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Features: Cornell's New DMCA Policy Memo a Bad Idea
Posted by Ernest Miller on Tuesday, September 03 @ 12:17:25 EDT Digital Millennium Copyright Act
Kuro5hin has a story on a new memo sent out by the DMCA agent for Cornell University (Cornell Actively Disciplines Student DMCA Violators). The letter can be found on Cornell's Office of Information Technology's Policy Office website (Important Information about Using the Cornell Network to File-Share and Download Music, Games and Videos).

First, let me make it clear that I think it wise (even legally required) that universities adopt appropriate DMCA ([PDF]) policies in their role as ISPs, if they want to take advantage of the DMCA's safe harbor provisions. They should, of course, promulgate these policies to their users. I also think such statements are a good place for universities to set out appropriate copyright policies. However, this memo from Cornell is definitely not the right way to do it. First, the memo is riddled with errors:

The Errors

The distribution of copyrighted materials over the Internet for which the distributor (any server including your computer) does not have permission can be [sic] violation of federal criminal law, a law called the Digital Millennium Copyright Act of 1998 ("DMCA").
Actually, that would be the Copyright Act itself. Illicit distribution of copyrighted materials is known as copyright infringement and is punished as such.
Each criminal offense carries with it a minimum fine of $30,000 and a potential jail sentence.
Uh? Where did this come from? 18 USC 2319, which specifies penalties for criminal infringement of copyright, states clearly that violators may be jailed, fined or both. There is no "minimum fine." In civil cases there are "statutory damages," but the minimum for each violation is $750, the maximum is $30,000.
For the average student who is downloading and serving copyrighted files without permission of the owner on the Internet the odds that they will be identified, arrested and sent to federal prison are probably quite small.
If all you are doing is downloading copyrighted files without permission, I'm not sure that would be considered a "criminal" copyright violation at all. As far as I know there have been precisely zero prosecutions for wantonly downloading copyrighted files.
The recreational downloading of copyrighted materials is not without its consequences, however. It is a violation of both federal law and university policy.
Cornell declares web surfing illegal! When you visit a website your browser downloads information which is 99 times out of a hundred, copyrighted. This is just poor phrasing actually, and I only pick on it because of the other problems with the memo. However, the idea that downloading copyrighted material is a violation of copyright law is not clear. The appeals court in the Napster decision held that it was, but the language was strained and buying infringing copies on a street corner is not generally considered infringement. In any case, what exactly are the elements of the crime? Cornell is, of course, free to set its own policies.
They focus on colleges and universities because the DMCA makes Internet service providers liable for contributory copyright violations if they do not remove infringing material when they have notice of it and because college campuses are hotbeds of file sharing activity. Thus, for the many students who ask, "I download lots of stuff on my home computer and I never got a violation, so why did I get one here?" there is your answer.
This is a matter of opinion, but I think that one of the reasons colleges and universities are a focus is because they have a captive audience of Internet users. At home, if I get kicked off my DSL account, I will switch to digital cable. My DSL provider, therefore, has an incentive to do the minimum possible with regard to copyright infringers - they are unlikely to create a policy as draconian as Cornell's. Furthermore, regular providers of broadband service have large pockets for fighting the encroachment of the copyright industry (i.e. Verizon - Verizon Protects Its Own Interests - Offers Mixed Bag to Consumers). Residents of dorms don't usually have the same choice when it comes to ISPs and university legal departments are highly unlikely to promote a policy that risks any liability. In other words, it is much easier for the copyright industry to shutdown filetrading on college campuses. Finally, if I tick off my ISP, the worst they can do is kick me off - not put a disciplinary letter in my permanent record.

Additionally, it is copyright law (rightly or wrongly) that makes ISPs liable for contributory infringement, the DMCA provides a safe harbor for ISPs to avoid liability.

What makes these errors particularly grating is that the DMCA agent should know better - she is Tracy Mitrano, Co-Director of Cornell's Computer Policy and Law Program and a graduate of Cornell Law School. When asked about the errors, she stated that the memo is "not a legal brief, not an advocacy course or an article for a law journal" and directed the author to speak with Cornell's office of legal counsel.

Copyright law is scary enough as it is; memos discussing it needn't mislead in order to be more frightening to students.

Okay, so Cornell's memo isn't up to legal snuff. What about the policy?

The Policy

Frankly, the Cornell's DMCA policy sounds as if it was written by the MPAA or RIAA.

The student usually finds out about it when they receive a standard notice form from the university’s designated DMCA agent informing them that a copyright holder has sent the university a notice of infringement identifying their ResNet IP address. The Office of Judicial Administration simultaneously receives a copy of that notice, and the student is requested to confirm a cease and desist action to the copyright agent and to make an appointment with the JA for discipline. [emphasis added]
Sheesh, that is some assumption of guilt. I guess Cornell simply assumes that no copyright holders err, or are (heavens forbid) liable to abuse the DMCA takedown notice procedure. At least promulgate a policy that allows for some challenge to a DMCA takedown notice if the recipient of the letter believes it to be mistaken. Moreover, perhaps this memo might have noted that recipients of a DMCA takedown notice have the right to respond, if they are willing to go to court to vindicate their rights. The memo wouldn't even have to go into detail, just a pointer to a site like Chilling Effects would be good.
If the student ignores the request, then the DMCA agent instructs the network operations center to block their IP address, which effectively blocks their Internet connection.
This memo does not delineate how long the student has to respond or what his/her other options might be. In any case, would this protect Cornell from liability? This is not clear. Does blocking a residential Internet connection terminate a student's access to the network? What if they are file sharing from a laptop at various campus locations? I don't know enough about Cornell's network architecture, but this could be a glaring loophole. So, despite the draconian nature of the policy, it really doesn't protect Cornell.
Finally, if you don’t like or disagree with the law, learn more about and take a stand on it in the arena of national politics. With implications for free speech and academic inquiry, it might just become the political issue of your generation.
Damn straight there are "implications for free speech and academic inquiry." Too bad this policy and this memo do little to address them.
 
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Related Links
· Kuro5hin
· DMCA agent
· Cornell University
· Cornell Actively Disciplines Student DMCA Violators
· Office of Information Technology
· Policy Office
· Important Information about Using the Cornell Network to File-Share and Download Music, Games and Videos
· DMCA
· 18 USC 2319
· Verizon Protects Its Own Interests - Offers Mixed Bag to Consumers
· Tracy Mitrano
· Computer Policy and Law Program
· Cornell Law School
· MPAA
· RIAA
· Chilling Effects
· More about Digital Millennium Copyright Act
· News by Ernest Miller


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