints it receives-- here, it is the Information Security Office
(ISO), often referred to as the Computer Security Office or just
"Security." The Information Security Office must deal with each
complaint it receives in an "expedient" manner. In every case,
Stanford's obligation is to stop the alleged violation.
The DMCA provides "safe harbor" to Internet Service Providers
(ISPs)-- such as Stanford-- for infringing conduct that takes place on
the network. That is, provided that Stanford responds to every DMCA
complaint and has appropriate and public DMCA policies in place,
Stanford is not liable for copyright infringement that takes place on
its network. Infringers however, in this case Stanford affiliates, are
of course still liable for their actions; safe harbor applies to the
institution in the middle. To secure safe harbor, however, the DMCA
requires that Stanford have in place a policy that provides for
TERMINATION of Internet services for repeat infringers. Accordingly,
Stanford will terminate Internet access upon the receipt of a third DMCA
complaint for a student. On a case by case basis, the ISO may even
disable a SUNet ID, and it is very difficult to function efficiently as a
student without services provided under SUNet, such as AXESS. (These
terminations are administrative actions that happen to maintain safe
harbor under the DMCA and are separate from any actions taken by
Judicial Affairs.) Stanford's termination policy is online. Stanford
must also comply with any subpoenas issued by copyright holders
requesting the identity of alleged copyright infringers.
Q. What is Stanford's policy on file-sharing?
A. Stanford's Administrative Guide Memo 62
provides that all copyrighted materials "must be used in conformance
with applicable copyright and other law." The University will comply
fully with all facets of the law. Laws are laws, and regardless of
whether one agrees with them, they must be adhered to. Because
file-sharing can be used legally and beneficially in an academic
setting, Stanford has no plans to shut down sharing protocols, a drastic
step taken by some universities as a means of avoiding illegal
file-sharing.
Q. What can I expect if I receive a DMCA complaint against me?
A. If you have a complaint filed against you with the Information
Security Office here at Stanford, they will contact you by email. This
email will direct you to ISO's resolution site,
and will contain the details of your alleged infraction: the accusing
party, the name of the file allegedly being shared illegally, and other
technical information. Click [sampleemail.html here] to see an example
of an email you might receive. After this email has been sent out, you
will generally have two business days to pass a short 5-question quiz,
and indicate that you have either removed the file from your computer,
or are no longer sharing it with others. If you do not respond in time,
your network traffic will be automatically restricted, and you will be
directed to the resolution site should you try to go anywhere else.
In Stanford's experience, approximately 95% of recipients of first
time DMCA complaints never receive a second. Accordingly, Stanford is of
the view that, except in exceptional circumstances, a first DMCA
complaint is between the recipient and Security and, once resolved, it
does not go beyond the Information Security Office.
Note that receiving a single DMCA complaint, or even none at all,
does not preclude you from receiving a pre-litigation letter, or being
sued directly.
Q: What will happen if I receive a second DMCA complaint?
A. Connectivity to the Internet will be temporarily disabled while
you are given a chance to either remove the allegedly offending
material, or stop sharing it. The Information Security Office may refer
the matter to your residence dean and completely disconnect you if the
offense persists, and a reconnection fee would apply.
Q: What will happen if I receive a third DMCA complaint?
As an administrative action, in order to maintain safe harbor under
the DMCA (i.e. protect Stanford from your actions), your Stanford
networking privileges will be terminated. Your SUNet ID may also be
disabled, on a case by case basis. As a disciplinary matter, the
Information Security Office will refer the matter to Judicial Affairs.
To restore network privileges you will be asked to sign an agreement
with the University, and will be charged a new privileges fee up to
$1000.
Q. How can I get caught if I violate copyright law or Stanford policy?
A. Organizations like the RIAA and MPAA frequently police
file-sharing programs for copyrighted materials belonging to the artists
they represent. Some students are under the misimpression that their
activity on the Internet is largely anonymous and untraceable. On the
contrary, much of your Internet activity is logged on the computer
systems you use and these logs can be used to confirm or implicate you
in illegal activity. According to recent legal rulings, the RIAA or
other copyright holders can cause subpoenas to be issued that would
force Stanford to reveal your identity.
Q. What if I want to challenge the DMCA complaint with the copyright owner?
A. Let ISO know that you have done that. ISO will make a note of it.
If your counterclaim is accepted, the administrative action taken by
the University will be rescinded (e.g., if your record has one copyright
violation, the number of violations will go back to zero). If the
counterclaim is rejected, the administrative action will remain in
effect. As for disciplinary actions, you can challenge those through
Judicial Affairs.
For more information on filing a counterclaim, visit:
Q. What if the DMCA complaint is valid, but there are extenuating circumstances?
A. You will still have to take the quiz and resolve the complaint at
ISO's resolution site, but you may also send an email to the ISO
indicating the circumstances. Generally on a first complaint your email
will simply be filed by the ISO - while there are legal obligations at
that point, you are not yet "in trouble" with the university. On repeat
complaints these emails will be provided to your Residence Dean or to
Judicial Affairs for consideration. ISO may also waive the reconnection
fees in rare instances, e.g. if you had no network access for more than
48 hours while away on a family emergency and thus could not respond
promptly to a first complaint. If there is an extenuating circumstance,
you should let ISO know as soon as possible so they can take it into
account while processing the complaint. Of course Stanford's actions
under university policies will have no legal effect on the validity of
the DMCA complain in the eyes of the law.
