1. Can't Stop the Music: Dealing with File Sharing on Campus Steven J. McDonald Rhode Island School of Design EDUCAUSE Live! August 2, 2005

2. 2 We Will Never Stop, Never Stop, Never, Never, Never Stop In June 2005, an average of 8.9 million people were logged onto file-sharing networks at any given time, up from 3.8 million in August 2003, just before the RIAA lawsuits started, and they were trading more than 1 billion songs each month (BigChampagne)

3. 3 But I Still Haven't Found What I'm Looking For According to 2002 data, college students "are twice as likely to have downloaded music compared to the general population and they are three times as likely to do so on any given day" (Pew Internet Project) As of May 2003, more than one half of full- time college students were downloading music, and more than one third were uploading it (Pew Internet Project)

4. 4 Listen to What the Man Said "Some staggering statistics illustrate the magnitude of the problem. Research of FastTrack, a P2P file-sharing service, showed that 16% of all the files available at any given moment are located at... U.S. educational institutions. In addition, FastTrack users trading from... U.S. educational institutions account for 10% of all users on FastTrack at any given moment. It's unlikely that this amount of file-sharing activity is in furtherance of class assignments." – Representative Lamar Smith

5. 5 Back on the Chain Gang "This is a serious challenge that calls for immediate, concrete action.... Specifically, we urge you to adopt and implement policies that: –Inform students of their moral and legal responsibilities to respect the rights of copyright owners –Specify what practices are, and are not, acceptable on your school's network –Monitor compliance –Impose effective remedies against violators" – RIAA Letter to College Presidents

6. 6 Hey, Teacher, Leave Them Kids Alone! "[T]hese issues require a circumspect analysis of the impact of network monitoring on privacy and academic freedom. While network monitoring is appropriate for certain purposes such as security and bandwidth management, the surveillance of individuals' Internet communications implicates important rights, and raises questions about the appropriate role of higher education institutions in policing private behavior." – EPIC Letter to College Presidents

7. 7 Liability: Users (a.k.a. Students) Direct infringement: "Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner,... is an infringer of copyright." Exclusive rights include copying and distribution, the very functions that are at the heart of file-sharing (Very) strict liability –Knowledge and intent are irrelevant to liability –"'Innocent' infringement is infringement nonetheless." –Potential liabilities include as much as $150,000 per infringement, plus attorney fees and possible criminal penalties

8. 8 But You Said It's Nice to Share "Space shifting" your own music for your own personal use generally is regarded as fair use – see, e.g., RIAA v. Diamond Multimedia Systems (9th Cir. 1999) Transferring physical possession of a CD to someone else is protected under the "first sale" doctrine "Sharing" with 10,000,000 of your closest personal friends is neither

9. 9 Face the Music "[N]o one can say how often the software is used to obtain copies of unprotected material. But MGM's evidence gives reason to think that the vast majority of users' downloads are acts of infringement, and because well over 100 million copies of the software in question are known to have been downloaded, and billions of files are shared... each month, the probable scope of copyright infringement is staggering." – MGM Studios v. Grokster, Ltd. (U.S. 2005)

10. 10 And 10,000 Maniacs Number of defendants: 11,770 Potential damages:$ millions each Number of settlements:~2,300 Average settlement:~ $3,000-$5,000 Publicity value:priceless

11. 11 I Fought the Law, and the Law Won BMG Music v. Gonzalez (N.D. Ill. 2005): –Summary judgment – no need for trial –Pre-purchase "sampling" is not fair use –"Innocent" infringement: "Ignorance is no defense to the law." –30 downloads = $22,500 in damages Statutory minimum Could have been $4.5 million

12. 12 Liability: ISPs (a.k.a. Colleges and Universities) Contributory infringement: "[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory infringer'."

13. 13 You Like to Think That You're Immune to the Stuff, Oh Yeah However, the DMCA provides ISPs with two important safe harbors from liability in this context: –Information Residing on Systems or Networks At Direction of Users –Transitory Digital Network Communications The definition of "service provider" is quite broad and generic: "a provider of online services or network access"

14. 14 General Conditions for Eligibility Must adopt, inform users of, and "reasonably implement" a policy that provides for the termination of the accounts of "repeat infringers" in "appropriate circumstances" Must accommodate, and not interfere with, "standard technical measures"

15. 15 Eligibility Conditions for Hosted Content Safe Harbor Have no actual knowledge that specific material is infringing or awareness of facts and circumstances from which it is apparent –Need not monitor or affirmatively seek out infringement "Expeditiously" remove or disable access to infringing material upon gaining such knowledge or awareness Derive no financial benefit directly attributable to the infringing activity Register a designated agent to receive notices of claimed infringement Comply with notice and takedown procedure upon receipt of a notice that "substantially complies"

16. 16 Eligibility Conditions for Conduit Safe Harbor Transmission is directed by someone else Transmission is carried out by an automatic technical process with no selection of material by provider Provider does not select recipients Any transient copy is not "ordinarily" accessible to others or retained for longer than "reasonably" necessary for the transmission Material is transmitted without modification of content

17. 17 Nota Bene Knowledge apparently doesn't matter Takedown requirement doesn't apply But virtually all of the takedown notices colleges and universities are receiving involve precisely this situation Can we just throw them away? Should we?

