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

Agenda § 1: 00 -1: 15 Introductions § 1: 15 -1: 45 Copyright basics, 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 2 2

Copyright Basics: U. S. Constitution Article I [the powers of Congress] Section 8. The 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… 3 3

Copyright Basics: U. S. Constitution Article I [the powers of Congress] Section 8. The 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 4

Copyright Basics: What Can be Copyrighted? How? When? § Original works of authorship § 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 5 5

Copyright Basics: Examples § Pictorial, graphic, and sculptural works § maps, catalogs, reports, dolls 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 6 6

Copyright Basics: More Examples § Every e-mail you’ve ever written or read § The Copyright Basics: More Examples § Every e-mail 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 7 7

Copyright Basics: Exclusive Rights of Copyright Holders § Reproduction of the work in whole 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 8 8

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

Copyright Basics: Infringement § Exercising any of the copyright holder’s exclusive rights § § 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 10 10

Copyright Basics: Exceptions/Defenses to Infringement § If you are the copyright owner § If 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” 11 11

Copyright Basics: Exceptions/Defenses to Infringement § If you are the copyright owner § If 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 12

Copyright Basics: Fair Use (the Four Factors) § Purpose and character of the use 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 13 13

Copyright Basics: Fair Use (the Four Factors) § Purpose and character of the use 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 14

Copyright and the Internet: The DMCA § Enacted 1998 Pre-Napster, pre-MP 3, pre-Wi. Fi, Copyright and the Internet: The DMCA § Enacted 1998 Pre-Napster, pre-MP 3, pre-Wi. Fi, 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 § 15 15

DMCA: General Safe-Harbor Provisions § Must have policy of terminating repeat infringers “in appropriate 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” 16 16

DMCA § 512(c): Stored Content § Information residing on provider’s systems at the direction 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 You. Tube, for example, but not your broadband provider or the dorm network 17 17

DMCA § 512(a): “Passive Conduit” § Transitory Communications § § Transmission not initiated by 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) 18 18

Discussion: Campus Technology/Policy Options § What’s your campus policy with respect to blocking, filtering, Discussion: Campus Technology/Policy Options § What’s your campus policy with respect to blocking, filtering, bandwidth-shaping P 2 P (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? 19 19

Break 20 20 Break 20 20

The Higher Education Opportunity Act of 2008 (HEOA) § Introduced in Senate: June 18, 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 21 21

What the Law Says 22 22 What the Law Says 22 22

What the Law Says 23 23 What the Law Says 23 23

What the Law Doesn’t Say The Secretary of Education shall, on an annual basis, 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. 24 24

What the Law Doesn’t Say The Secretary of Education shall, on an annual basis, 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 25

It Also Doesn’t Say… Each institution of higher education shall, by January 15 of 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 technologybased 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. 26 26

It Also Doesn’t Say… Each institution of higher education shall, by January 15 of 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 technologybased 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 27

The Final Regulations - 1 § 668. 14 Program participation agreement. (b) By entering The Final Regulations - 1 § 668. 14 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 28 28

The Final Regulations - 2 (ii) Will, in consultation with the chief technology officer 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 29 29

The Final Regulations - 3 § 668. 43 Institutional information. (a) Institutional information that The Final Regulations - 3 § 668. 43 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 30 30

Some Clarifying Language from the NPRM “The Department believes that some institutions may be 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) 31 31

And a Bit More… “Rapid advances in information technology mean that new products and 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. ” 32 32

“Technology-Based Deterrents” (in case you missed the list) § Bandwidth shaping § Traffic monitoring “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 33 33

Discussion: HEOA Compliance Options/Requirements § What technology-based deterrent(s) can/will/should you to use? § What 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) contentdistribution system? 34 34

End 35 35 End 35 35