Q. What if I'm dissatisfied with my treatment under University policies?
A. The ISO decides how to apply Stanford's copyright policy in each
case. When there are questions, ISO staff will refer the matter to the
Chief Information Security Officer (at a minimum). The ISO may consult
with other departments to make the decision about how to apply the
policy in individual circumstances, including the Office of the General
Counsel (the University's Attorneys), the Office of Student Computing,
or the Chief Financial Officer's office (through whom the ISO reports).
If a student is unhappy with the decisions made by (or the penalties applied by) the ISO, she may avail herself of the Student Non-Academic Grievance Procedure, which is detailed in the Stanford Bulletin,
towards the end, in the Nonacademic Regulations section. In short, for
informal resolution, she can complain to the person superior in the
chain of command, in this case the Office of the Vice President for Business Affairs and Chief Financial Officer and/or the Internal Audit department. For formal resolution, she would submit a written complaint to the Director of the Diversity and Access Office (even if the grievance is not about diversity). She would generally need to do this within a month of the end of the quarter.
Q. Does Stanford search its network for illegal files?
A. Stanford does not currently search for illegal files, as some universities do.
Q. How does illegal file-sharing hurt Stanford's online security and networking?
A. The number of complaints that Stanford receives per day has grown
exponentially over the past few years. The growth had diverted a
full-time staff position at Information Security Office just to process
all of the complaints. Eventually, an automatic resolution system was
released to manage the process. File-sharing hurts security on campus in
that the staff is prevented from working on more beneficial projects
for the University. For example, during late July and August of 2003,
Stanford, like many universities, were significantly affected by
Internet attacks targeting vulnerabilities in the Microsoft Windows
operating system. Security as well as other University computing and
networking staff, including those at Student Computing (then Rescomp),
would rather spend their time protecting students' computers and not
have to carry the burden of notifying students of DMCA complaints and
shutting connections off when a user fails to respond in 48 hours.
From a networking perspective, Stanford suffers under current file-sharing because of the resources it eats up. The people at Networking Systems
want to help limit Stanford's liability under the DMCA, but aside from
this concern, they also want to provide a reliable network for all
users. Therefore, Networking Systems has limited the amount of network
resources that may be used for file-sharing. The purpose of the cap is
to make the network usable for schoolwork and other important
activities. It is not to punish the students-- faculty and staff share
the same restrictions--but rather to improve the network for everyone.
In general, dealing with illegal file-sharing takes up valuable
resources at the University. In addition to computing and networking
resources and staff time, the Office of the General Counsel, Judicial
Affairs, Residential Education (with the Residence Deans), and others
are all involved in the process. The longer illegal file-sharing
continues, the longer resources cannot be used to provide better
services to the University community and to further the University's
educational mission.
Q. Why is file-sharing legally dangerous for Stanford?
A. The ballooning number of complaints that Stanford receives on a
daily basis has not gone unnoticed-- the worse the problem gets at
Stanford, the more strictly agencies will monitor the files being
transferred. As a high-profile private institution, Stanford of course
needs to be especially mindful of the risks of litigation. As such, the
University must have an approach that clearly meets what's required by
the current law, in the best judgment of those that make the decisions.
Whether individuals think sharing music or movies is a big deal is
unfortunately irrelevant.
In July 2007, a senator introduced legislation that would have
required colleges to stop file-sharing altogether. Fortunately it was
defeated quickly, but it illustrates how the enormous value of lawful
file-sharing is put at risk by reactions to unlawful file-sharing.
Q. How do other schools handle this problem?
A. Universities and colleges across the country have adopted a
variety of policies and practices when handling copyright violation
complaints. Some schools exercise little to no restriction on
file-sharing while others have opted to prevent file-sharing altogether.
For example, some schools block P2P applications completely and
complaints can result in judicial hearings.
Some schools adopt a policy somewhere in between, such as initially
disconnecting students and then reconnecting them pending required
meetings or other communication. Many schools also have policies for
repeat offenders where administrative and disciplinary actions taken
against students escalate with each offense.
Some schools have also signed deals with legal digital music
providers, such as Napster, to offer free or discounted subscriptions to
their services and hopefully, get rid of illegal file-sharing on their
campuses.
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Q. I hear the RIAA sends out "pre-litigation" letters. What are they?
A. It doesn't. You may receive a pre-litigation letter or notified of
a lawsuit whether or not you've received DMCA complaints. Penalties for
DMCA complaints are imposed by the University. Pre-litigation letters
indicate that the copyright holders intend to sue in courts of law.
Q. What should I do if I receive a pre-litigation settlement letter?
A. That is up to you. But you may want to decide with the assistance
of an attorney who can help you weigh your options. If you contact the
RIAA and offer to settle, you will reveal your identity, which would
otherwise require a subpoena and lawsuit to obtain. If you do nothing,
you risk being sued. Students at other universities who have been sued
(prior to the "pre-litigation" campaign) have ended up settling for very
large amounts.
Q. How many Stanford students have received DMCA complaints,
received pre-litigation letters, been charged criminally, and been sued?
