1. Steve Worona November 3, 2009 EDUCAUSE 2009 – Denver
An EDUCAUSE Update on Peer-to-Peer File Sharing: Requirements, Options, and the Future
Steve Worona
November 3, 2009
EDUCAUSE 2009 – Denver

2. Agenda 1:00-1:15 Introductions
1:15-1:45 Copyright basics, including DMCA
1:45-2:30 Discussion: Campus technology and policy options (for “real” copyright law)
2:30-3:00 Break
3:00-3:45 State and Federal legislation directed at higher education
3:45-4:30 Discussion: HEOA compliance options and requirements

3. Copyright Basics: U. S. Constitution
Article I [the powers of Congress]
Section 8. The Congress shall have power…
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…

4. Copyright Basics: U. S. Constitution
Article I [the powers of Congress]
Section 8. The Congress shall have power…
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…

5. Copyright Basics: What Can be Copyrighted? How? When?
Original works of authorship
But the expression, not the idea
That are at least minimally creative
I can’t copyright this dot:
That are fixed in a tangible medium
By case law, RAM counts
Immediately upon creation
Registration is unnecessary
“©” is unnecessary

6. Copyright Basics: Examples
Pictorial, graphic, and sculptural works
maps, catalogs, reports, dolls
Literary, musical, and dramatic works
books, text, sheet music
Sound recordings
Motion pictures
Compilations
anthologies
Architectural works
blue prints to buildings
Choreographic works
dances

7. Copyright Basics: More Examples
Every you’ve ever written or read
The notes you’re taking right now
But not the questions you’re asking
And maybe or maybe not the words I’m uttering
Every Web page
And when it comes to songs
The words and music
The performance

8. Copyright Basics: Exclusive Rights of Copyright Holders
Reproduction of the work in whole or in part
Preparation of derivative works
E.g., translations, musical arrangements, dramatizations, sound recordings, and second editions
Distribution of copies of the work to the public by sale, gift, rental, loan, or other transfer
Limited by the “First Sale Doctrine”
Public performance of the work
Public display of the work

9. Copyright Basics: Exclusive Rights of Copyright Holders
Reproduction of the work in whole or in part
Preparation of derivative works
E.g., translations, musical arrangements, dramatizations, sound recordings, and second editions
Distribution of copies of the work to the public by sale, gift, rental, loan, or other transfer
Limited by the “First Sale Doctrine”
Public performance of the work
Public display of the work
Thumbnails?
Indexing?
Web-page translation?
Mash-ups?
Sampling?
“Framing”?
Deep-linking?
The Internet Archive?
Ringtone as performance?
Printing?
Forwarding?
Et cetera, et cetera

10. Copyright Basics: Infringement
Exercising any of the copyright holder’s exclusive rights
A “strict liability offense” (no intent or knowledge needed)
Contributory infringement
Vicarious infringement
Penalties
Injunctions
Damages
$150,000 per infringement (if “willfull”)
Loss of profits
Destruction of infringing works
Attorney’s fees

11. Copyright Basics: Exceptions/Defenses to Infringement
If you are the copyright owner
If there is a specific statutory exception
If you have express permission
If you have an implied license
If the work you are using is in the public domain
If what you are doing is “fair use”

12. Copyright Basics: Exceptions/Defenses to Infringement
If you are the copyright owner
If there is a specific statutory exception
If you have express permission
If you have an implied license
If the work you are using is in the public domain
If what you are doing is “fair use”

13. Copyright Basics: Fair Use (the Four Factors)
Purpose and character of the use
Personal/educational/transformative v. commercial
Nature of the work being used
Factual v. creative
Amount and substantiality of the portion used in relation to the whole
Small v. large, both quantitatively and qualitatively
Effect on the market for the original
Not of your individual use, but of the type of use

14. Copyright Basics: Fair Use (the Four Factors)
Purpose and character of the use
Personal/educational/transformative v. commercial
Nature of the work being used
Factual v. creative
Amount and substantiality of the portion used in relation to the whole
Small v. large, both quantitatively and qualitatively
Effect on the market for the original
Not of your individual use, but of the type of use

