Bittorrent at Yale
How can I get caught BitTorrenting?
If content owners, such as the Recording Industry Association of America (RIAA), are actively searching for illegal torrents of a particular work they own, they can identify the Internet Protocol (IP) address of file sharers and send an infringement notice the appropriate ISP (such as Yale). Yale is not legally responsible for catching copyright infringers and does not actively go after torrenters, but it is obligated to cooperate with copyright holders to stop reported infringing activity on its network.
But what’s the difference between lending my CD or DVD to a friend and uploading it via BitTorrent?
File sharing is considered infringing upon the copyright holder’s exclusive right to distribute their work. While the millions of people on the internet may be your friends in a cosmic sense, personal use — even in the traditional non-digital world — is considered a fair use and not your right as a consumer. Fair use are limitations on a copyright owner’s exclusive rights and may be invoked as a defense against charges of infringement, but are not an affirmative right. Check out our page on Fair Use for more on fair use at Yale: yale.freeculture.org/projects/educational-resources/fair-use/
Note that even if you comply with all of Yale’s disciplinary measure, you remain liable to third parties. While they can only see your IP address, the DMCA allows subpoenas to ISPs to provide their users’ identity. So, Yale would have to reveal your identity if served with a subpoena. For Yale’s official policies, visit: www.yale.edu/its/secure-computing/privacy/p2p/filesharing-faq.html
The DMCA and ISP “safe harbor”
DMCA Title 17 section 512 entitled the Online Copyright Infringement Liability Limitation Act (OCILLA) creates a safe harbor for online service providers, including ISPs, against copyright liability if they fit certain guidelines and promptly block access to or remove allegedly infringing material from their network once they receive an infringement notice. According to section § 512(e) “Limitation on Liability of Nonprofit Educational Institutions” non-profit educational institutions are not liable for its faculty and graduate student employees placing infringing material online — as long as they are not repeat infringers nor is the infringing material used for a course at the institution. The institution must also distribute informational materials about US copyright laws to all the users of its network, such as Yale’s ITAUP.
Yale vs Metallica: A History
In April 2000, Metallica filed a lawsuit against P2P service Napster for copyright infringement, unlawful use of digital audio interface device, and the violating the Racketeer Influenced and Corrupt Organizations Act (RICO). The suit also named Yale University, the University of South Carolina, and Indiana University, alleging that the universities’ failures to block access to Napster made them liable for contributory and vicarious copyright infringement.
The suit stated, “Napster has devised and distributed software whose sole purpose is to permit Napster to profit by abetting and encouraging the pirating of the creative efforts of the world’s most admired and successful musical artists. Facilitating that effort are the hypocritical universities and colleges who could easily block this insidious and on going thievery scheme. The last link in the chain are the end users of the stolen musical works, students of these universities and others who exhibit the moral fiber of common looters loading up shopping carts because ‘everybody else is doing it.'”
Yale was monitoring the use of the software but had limited its actions to warning students about potential copyright infringement. In response to Metallica’s suit, Yale blocked access to Napster within the week “until we can clarify the legal issues surrounding Napster.” Yale spokesman Tom Conroy also added that although the university does not condone any use of Napster that violates copyright law, “Yale does not believe it has any liability to Metallica“. Metallica subsequently withdrew Yale’s inclusion in the lawsuit citing the university’s quick action.
A common tactic by copyright holders have been to target specific individuals and, in this case, universities to set an example of a normative practise rather than re-examine their business models. The universities named in the suit were certainly not the only universities that were not blocking Napster – rather, they were a diverse sampling of universities to signal that no universities, from Ivy Leagues to state universities, were exempt should the recording industry continue its crusade. Later in 2000, the attorney representing Metallica and fellow anti-Napster recording artist Dr. Dre (who was simultaneously being sued by Lucasfilm Ltd. for copyright infringment in sampling their ‘THX Deep Note’) sent several universities, including Harvard and Princeton, requests to ban access to Napster on their network.
Despite the implied threat of a lawsuit, many universities denied the request . Duke University said in a written statement that it is “committed to fundamental principles of academic freedom and the uncensored dissemination of knowledge and information…there are legitimate educational and other non-infringing uses of Napster.” Additionally, UC Berkeley declared, “banning Napster is a form of censorship.” To forbid an activity that can be used for legitimate purposes in order to prevent possible illegal activity is presumption of guilt and punishing the innocent. Prior to Metallica v. Napster, universities around the US had already been wary of Napster’s use, but their objections were to the bandwidth drain and network clogs rather than copyright infringement. In reemphasizing that copyright infringement is illegal and not condoned while maintaining their students’ right to make their own decisions at their own risk, these universities made a crucial statement protecting users’ rights as well as re-establishing a university’s role as an internet service provider and intermediary – not an IP police on behalf of copyright owners.