A. Over the course of the 2006-07 academic year Stanford received
roughly 1200 DMCA complaints, virtually all of them first complaints
against individual students. Under 20 students received pre-litigation
letters, noting that the RIAA's program started late in the year and
that we were not among the first schools to be targeted. Since then
seven John Doe lawsuits have been filed against Stanford students, and
40 additional students have settled in lieu of being sued for a total of
about $150,000. Bear in mind that Stanford is only aware of suits when
served with subpoenas, and may not be informed when students who receive
pre-litigation letters identify themselves and offer to settle. No
Stanford students have been charged criminally.
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Q. What can I do to help? How can I avoid problems with this?
A. The simplest way to avoid problems is to stop both downloading and
sharing illegal files. Students often fail to recognize that trading in
most copyrighted material is, in fact, breaking the law, and that it
can lead to serious consequences. If you are using a P2P application,
don't download files unless you are confident they can be freely traded.
Perhaps more importantly, if you don't have files that you can legally
share (even if you have the rights to own them, such as legal downloads
or CDs you have purchased), configure the application not to allow
uploads to other users. Most importantly, many P2P applications keep
running even after you quit, unless you explicitly tell them to
disconnect. Disconnect your program from its network whenever you can,
and quit it when you're not using it.
In response to the June 2007 pre-litigation letters, several students
indicated that they were not aware that a file-sharing program was
configured by default to share files back out through the Internet.
These students did not intend for their lawfully purchased music to be
given away freely.
Q. How can I evaluate websites and services for obtaining digital files legally?
A. Unfortunately, it’s not as easy as it should be to answer this
question. You can essentially either a) rely on "known sources", or b)
search for clues. "Known sources" can be straightforward -- the big
players and major labels/studios often advertise where you can obtain
legal content. For the lesser known resources, you can start by
examining the page itself. We have developed this five-point
“checklist” you can use as a guideline to evaluate websites and other
sources of digital media: Revenue Source, Content Source, "About" Page,
Site Reputation, and Your Instincts. You should evaluate all areas as a
whole when considering the legitimacy of any sources for media
content. See Evaluating Sources of Online Media: Is Your Source Legal? for more info.
Q. How can I share digital files legally?
A. You can legally share any files to which you personally own the
copyright, including academic and artistic work as well as useful
documents such as resumes. You can also share works that exist in the
public domain (i.e., works whose copyright has expired). Keep in mind
for legal file-sharing that the burden is on you to ensure that there's
copyright authorization for any shared files. There is much interest in
legal file-sharing and innovative peer-to-peer technologies in business,
government, and education, especially with increasing network
capabilities like those of Internet 2. See, for example, the Peer-to-Peer Working Group.
Q. How can I find out more information?
A. The following is a list of supplementary materials referred to in this page:
For more information, visit these informative Web sites:
Stanford policies and information
Q. Who can I contact with my questions or concerns?
A. If you have any more questions, feel free to talk to your RCC and/or contact Residential Computing by emailing copyright@rescomp.stanford.edu. You may also want to contact the Information Security Office and/or the Office of the General Counsel.
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- What is "file-sharing?"
- So what's the issue?
- How does copyright law work?
- What is the DMCA?
- What is a DMCA complaint?
- Who's complaining?
- Why do the copyright owners care?
- What are my obligations under the law, and what are the legal risks?
- What are Stanford's obligations under the law?
- What is Stanford's policy on file-sharing?
- What can I expect if I receive a DMCA complaint against me?
- What will happen if I receive a second DMCA complaint?
- What will happen if I receive a third DMCA complaint?
- How can I get caught if I violate copyright laws or Stanford policy?
- What if I want to challenge the DMCA complaint with the copyright owner?
- What if the DMCA complaint is valid, but there are extenuating circumstances?
- What if I'm dissatisfied with my treatment under University policies?
- Does Stanford search its network for illegal files?
- How does illegal file-sharing hurt Stanford's online security and networking?
- Why is file-sharing legally dangerous for Stanford?
- How do other schools handle this problem?
- I hear the RIAA sends out "pre-litigation" letters. What are they?
- How does this relate to the DMCA complaints?
- What should I do if I receive a pre-litigation settlement letter?
- How many
Stanford students have received DMCA complaints, received pre-litigation
letters, been charged criminally, and been sued?
- What can I do to help? How can I avoid problems with this?
- How can I evaluate websites and services for obtaining digital files legally?
- How can I share digital files legally?
- How can I find out more information?
- Who can I contact with my questions or concerns?
Overview of file-sharing, copyright law and the DMCA
As the entertainment industry increasingly takes aim at collegestudents for operating file-sharing servers, many questions arise about
the legal obligations of Stanford University and the users of its
network with regard to file-sharing and copyrighted materials. Here are
some answers to your questions about file-sharing, copyright law, and
University policies and practices.
Recently, there have been two new developments. First, the RIAA announced in December 2008 that it would stop sending "pre-litigation" settlement offers
and initiating mass lawsuits against those that did not respond.
Second, in July 2009 Stanford's Information Security Office announced a
new automated system for students to respond to DMCA complaints, including a quiz, and automatic re-routing to that page for those who don't respond.
Q. What is "file-sharing?"
A. File-sharing is the process of exchanging files over the Internet.
The most common forms of file-sharing are: running an FTP server or
using an FTP program, utilizing Internet Relay Chat (IRC), and using Peer-to-Peer (P2P) programs such as KaZaA (which uses the FastTrack protocol), LimeWire (which uses the Gnutella protocol) or BitTorrent. Peer-to-Peer programs typically share files by default, to allow the maximum amount of sharing across the network.