15. Copyright and the Internet: The DMCA
Enacted 1998
Pre-Napster, pre-MP3, pre-WiFi, pre household broadband
That is, prehistoric
“Safe harbors”, not new copyright restrictions
Paraphrasing: A network operator (“service provider”) will not be held liable for infringement of certain types providing the operator has adhered to certain requirements
Some of the requirements are general
Some depend on the type of network traffic

16. DMCA: General Safe-Harbor Provisions
Must have policy of terminating repeat infringers “in appropriate circumstances”
Probably really means terminating their accounts
Still…
Must accommodate and not interfere with “standard technical measures”

17. DMCA §512(c): Stored Content
Information residing on provider’s systems at the direction of users (remember the era)
Provider must not “know” of infringing material
That is, specific material, not general knowledge
Must designate DMCA agent
Must follow “notice and takedown” procedure “expeditiously”
General consensus (not without exception): Applies to YouTube, for example, but not your broadband provider or the dorm network

18. DMCA §512(a): “Passive Conduit”
Transitory Communications
Transmission not initiated by the provider
Material not selected by the provider
Recipients not determined by the provider
Transmitted with no modification
Notice and takedown procedure does not apply
For example: Student-owned computer in dorm room served by campus network, your computer in your home served by commercial ISP
Beware campus employees (including faculty) and campus-owned computers (including research)

19. Discussion: Campus Technology/Policy Options
What’s your campus policy with respect to blocking, filtering, bandwidth-shaping P2P (etc.)?
What’s your campus policy with respect to processing DMCA takedown notices?
How does your judicial system deal with infringement?
What’s your campus policy regarding “early settlement letters”?
What’s your campus policy regarding requests for the identity of claimed infringers with or without a John Doe lawsuit?

20. Break

21. The Higher Education Opportunity Act of 2008 (HEOA)
Introduced in Senate: June 18, 2007
The Reid surprise: July 19, 2007 (Thursday)
Senate version passed: July 24, 2007
House version passed: Feb. 7, 2008
Senate language + “Plans”, Detect, Prevent, …
Conference report: July 30, 2008
Valuable clarifications
Final passage, House+Senate: July 31, 2008
Signed into law: Aug. 14, 2008
Negotiated Rulemaking: March-May, 2009
NPRM: August 21, 2009
Final regulations: October 29, 2009
Applies to academic year starting July 1, 2010

22. What the Law Says

23. What the Law Says

24. What the Law Doesn’t Say
The Secretary of Education shall, on an annual basis, identify
(1) the 25 institutions of higher education participating in programs under this title, which have received during the previous calendar year the highest number of written notices from copyright owners, or persons authorized to act on behalf of copyright owners, alleging infringement of copyright by users of the institution’s information technology systems, where such notices identify with specificity the works alleged to be infringed, or a representative list of works alleged to be infringed, the date and time of the alleged infringing conduct together with information sufficient to identify the infringing user, and information sufficient to contact the copyright owner or its authorized representative; and
(2) from among the 25 institutions described in paragraph (1), those that have received during the previous calendar year not less than 100 notices alleging infringement of copyright by users of the institution’s information technology systems, as described in paragraph (1).
Each eligible institution participating in any program under this title which is among those identified during the prior calendar year by the Secretary pursuant to the above, shall
(1) provide evidence to the Secretary that the institution has notified students on its policies and procedures related to the illegal downloading and distribution of copyrighted materials by students as required under section 485(a)(1)(P);
(2) undertake a review, which shall be submitted to the Secretary, of its procedures and plans related to preventing illegal downloading and distribution to determine the program’s effectiveness and implement changes to the program if the changes are needed; and
(3) provide evidence to the Secretary that the institution has developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.