18. 18 And You May Ask Yourself Am I Right?... Am I Wrong? Are you sure you've done everything the safe harbor requires? Are students with respect to whom we receive multiple notices "repeat infringers" we must terminate under our "reasonably implemented" policies anyway? Do we fail our students if we don't protect them from themselves? What would Congress do if we were to take that position?

19. 19 Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Outsource

20. 20 Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Outsource

21. 21 Don't Punish Me with Brutality Progressive discipline Termination of room connection v. termination of account "[A] service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing."

22. 22 Doctor, Doctor, Give Me the News UCLA: Quarantine System automatically maps computer associated with IP address identified in DMCA complaint, "quarantines" it to a restricted network, and notifies user User is required to take down allegedly infringing material and acknowledge compliance If user fails to do so, computer is blocked from access to all networks

23. 23 Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Outsource

24. 24 School of Hard Knocks "What happens at Penn State if you are caught? By statute, the University must immediately block your network access when we receive notification that a particular computer has been involved in a violation of the law. You may also be taken to court by the copyright holder or charged in the federal courts with a crime. That is not all that can happen.... A student can be expelled and an employee terminated under University policy." – Broadcast message from Penn State's Provost

25. 25 Stop! In the Name of Love "These tactics may seem heavy-handed, but the RIAA is correct that most music file-sharing constitutes copyright infringement.... At an institution devoted to the creation of art, we should be especially mindful of these issues. Artists' and designers' livelihoods are dependent in large part on the creation of, and the respect of others for, copyrights. Just as you would wish to protect the economic value of your own copyrights, so, too, do the musicians, filmmakers, and other fellow artists whose work is being traded over the Internet without appropriate compensation." – Broadcast message to the RISD Community

26. 26 Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Outsource

27. 27 Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Outsource

28. 28 Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Outsource

29. 29 Don't Let the Sun Go Down on Me University of Florida: ICARUS (Integrated Computer Application for Recognizing User Services) Automatically detects P2P traffic and disables user account First strike: 30 minutes + tutorial Second strike: 5 days Third strike: judicial system

30. 30 Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Outsource

31. 31 I Love Rock 'n Roll, So Put Another Dime in the Jukebox, Baby Cornell: Network Usage Based Billing ("Pay by the Drink") For $2.75/month, each user can send or receive up to 2 GB of data through Cornell's internet connection to the outside world Internal traffic is free Excess usage costs $.0015/MB > 80% of users never have to pay more than the basic fee

32. 32 Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Outsource

33. 33 You Can't Always Get What You Want Penn State: Napster subscription service 3000 users in the first 24 hours 100,000 downloads in the first 24 hours ~ 1 million songs available But limited to "tethered downloads"

34. 34 Options Do nothing Respond anyway Education Bandwidth usage limits and quotas Packet shaping Filtering Market forces Offer alternatives Outsource

35. 35 Options Do nothing  Respond anyway  Education  Bandwidth usage limits and quotas  Packet shaping Filtering Market forces ?Offer alternatives Outsource

36. 36 Knowing Me, Knowing You "A copyright owner... may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer.... The subpoena shall... order the service provider... to expeditiously disclose to the copyright owner... information sufficient to identify the alleged infringer of the material... to the extent such information is available to the service provider." – 17 U.S.C. § 512(h)

37. 37 Our Lips Are Sealed "The issue is whether § 512(h) applies to an ISP acting only as a conduit for data transferred between two internet users, such as persons... sharing P2P files.... We conclude from both the terms of § 512(h) and the overall structure of § 512 that... a subpoena may be issued only to an ISP engaged in storing on its servers material that is infringing or the subject of infringing activity." – RIAA v. Verizon Internet Services (D.C. Cir. 2003)

38. 38 Meet John Doe "The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena on behalf of... a court in which the attorney is authorized to practice...." – F.R.C.P. 45(a)(3) –No sworn declaration required –Not limited to identity –No requirement of judicial approval –Few grounds to contest

39. 39 Speak No Evil "In contrast to many cases involving First Amendment rights on the Internet, a person who engages in P2P file sharing is not engaging in true expression. Such an individual is not seeking to communicate a thought or convey an idea. Instead, the individual's real purpose is to obtain music for free.... In sum, defendants' First Amendment right to remain anonymous must give way to plaintiffs' right to use the judicial process to pursue what appear to be meritorious copyright infringement claims." – Sony Music Entertainment, Inc. v. Does 1-40 (S.D.N.Y. 2004)

40. 40 Philadelphia Freedom Elektra Entertainment Group, Inc. v. Does 1-6 Judge ordered advance notice, including reference to attorney referral services No obligation to have the answer to the question Also no obligation to assist students once they have notice