Q. So what's the issue?
A. Most P2P usage (which comprises a significant fraction of all
file-sharing) is against the law because it involves the sharing of
copyrighted materials without permission from the copyright owner,
usually music (MP3) or movie files, but also TV programs, books and
images.
Q. How does copyright law work?
A.
Original expressions of ideas are copyrighted for a certain period of
time (generally the lifetime of the author, plus 70 years), including
such mundane works as the papers you write for class. Copyrighted
materials are everywhere around you: songs, movies, TV shows,
photographs, magazines, books, software, plays and Web sites are just a
few things that are subject to copyright protection. Although it has not
always been the case, today copyright applies automatically to works
upon their creation, and it is not necessary (although there are good
reasons) to register the copyright to be afforded copyright protection.
Original expressions of ideas are copyrighted for a certain period of
time (generally the lifetime of the author, plus 70 years), including
such mundane works as the papers you write for class. Copyrighted
materials are everywhere around you: songs, movies, TV shows,
photographs, magazines, books, software, plays and Web sites are just a
few things that are subject to copyright protection. Although it has not
always been the case, today copyright applies automatically to works
upon their creation, and it is not necessary (although there are good
reasons) to register the copyright to be afforded copyright protection.
The
copyright of a work gives the holder a limited monopoly on
reproduction, distribution, and display of that work. When you buy or
are given a copyrighted work, you get limited use of it, but not the
right to distribute it. So, you can listen to your CD, read your book,
and watch your movie, and even lend the original to a friend, but you
can't give a copy to your friend without permission from (and generally
payment to) the copyright holder. You can play a recent song on the
piano (assuming you know how), but you can't perform it for an audience
without permission. In the Internet domain, it is probably OK to make a
copy of the CD you bought so that you can listen to songs on your iPod
or other portable digital music player, but its NOT OK to give that song
to your friend without permission from the copyright owner, or allow it
to be shared on a P2P system that will give others access to the song
without paying for it. And, it is NOT OK to download copyrighted songs,
movies, books or images for your personal enjoyment without paying for
them (unless you have the express permission from the copyright owner).
copyright of a work gives the holder a limited monopoly on
reproduction, distribution, and display of that work. When you buy or
are given a copyrighted work, you get limited use of it, but not the
right to distribute it. So, you can listen to your CD, read your book,
and watch your movie, and even lend the original to a friend, but you
can't give a copy to your friend without permission from (and generally
payment to) the copyright holder. You can play a recent song on the
piano (assuming you know how), but you can't perform it for an audience
without permission. In the Internet domain, it is probably OK to make a
copy of the CD you bought so that you can listen to songs on your iPod
or other portable digital music player, but its NOT OK to give that song
to your friend without permission from the copyright owner, or allow it
to be shared on a P2P system that will give others access to the song
without paying for it. And, it is NOT OK to download copyrighted songs,
movies, books or images for your personal enjoyment without paying for
them (unless you have the express permission from the copyright owner).
There
are certain limitations to copyright, most notably "fair use," which
allows you to use a small portion of a work in an academic setting. So,
you can legally quote a copyrighted work in a paper you write, assuming
you give credit to the source. Bear in mind, though, that fair use of
copyrighted material requires that your source of the material be
legitimate. In a class presentation you can show an excerpt from a TV
show that you have on a legal DVD, or even that you taped when it aired.
You cannot, however, legally show the exact same excerpt from a pirated
DVD, or a video file that you downloaded off the Internet without
permission.
are certain limitations to copyright, most notably "fair use," which
allows you to use a small portion of a work in an academic setting. So,
you can legally quote a copyrighted work in a paper you write, assuming
you give credit to the source. Bear in mind, though, that fair use of
copyrighted material requires that your source of the material be
legitimate. In a class presentation you can show an excerpt from a TV
show that you have on a legal DVD, or even that you taped when it aired.
You cannot, however, legally show the exact same excerpt from a pirated
DVD, or a video file that you downloaded off the Internet without
permission.
Of
course this summary of copyright law is a simplification, and not a
legal document. For details, see theStanford University Copyright
Reminder and the key links, http://library.stanford.edu/using/copyright-reminder .
course this summary of copyright law is a simplification, and not a
legal document. For details, see theStanford University Copyright
Reminder and the key links, http://library.stanford.edu/using/copyright-reminder .
Q. What is the DMCA?
A. DMCA stands for Digital Millennium Copyright Act.
Passed in 1998, the DMCA provides "limitations for service provider
liability relating to material online" and specifically contains a
section that stipulates a university's responsibilities as an Internet
Service Provider (ISP). In other words, the DMCA tells Stanford what it
can and cannot do with respect to facilitating the transfer of files.
The University as a service provider can give its users the connections
they need to transfer files, but if any illegal activity is detected,
the University must guarantee that the transfers have ceased. The DMCA
holds the University liable if illegal file transfers persist but limits
the University's liability if it cooperates fully with every aspect of
the law.
Q. What is a DMCA complaint?
A. The DMCA provides a mechanism for copyright owners or their agents
to complain to Internet Service Providers (ISP) about illegal
file-sharing that is happening on the ISP's network. The ISP--
Stanford-- is then obligated to respond to this "DMCA Complaint."