25. What the Law Doesn’t Say
The Secretary of Education shall, on an annual basis, identify
(1) the 25 institutions of higher education participating in programs under this title, which have received during the previous calendar year the highest number of written notices from copyright owners, or persons authorized to act on behalf of copyright owners, alleging infringement of copyright by users of the institution’s information technology systems, where such notices identify with specificity the works alleged to be infringed, or a representative list of works alleged to be infringed, the date and time of the alleged infringing conduct together with information sufficient to identify the infringing user, and information sufficient to contact the copyright owner or its authorized representative; and
(2) from among the 25 institutions described in paragraph (1), those that have received during the previous calendar year not less than 100 notices alleging infringement of copyright by users of the institution’s information technology systems, as described in paragraph (1).
Each eligible institution participating in any program under this title which is among those identified during the prior calendar year by the Secretary pursuant to the above, shall
(1) provide evidence to the Secretary that the institution has notified students on its policies and procedures related to the illegal downloading and distribution of copyrighted materials by students as required under section 485(a)(1)(P);
(2) undertake a review, which shall be submitted to the Secretary, of its procedures and plans related to preventing illegal downloading and distribution to determine the program’s effectiveness and implement changes to the program if the changes are needed; and
(3) provide evidence to the Secretary that the institution has developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.

26. It Also Doesn’t Say…
Each institution of higher education shall, by January 15 of each year, thoroughly analyze its computer network, including its local area and internal networks, to determine whether it is being used to transmit copyrighted works, and either:
(A) Certify that an analysis indicates that the institution’s network, including its local area and internal networks, is not being used to transmit copyrighted works, and that the institution has not received ten or more legally valid notices of infringement in the preceding year from owners of the infringed works or their authorized agents; or
(B) Take affirmative steps, including the implementation of effective technology- based deterrents, to prevent the infringement of copyrighted works over the school’s computer and network resources, including over local area networks, and report the policy developed and the affirmative steps taken.

27. It Also Doesn’t Say…
Each institution of higher education shall, by January 15 of each year, thoroughly analyze its computer network, including its local area and internal networks, to determine whether it is being used to transmit copyrighted works, and either:
(A) Certify that an analysis indicates that the institution’s network, including its local area and internal networks, is not being used to transmit copyrighted works, and that the institution has not received ten or more legally valid notices of infringement in the preceding year from owners of the infringed works or their authorized agents; or
(B) Take affirmative steps, including the implementation of effective technology- based deterrents, to prevent the infringement of copyrighted works over the school’s computer and network resources, including over local area networks, and report the policy developed and the affirmative steps taken.

28. The Final Regulations - 1
§ Program participation agreement.
(b) By entering into a program participation agreement, an institution agrees that—
(30) The institution—
(i) Has 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, including that described in ｧ668.43(a)(10);
(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 with paragraph (b)(30) of this section will be, including those that prohibit content monitoring; and

29. The Final Regulations - 2
(ii) 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 review in paragraph (b)(30)(ii)(A) of this section 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

30. The Final Regulations - 3
§ Institutional information.
(a) Institutional information that the institution must make readily available upon request to enrolled and prospective students under this subpart includes, but is not limited to—
(10) 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

31. Some Clarifying Language from the NPRM
“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 FR 42393, emphasis added)
“[T]he Department anticipates that individual institutions, national associations, and commercial entities will develop and maintain up-to-date lists that may be referenced for compliance with this provision [to offer legal alternatives].” (74 FR 42393)
“The Department will work with representatives of copyright holders and institutions to develop a summary of the civil and criminal penalties for violation of Federal copyright laws to include as part of the Federal Student Aid Handbook that an institution may use to meet this requirement [to provide such information to students].” (74 FR 42392)

32. And a Bit More…
“Rapid advances in information technology mean that new products and techniques are continually emerging. Technologies that are promising today may be obsolete a year from now and new products that are not even on the drawing board may, at some point in the not too distant future, prove highly effective. 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.”

33. “Technology-Based Deterrents” (in case you missed the list)
Bandwidth shaping
Traffic monitoring
Accepting and responding to DMCA notices
A commercial product designed to reduce or block illegal file sharing

34. Discussion: HEOA Compliance Options/Requirements
What technology-based deterrent(s) can/will/should you to use?
What “relevant assessment criteria” do you think you might use?
How much will you have to change what you’re already doing?
How much effort will it take to document the plan?
Do you have any plans to contract for some commercial (or non-commercial) content- distribution system?

35. End