The RIAA threw down the gauntlet to their partners in fighting copyright infringement this week. Illegal downloads of MP3 files have been a problem for the Recording Industry Association of America (RIAA). In a highly debated strategy which was commenced this past week, the RIAA has asked colleges and universities to forward a letter to students as a prequel to the RIAA filing suit against the student. Litigation against the student could only commence once the RIAA has filed a John Doe lawsuit to obtain the identity of a student, but this is not made clear in the RIAA letter. The identity of the student could only be produced if the school has retained the computer logs long enough to allow them to match a time, date, and IP address with the alleged act of infringement.
To date, colleges and universities have been good partners in the battle against illegal downloads, doing their best to educate students about copyright infringement and encouraging the students to use legal music download services such as iTunes. Under the Digital Millennium Copyright Act (DMCA) schools that provide internet service to their students are granted immunity from charges of copyright infringement if they are merely acting as a conduit. In order to retain this immunity, the schools as Internet Service Providers are required to educate their users about copyright law, and to also have a policy in place to deal with repeat infringers of copyright law.
The most recent RIAA action is likely motivated in some part by their losses in the judicial arena. Two key cases( Charter Communications v. RIAA and RIAA v. Verizon) dealt a blow to the RIAA's ability to pursue copyright infringers. Basically in both cases the courts held that a judicial subpoena under section 512(c)(3)(A)(iii) of the DMCA may only be issued to an ISP engaged in storing infringing material on its servers, and not when the ISP is merely acting as a conduit (as the schools are w/ respect these MP3 files) for data transferred between two internet users. This meant the RIAA, if it wishes to pursue copyright infringers, must commence John Doe lawsuits to gain the identity of the infringer, as names are not visible on the files traded, only an IP address. The John Doe process is much more involved than the relatively easier judicial subpoena process under the DMCA.
Some query whether or not the letter has gone overboard in what it asks of the schools, essentially asking them to put the students in a one down position by giving the student the letter from the RIAA which advises the student he/she is now "on notice" and must save the incriminating files for the litigation.If this is not palatable, the other offered alternative is for the student to use his/her credit card on the RIAA website to settle the case.
Comments (4)
In order to retain this immunity, the schools as Internet Service Providers are required to educate their users about copyright law
I'm not a copyright lawyer, but I thought I had a rather decent understanding of the DMCA and the requirements for notice-and-takedown. Don't remember ever reading anything about schools being required to educate about copyright law to retain safe harbour. Not saying it ain't so, but a cite would be appreciated.
Posted by LarsG | March 3, 2007 9:35 AM
Posted on March 3, 2007 09:35
Peg,
(not sure if you remember me but I used to work at Georgetown and we had a bit of interaction regarding emerging identity management and security issues some 5 years ago).
I am not a lawyer. If I write you a letter complaining about your affecting my lawn and ask you to keep the clippings from your lawn mower as evidence because I am intending to bring legal action against you - what responsibility do you have to maintain those clippings at the mere threat of a legal action? They are on the lawn and will degrade rapidly unless you take action to collect them. Your collecting those clippings are really only to my advantage so why would you even attempt to collect the clippings unless a real legal action was taken against you? The added twist of the RIAA action would be for me to contact the person who cuts your lawn for you to ask them to collect the clippings and to have them notify you of possible action since I don't really know who you are - from a legal perspective - what responsibility does someone have to pass on such information and collect any information from receiving such a letter? To me, this entire thing smacks of using other people's ignorance of the law to get them to take actions that are not in their best interests - which I suppose is the american way. Again, I am not a lawyer but I would think the institution should just toss the letter into the proverbial rectangular filing cabinet.
/mrg
Posted by Michael Gettes | March 5, 2007 10:15 AM
Posted on March 5, 2007 10:15
Lars, the Limitation on Liability for Non-Profit Educational Institutions can be found at 17 USC § 512(e). In relevant part the law requires that the institution provide to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright. Most schools have make a pretty good effort on this.
Posted by pegodonnell | March 5, 2007 9:01 PM
Posted on March 5, 2007 21:01
The trouble with IT is that whenever the changes it is wreaking across an industry finally catch the attention of the powers that be, some schmuck comes along and tries to put technology in a straitjacket.
By the end of this month, the UK Patent Office plans to implement a draconian set of new copyright rules that place all the cards in the digital rights pack firmly into the slimy grasp of the world's vested interests. A tardy response to an EU directive that should have been enacted last year, the regulations follow a US example that many believe has only served to wrest all power from consumers and stifle technological advancement.
Posted by Adam Lee
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August 5, 2007 9:55 AM
Posted on August 5, 2007 09:55