Copyright owners often hire companies to monitor filesharing networks
in order to find the IP addresses (identifiers for computers or devices
on a network) of computers sharing specific illegal files. Once an IP
address has been logged, the ISP can be tracked down and notified that
the computer (and presumably the computer's owner/user) is sharing an
illegal file.
Q. Who's complaining?
A. Currently, most complaints are coming from the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA),
and companies that belong to those organizations (such as individual
record companies or movie studios). Increasingly though, complaints are
coming from television producers, publishers of digital books, and
software vendors.
Q. Why do the copyright owners care?
A. Copyright owners, especially the RIAA and MPAA, claim financial
damages, in the form of billions of dollars in lost revenues from
file-sharing activity.
Q. What are my obligations under the law, and what are the legal risks?
A. Essentially, the law stipulates that you cannot have anything on
your computer that you do not own. More importantly, you cannot share
any file to which you do not have the legal rights. Currently, copyright
violations can result in civil penalties of up to $150,000 per
violation. Theoretically, if you send 10 people a copy of a song you
ripped, you might be facing statutory damages of $1.5 million dollars.
In addition to civil liability, there is potential criminal liability in
copyright cases-- with penalties depending on the number and value of
products exchanged.
Downloading (taking) and uploading (sharing) content are both fraught
with risk. In the John Doe action involving a user of the Stanford
network, the purported defendant had purchased most of the music, which
was then made available on KaZaA. The purported defendant did not think
the actions were so culpable because, after all, the purported defendant
had paid for the music. Clearly the plaintiffs in the law suit
disagreed with the John Doe's assessment. On the downloading front, a
student with multiple DMCA complaints raised the point that she only
downloaded TV shows, which she could have legally recorded on a VCR or
DVR (digital video recorder) when they aired, so where was the harm? For
better or worse, the "harm" question is not really the downloaders'
question to ask. Copyright owners get to call the shots about whether
their material is shared online, and the downloader is left to bear the
responsibility for not respecting the copyright owners' decisions.
Stanford University policy also forbids illegal file-sharing; please
see the next several questions for potential institutional consequences.
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Stanford policies and information
Q. What are Stanford's obligations under the law?
A. Stanford must designate an agency to handle the complaints it receives-- here, it is the Information Security Office
(ISO), often referred to as the Computer Security Office or just
"Security." The Information Security Office must deal with each
complaint it receives in an "expedient" manner. In every case,
Stanford's obligation is to stop the alleged violation.
The DMCA provides "safe harbor" to Internet Service Providers
(ISPs)-- such as Stanford-- for infringing conduct that takes place on
the network. That is, provided that Stanford responds to every DMCA
complaint and has appropriate and public DMCA policies in place,
Stanford is not liable for copyright infringement that takes place on
its network. Infringers however, in this case Stanford affiliates, are
of course still liable for their actions; safe harbor applies to the
institution in the middle. To secure safe harbor, however, the DMCA
requires that Stanford have in place a policy that provides for
TERMINATION of Internet services for repeat infringers. Accordingly,
Stanford will terminate Internet access upon the receipt of a third DMCA
complaint for a student. On a case by case basis, the ISO may even
disable a SUNet ID, and it is very difficult to function efficiently as a
student without services provided under SUNet, such as AXESS. (These
terminations are administrative actions that happen to maintain safe
harbor under the DMCA and are separate from any actions taken by
Judicial Affairs.) Stanford's termination policy is online. Stanford
must also comply with any subpoenas issued by copyright holders
requesting the identity of alleged copyright infringers.
Q. What is Stanford's policy on file-sharing?
A. Stanford's Administrative Guide Memo 62
provides that all copyrighted materials "must be used in conformance
with applicable copyright and other law." The University will comply
fully with all facets of the law. Laws are laws, and regardless of
whether one agrees with them, they must be adhered to. Because
file-sharing can be used legally and beneficially in an academic
setting, Stanford has no plans to shut down sharing protocols, a drastic
step taken by some universities as a means of avoiding illegal
file-sharing.
Q. What can I expect if I receive a DMCA complaint against me?
A. If you have a complaint filed against you with the Information
Security Office here at Stanford, they will contact you by email. This
email will direct you to ISO's resolution site,
and will contain the details of your alleged infraction: the accusing
party, the name of the file allegedly being shared illegally, and other
technical information. Click [sampleemail.html here] to see an example
of an email you might receive. After this email has been sent out, you
will generally have two business days to pass a short 5-question quiz,
and indicate that you have either removed the file from your computer,
or are no longer sharing it with others. If you do not respond in time,
your network traffic will be automatically restricted, and you will be
directed to the resolution site should you try to go anywhere else.
In Stanford's experience, approximately 95% of recipients of first
time DMCA complaints never receive a second. Accordingly, Stanford is of
the view that, except in exceptional circumstances, a first DMCA
complaint is between the recipient and Security and, once resolved, it
does not go beyond the Information Security Office.
Note that receiving a single DMCA complaint, or even none at all,
does not preclude you from receiving a pre-litigation letter, or being
sued directly.
Q: What will happen if I receive a second DMCA complaint?
A. Connectivity to the Internet will be temporarily disabled while
you are given a chance to either remove the allegedly offending
material, or stop sharing it. The Information Security Office may refer
the matter to your residence dean and completely disconnect you if the
offense persists, and a reconnection fee would apply.