What would happen had Yale followed through and brought the case to court? Foremost, Metallica would have had to prove affirmative action on university’s part in order to prove contributory infringement. Without sending takedown notices to Yale prior to the lawsuit, the complainants did not provide Yale the opportunity to comply and fulfill its role as an ISP. The DMCA’s provisions on ISPs stipulate that they are not liable unless they are actively monitoring content or fail to take action when receiving a legitimate takedown notice. In essence, passivity and net neutrality protects a university’s safe harbor. For more information on network neutrality and privacy, see our page on Internet Privacy at Yale.
Filesharing & the Ivy League
While universities must comply with the law and ensure that students do the same, different schools have different disciplinary policies for network users who violate the institution’s network user agreement. In other words, universities can fall anywhere along a scale of relatively lenient to zero-tolerance after they have fulfilled their legal obligations as ISPs.
The disparity between universities in the Ivy League when it comes to filesharing and disciplinary policies indicates two possible issues:
(1) There is ambiguity about the law concerning how liable a university is as an ISP
(2) Some universities are employing uncertainty as a deterrent/ there is a disparity in political standpoints concerning IP.
As evident in Yale’s involvement with Metallica v. Napster, there was “legal uncertainty” surrounding universities as ISPs in 2000 despite the DMCA’s existence since 1998. Today, common procedure is for copyright holders to send infringement notifications to universities/ ISPs, who in turn forward that to the student associated with the infringing IP address and make sure that the infringing material is disabled via internal policies. This evolved in part from the subsequent push-back from universities in fall of 2000 as well as later clarification of section 512 that universities are not liable as passive ISPs so long as they are unaware of infringing activity on their networks but take action upon notices of infringement. However, the steps necessary to act “expeditiously to remove, or disable access to, the material” appears to differ among universities; from an email confirmation from the student to complete network disconnection, universities among the Ivy League alone disagree on how severely to respond to first notices in order to maintain their safe harbor.
The second issue arose in our research while reviewing university websites summarizing their intellectual property and filesharing policies. Aside from the specific disciplinary protocols, we also noted a disparity in clarity and ease of access to such policies; some universities provide specific courses of action on their sites while others link to a denser .pdf of their network user agreement or make oblique references to possible ramifications of receiving takedown notices. For example, Yale clearly outlines its three strikes policy on its Information Technology Services site as well as offering legal alternatives for free music.
A brief examination of different university informational technology web pages and summaries of filesharing policies also reveal different philosophies among the Ivy League concerning intellectual property. For example, Brown University’s site on Copyright and Fair Use emphasizes the Constitutional provisions for copyright law, including “unfettered access to such works under particular circumstances,” and provides information on Fair Use such as a Fair Use checklist. Columbia University on the other hand, emphasizes that copyright infringement is not only illegal, it “is a serious breach of the commitment to intellectual integrity.” Columbia also calls fair use “a complex doctrine that does not provide clear rules about which uses are fair and which are not.” While Yale explains that “How you use P2P software may violate federal copyright law and University Policy,” Columbia adamantly opines that “the sharing of copyrighted music, film or other media, via a file sharing programs like Kazaa, Morpheus and Gnutella is virtually never a fair use.” The language used by universities when outlining their policies on file-sharing (and intellectual property overall) subtly reveal their respective opinions and political stances on the issue of IP in the digital age, regardless of their specific disciplinary process.
A constant challenge in copyright law has been the chilling effect of ambiguity. Prosecution and prevention of bittorrenting and filesharing in general have utilized basic tactics that neither solve the core issues around intellectual property in the digital age. Copyright holders make examples out of a few individuals or educational institutions to send a message, and universities in turn can create a chilling effect via ambiguity in their disciplinary policy regarding students that receive infringement notices. Furthermore, how much information universities provide to their students and how that information is presented has as much influence as their disciplinary policies alone in shaping behavior and opinion. Universities play a critical role as not only an ISP but also as an educator and resource about copyright law for its students.