5/21/2015 (1) Complying with P2P Mandates in the HEOA of 2008 EDUCAUSE Live! 23 November

5/21/2015 (2)  HEOA “peer-to-peer” provisions  Legislative and ED intent  “Unauthorized distribution of copyrighted material” regulations  What to do?

5/21/2015 (3) HEOA “P2P” Provisions

5/21/2015 (4) HEA (as amended) §485 (a) INFORMATION DISSEMINATION ACTIVITIES.— (1)Each eligible institution participating in any program under this title shall carry out information dissemination activities … The information required by this section shall accurately describe … (P)institutional policies and sanctions related to copyright infringement, including— (i)an annual disclosure that explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to- peer file sharing, may subject the students to civil and criminal liabilities; (ii)a summary of the penalties for violation of Federal copyright laws; and (iii)a description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in unauthorized distribution of copyrighted materials using the institution’s information technology system;

5/21/2015 (5) (a) REQUIRED FOR PROGRAMS OF ASSISTANCE; CONTENTS.—In order to be an eligible institution for the purposes of any program authorized under this title, an institution must … enter into a program participation agreement … with the following requirements: … (29) The institution certifies that the institution— (A) has developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents; and (B) will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer or other designated officer of the institution. HEA (as amended) §487

5/21/2015 (6) Legislative and ED Intent

5/21/2015 (7) HR Conf. Rep. 110­803 (2008) …The Conferees intend that this Section be interpreted to be technology neutral and not imply that any particular technology measures are favored or required for inclusion in an institution’s plans. The Conferees intend for each institution to retain the authority to determine what its particular plans for compliance with this Section will be, including those that prohibit content monitoring. The Conferees recognize that there is a broad range of possibilities that exist for institutions to consider in developing plans for purposes of complying with this Section.”

5/21/2015 (8) HR Conf. Rep. 110­803 (2008) “…Experience shows that a technology-based deterrent can be an effective element of an overall solution to combat copyright infringement, when used in combination with other internal and external solutions to educate users and enforce institutional policies. Effective technology-based deterrents are currently available to institutions of higher education through a number of vendors. These approaches may provide an institution with the ability to choose which one best meets its needs, depending on that institution’s own unique characteristics, such as cost and scale. These include bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices, and a variety of commercial products designed to reduce or block illegal file sharing…”

5/21/2015 (9) “…The Department believes that some institutions may be able to effectively combat the unauthorized distribution of copyrighted material using only one of the four types of technology-based deterrents (bandwidth shaping, traffic monitoring, accepting and responding to DMCA notices, or a commercial product designed to reduce or block illegal file sharing) while others may need to employ a combination of such deterrents…” 74:161 Federal Register (2009)

5/21/2015 (10) “…The Department believes that some institutions may be able to effectively combat the unauthorized distribution of copyrighted material using only one of the four types of technology-based deterrents (bandwidth shaping, traffic monitoring, accepting and responding to DMCA notices, or a commercial product designed to reduce or block illegal file sharing) while others may need to employ a combination of such deterrents…” 74:161 Federal Register (2009)

5/21/2015 (11) “Unauthorized Distribution of Copyrighted Material” Regulations (published 29 October 2009)

5/21/2015 (12) §668.14(b)(30)(i)

5/21/2015 (13) […the institution must have…] developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include— (A) The use of one or more technology-based deterrents; (B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material… ; (C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and (D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance … will be, including those that prohibit content monitoring

5/21/2015 (14) […the institution must have…] developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include— (A) The use of one or more technology-based deterrents; (B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material… ; (C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and (D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance … will be, including those that prohibit content monitoring

5/21/2015 (15) […the institution must have…] developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include— (A) The use of one or more technology-based deterrents; (B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material… ; (C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and (D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance … will be, including those that prohibit content monitoring

5/21/2015 (16) […the institution must have…] developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include— (A) The use of one or more technology-based deterrents; (B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material… ; (C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and (D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance … will be, including those that prohibit content monitoring

5/21/2015 (17) […the institution must have…] developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include— (A) The use of one or more technology-based deterrents; (B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material… ; (C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and (D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance … will be, including those that prohibit content monitoring

5/21/2015 (18) […the institution must have…] developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include— (A) The use of one or more technology-based deterrents; (B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material… ; (C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and (D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance … will be, including those that prohibit content monitoring

5/21/2015 (19) […the institution must have…] developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include— (A) The use of one or more technology-based deterrents; (B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material… ; (C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and (D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance … will be, including those that prohibit content monitoring

5/21/2015 (20) […the institution must have…] developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include— (A) The use of one or more technology-based deterrents; (B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material… ; (C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and (D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance … will be, including those that prohibit content monitoring

5/21/2015 (21) §668.14(b)(30)(ii) […and will…] in consultation with the chief technology officer or other designated officer of the institution— (A) Periodically review the legal alternatives for downloading or otherwise acquiring copyrighted material; (B) Make available the results of the … to its students through a Web site or other means; and (C) To the extent practicable, offer legal alternatives for downloading or otherwise acquiring copyrighted material, as determined by the institution

5/21/2015 (22) §668.14(b)(30)(ii) […and will…] in consultation with the chief technology officer or other designated officer of the institution— (A) Periodically review the legal alternatives for downloading or otherwise acquiring copyrighted material; (B) Make available the results of the … to its students through a Web site or other means; and (C) To the extent practicable, offer legal alternatives for downloading or otherwise acquiring copyrighted material, as determined by the institution

5/21/2015 (23) §668.43(a)(10) […and the institution must make available upon request…] Institutional policies and sanctions related to copyright infringement, including— (i) A statement that explicitly informs its students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities; (ii) A summary of the penalties for violation of Federal copyright laws; and (iii) A description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system.

5/21/2015 (24) §668.43(a)(10) […and the institution must make available upon request…] Institutional policies and sanctions related to copyright infringement, including— (i) A statement that explicitly informs its students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities; (ii) A summary of the penalties for violation of Federal copyright laws; and (iii) A description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system.

5/21/2015 (25) §668.43(a)(10) […and the institution must make available upon request…] Institutional policies and sanctions related to copyright infringement, including— (i) A statement that explicitly informs its students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities; (ii) A summary of the penalties for violation of Federal copyright laws; and (iii) A description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system.

5/21/2015 (26) §668.43(a)(10) […and the institution must make available upon request…] Institutional policies and sanctions related to copyright infringement, including— (i) A statement that explicitly informs its students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities; (ii) A summary of the penalties for violation of Federal copyright laws; and (iii) A description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system.

5/21/2015 (27) What To Do?

5/21/2015 (28)  Develop & implement a written plan  Technology-based deterrent(s)  Procedures for handling & discipline  Education & communication  Periodic review using relevant criteria  Review & offer legal alternatives  EDUCAUSE maintaining public list  Actively inform students  Describe policies, disciplinary procedures, & consequences  Institutional  Federal (ED & others preparing standard)  Explicitly inform students

5/21/2015 (29) ?/! Greg Jackson