Q: What will happen if I receive a third DMCA complaint?
As an administrative action, in order to maintain safe harbor under
the DMCA (i.e. protect Stanford from your actions), your Stanford
networking privileges will be terminated. Your SUNet ID may also be
disabled, on a case by case basis. As a disciplinary matter, the
Information Security Office will refer the matter to Judicial Affairs.
To restore network privileges you will be asked to sign an agreement
with the University, and will be charged a new privileges fee up to
$1000.
Q. How can I get caught if I violate copyright law or Stanford policy?
A. Organizations like the RIAA and MPAA frequently police
file-sharing programs for copyrighted materials belonging to the artists
they represent. Some students are under the misimpression that their
activity on the Internet is largely anonymous and untraceable. On the
contrary, much of your Internet activity is logged on the computer
systems you use and these logs can be used to confirm or implicate you
in illegal activity. According to recent legal rulings, the RIAA or
other copyright holders can cause subpoenas to be issued that would
force Stanford to reveal your identity.
Q. What if I want to challenge the DMCA complaint with the copyright owner?
A. Let ISO know that you have done that. ISO will make a note of it.
If your counterclaim is accepted, the administrative action taken by
the University will be rescinded (e.g., if your record has one copyright
violation, the number of violations will go back to zero). If the
counterclaim is rejected, the administrative action will remain in
effect. As for disciplinary actions, you can challenge those through
Judicial Affairs.
For more information on filing a counterclaim, visit:
- DMCA information from the U.S. Copyright Office
- ASSU Legal Counseling Office
- Electronic Frontier Foundation (EFF)
- Chilling Effects Clearinghouse
Q. What if the DMCA complaint is valid, but there are extenuating circumstances?
A. You will still have to take the quiz and resolve the complaint at
ISO's resolution site, but you may also send an email to the ISO
indicating the circumstances. Generally on a first complaint your email
will simply be filed by the ISO - while there are legal obligations at
that point, you are not yet "in trouble" with the university. On repeat
complaints these emails will be provided to your Residence Dean or to
Judicial Affairs for consideration. ISO may also waive the reconnection
fees in rare instances, e.g. if you had no network access for more than
48 hours while away on a family emergency and thus could not respond
promptly to a first complaint. If there is an extenuating circumstance,
you should let ISO know as soon as possible so they can take it into
account while processing the complaint. Of course Stanford's actions
under university policies will have no legal effect on the validity of
the DMCA complain in the eyes of the law.
Q. What if I'm dissatisfied with my treatment under University policies?
A. The ISO decides how to apply Stanford's copyright policy in each
case. When there are questions, ISO staff will refer the matter to the
Chief Information Security Officer (at a minimum). The ISO may consult
with other departments to make the decision about how to apply the
policy in individual circumstances, including the Office of the General
Counsel (the University's Attorneys), the Office of Student Computing,
or the Chief Financial Officer's office (through whom the ISO reports).
If a student is unhappy with the decisions made by (or the penalties applied by) the ISO, she may avail herself of the Student Non-Academic Grievance Procedure, which is detailed in the Stanford Bulletin,
towards the end, in the Nonacademic Regulations section. In short, for
informal resolution, she can complain to the person superior in the
chain of command, in this case the Office of the Vice President for Business Affairs and Chief Financial Officer and/or the Internal Audit department. For formal resolution, she would submit a written complaint to the Director of the Diversity and Access Office (even if the grievance is not about diversity). She would generally need to do this within a month of the end of the quarter.
Q. Does Stanford search its network for illegal files?
A. Stanford does not currently search for illegal files, as some universities do.
Q. How does illegal file-sharing hurt Stanford's online security and networking?
A. The number of complaints that Stanford receives per day has grown
exponentially over the past few years. The growth had diverted a
full-time staff position at Information Security Office just to process
all of the complaints. Eventually, an automatic resolution system was
released to manage the process. File-sharing hurts security on campus in
that the staff is prevented from working on more beneficial projects
for the University. For example, during late July and August of 2003,
Stanford, like many universities, were significantly affected by
Internet attacks targeting vulnerabilities in the Microsoft Windows
operating system. Security as well as other University computing and
networking staff, including those at Student Computing (then Rescomp),
would rather spend their time protecting students' computers and not
have to carry the burden of notifying students of DMCA complaints and
shutting connections off when a user fails to respond in 48 hours.
From a networking perspective, Stanford suffers under current file-sharing because of the resources it eats up. The people at Networking Systems
want to help limit Stanford's liability under the DMCA, but aside from
this concern, they also want to provide a reliable network for all
users. Therefore, Networking Systems has limited the amount of network
resources that may be used for file-sharing. The purpose of the cap is
to make the network usable for schoolwork and other important
activities. It is not to punish the students-- faculty and staff share
the same restrictions--but rather to improve the network for everyone.
In general, dealing with illegal file-sharing takes up valuable
resources at the University. In addition to computing and networking
resources and staff time, the Office of the General Counsel, Judicial
Affairs, Residential Education (with the Residence Deans), and others
are all involved in the process. The longer illegal file-sharing
continues, the longer resources cannot be used to provide better
services to the University community and to further the University's
educational mission.
Q. Why is file-sharing legally dangerous for Stanford?
A. The ballooning number of complaints that Stanford receives on a
daily basis has not gone unnoticed-- the worse the problem gets at
Stanford, the more strictly agencies will monitor the files being
transferred. As a high-profile private institution, Stanford of course
needs to be especially mindful of the risks of litigation. As such, the
University must have an approach that clearly meets what's required by
the current law, in the best judgment of those that make the decisions.
Whether individuals think sharing music or movies is a big deal is
unfortunately irrelevant.
In July 2007, a senator introduced legislation that would have
required colleges to stop file-sharing altogether. Fortunately it was
defeated quickly, but it illustrates how the enormous value of lawful
file-sharing is put at risk by reactions to unlawful file-sharing.
Q. How do other schools handle this problem?
A. Universities and colleges across the country have adopted a
variety of policies and practices when handling copyright violation
complaints. Some schools exercise little to no restriction on
file-sharing while others have opted to prevent file-sharing altogether.
For example, some schools block P2P applications completely and
complaints can result in judicial hearings.
Some schools adopt a policy somewhere in between, such as initially
disconnecting students and then reconnecting them pending required
meetings or other communication. Many schools also have policies for
repeat offenders where administrative and disciplinary actions taken
against students escalate with each offense.
Some schools have also signed deals with legal digital music
providers, such as Napster, to offer free or discounted subscriptions to
their services and hopefully, get rid of illegal file-sharing on their
campuses.
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Getting Sued
Q. I hear the RIAA sends out "pre-litigation" letters. What are they?
A.
Copyright holders have several options available to them to redress
perceived copyright infringement. Copyright holders can send a complaint
under the DMCA (to date this has been by far the most common approach);
they can file a criminal complaint with local or federal authorities;
or they can bring a civil lawsuit directly against the infringer. They
can avail themselves of any or all of these options, in any order. Back
in 2007 the RIAA announced a new campaign to send out "pre-litigation"
settlement offers to offenders at college campuses.. These letters
claimed that a lawsuit (and thus a subpoena for a user's identity) was
forthcoming, and gave the user a chance to settle in advance, presumably
at a discount. Since this was independent of the DMCA complaint
process, people who received such letters may not have had any DMCA
complaints previously. Under the RIAA’s campaign, many Stanford students
were targeted and the University estimates that students collectively
paid over $100,000 in settlement costs. In December 2008 the RIAA
announced that it would stop sending "pre-litigation" settlement offers and initiating mass lawsuits against those that did not respond.
Copyright holders have several options available to them to redress
perceived copyright infringement. Copyright holders can send a complaint
under the DMCA (to date this has been by far the most common approach);
they can file a criminal complaint with local or federal authorities;
or they can bring a civil lawsuit directly against the infringer. They
can avail themselves of any or all of these options, in any order. Back
in 2007 the RIAA announced a new campaign to send out "pre-litigation"
settlement offers to offenders at college campuses.. These letters
claimed that a lawsuit (and thus a subpoena for a user's identity) was
forthcoming, and gave the user a chance to settle in advance, presumably
at a discount. Since this was independent of the DMCA complaint
process, people who received such letters may not have had any DMCA
complaints previously. Under the RIAA’s campaign, many Stanford students
were targeted and the University estimates that students collectively
paid over $100,000 in settlement costs. In December 2008 the RIAA
announced that it would stop sending "pre-litigation" settlement offers and initiating mass lawsuits against those that did not respond.
Since 2008, various smaller companies have adopted the pre-litigation letter tactic, especially small independent filmmakers.
Stanford
becomes aware that a pre-litigation letter is coming by receipt of an
email from the copyright holderto our Information Security Officer
identifying an IP address. Stanford tries to track down the user of the
IP address after receipt of this email, and Stanford forwards the email
to the IP address user.. Stanford will not identify thestudent to the
copyright holder until it is served with a lawful subpoena. Stanford
will, however, comply with lawfully issued subpoenas, which may include
releasing the name of a student..
Q. How do pre-litigation letters and lawsuits relate to DMCA complaints?becomes aware that a pre-litigation letter is coming by receipt of an
email from the copyright holderto our Information Security Officer
identifying an IP address. Stanford tries to track down the user of the
IP address after receipt of this email, and Stanford forwards the email
to the IP address user.. Stanford will not identify thestudent to the
copyright holder until it is served with a lawful subpoena. Stanford
will, however, comply with lawfully issued subpoenas, which may include
releasing the name of a student..
A. It doesn't. You may receive a pre-litigation letter or notified of
a lawsuit whether or not you've received DMCA complaints. Penalties for
DMCA complaints are imposed by the University. Pre-litigation letters
indicate that the copyright holders intend to sue in courts of law.
Q. What should I do if I receive a pre-litigation settlement letter?
A. That is up to you. But you may want to decide with the assistance
of an attorney who can help you weigh your options. If you contact the
RIAA and offer to settle, you will reveal your identity, which would
otherwise require a subpoena and lawsuit to obtain. If you do nothing,
you risk being sued. Students at other universities who have been sued
(prior to the "pre-litigation" campaign) have ended up settling for very
large amounts.
Q. How many Stanford students have received DMCA complaints,
received pre-litigation letters, been charged criminally, and been sued?
A. Over the course of the 2006-07 academic year Stanford received
roughly 1200 DMCA complaints, virtually all of them first complaints
against individual students. Under 20 students received pre-litigation
letters, noting that the RIAA's program started late in the year and
that we were not among the first schools to be targeted. Since then
seven John Doe lawsuits have been filed against Stanford students, and
40 additional students have settled in lieu of being sued for a total of
about $150,000. Bear in mind that Stanford is only aware of suits when
served with subpoenas, and may not be informed when students who receive
pre-litigation letters identify themselves and offer to settle. No
Stanford students have been charged criminally.
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Other information
Q. What can I do to help? How can I avoid problems with this?
A. The simplest way to avoid problems is to stop both downloading and
sharing illegal files. Students often fail to recognize that trading in
most copyrighted material is, in fact, breaking the law, and that it
can lead to serious consequences. If you are using a P2P application,
don't download files unless you are confident they can be freely traded.
Perhaps more importantly, if you don't have files that you can legally
share (even if you have the rights to own them, such as legal downloads
or CDs you have purchased), configure the application not to allow
uploads to other users. Most importantly, many P2P applications keep
running even after you quit, unless you explicitly tell them to
disconnect. Disconnect your program from its network whenever you can,
and quit it when you're not using it.
In response to the June 2007 pre-litigation letters, several students
indicated that they were not aware that a file-sharing program was
configured by default to share files back out through the Internet.
These students did not intend for their lawfully purchased music to be
given away freely.
Q. How can I evaluate websites and services for obtaining digital files legally?
A. Unfortunately, it’s not as easy as it should be to answer this
question. You can essentially either a) rely on "known sources", or b)
search for clues. "Known sources" can be straightforward -- the big
players and major labels/studios often advertise where you can obtain
legal content. For the lesser known resources, you can start by
examining the page itself. We have developed this five-point
“checklist” you can use as a guideline to evaluate websites and other
sources of digital media: Revenue Source, Content Source, "About" Page,
Site Reputation, and Your Instincts. You should evaluate all areas as a
whole when considering the legitimacy of any sources for media
content. See Evaluating Sources of Online Media: Is Your Source Legal? for more info.
Q. How can I share digital files legally?
A. You can legally share any files to which you personally own the
copyright, including academic and artistic work as well as useful
documents such as resumes. You can also share works that exist in the
public domain (i.e., works whose copyright has expired). Keep in mind
for legal file-sharing that the burden is on you to ensure that there's
copyright authorization for any shared files. There is much interest in
legal file-sharing and innovative peer-to-peer technologies in business,
government, and education, especially with increasing network
capabilities like those of Internet 2. See, for example, the Peer-to-Peer Working Group.
Q. How can I find out more information?
A. The following is a list of supplementary materials referred to in this page:
For more information, visit these informative Web sites:
Stanford policies and information
- The DMCA-required notice
- Required notice posted by Information Security Office on how to contact the University with a formal complaints.
- Provost's 2004 statement on File-sharing and Copyright Infringement (PDF)
- Provost's memo to the Stanford community specifically addressing file-sharing and copyright infringement.
- Provost's Annual Copyright Reminder
- Provost's memo to the Stanford community.
- Stanford University Administrative Guide, Computing Chapter
- Information on University policies, codes and guidelines concerning conduct both on- and off-line.
- Stanford's new DMCA reconnection fee policy
- New policy announced by the General Counsel's Office, to take effect in September of 2007.
- Information Security Office
- The main University organization designated to handle complaints about illegally shared copyrighted materials.
- Office of the General Counsel
- The OGC provides legal services to Stanford University, Stanford Hospital and Clinics, and Lucille Packard Children's Hospital.
- Copyright & Fair Use (Stanford University Libraries)
- Information about fair use and how it applies to you as part of the Stanford community.
- U.S. Copyright Law
- More information on US Copyright Law from the U.S. Copyright Office.
- Chilling Effects Clearinghouse
- A joint project of the Electronic Frontier Foundation (EFF) and Harvard, Stanford, Berkeley, University of San Francisco, and University of Maine law school clinics to help people understand the protections that the First Amendment and intellectual property laws provide.
- Stanford Law School Center for Internet and Society
- Information and links about this evolving area of the law.
- Stanford Center for Law, Science, and Technology
- Main site for the program that addresses the increasing role of science and technology in our economy and culture.
- Stanford Student Computer and Network Privacy Project
- A pilot study on student privacy issues, a product of an interdisciplinary course offered through the Computer Science and Science, Technology and Society departments.
- EDUCAUSE summary of DMCA issues
- A summary of news and information on DMCA issues provided by EDUCAUSE, "a non-profit association whose mission is to advance higher education by promoting the intelligent use of information technology."
- Electronic Frontier Foundation DMCA archive
- Archived links to legal documents, articles, etc. on DMCA issues, provided by the Electronic Frontier Foundation, an organization that works to help protect civil liberties, especially in relation to technology.
- UC Berkeley "Stay Connected"
- Campaign on bandwidth and bandwidth abuse by the residential computing organization from the school across the bay.
Q. Who can I contact with my questions or concerns?
A. If you have any more questions, feel free to talk to your RCC and/or contact Residential Computing by emailing copyright@rescomp.stanford.edu. You may also want to contact the Information Security Office and/or the Office of the General Counsel.
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File-sharing and copyright law: How it affects you | Academic Computing Services
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