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File-sharing and copyright law: How it affects you

Overview of file-sharing, copyright law and the DMCA

Stanford policies and information

New developments, getting sued

Other information

Overview of file-sharing, copyright law and the DMCA

As the entertainment industry increasingly takes aim at college students for operating file-sharing servers, many questions arise about the legal obligations of Stanford University and the users of its network with regard to file-sharing and copyrighted materials. Here are some answers to your questions about file-sharing, copyright law, and University policies and practices.

Recently, there have been two new developments. First, the RIAA announced in December 2008 that it would stop sending "pre-litigation" settlement offers and initiating mass lawsuits against those that did not respond. Second, in July 2009 Stanford's Information Security Office announced a new automated system for students to respond to DMCA complaints, including a quiz, and automatic re-routing to that page for those who don't respond.

Q. What is "file-sharing?"

A. File-sharing is the process of exchanging files over the Internet. The most common forms of file-sharing are: running an FTP server or using an FTP program, utilizing Internet Relay Chat (IRC), and using Peer-to-Peer (P2P) programs such as KaZaA (which uses the FastTrack protocol), LimeWire (which uses the Gnutella protocol) or BitTorrent. Peer-to-Peer programs typically share files by default, to allow the maximum amount of sharing across the network.

Q. So what's the issue?

A. Most P2P usage (which comprises a significant fraction of all file-sharing) is against the law because it involves the sharing of copyrighted materials without permission from the copyright owner, usually music (MP3) or movie files, but also TV programs, books and images.

Q. How does copyright law work?

A. Original expressions of ideas are copyrighted for a certain period of time (generally the lifetime of the author, plus 70 years), including such mundane works as the papers you write for class. Copyrighted materials are everywhere around you: songs, movies, TV shows, photographs, magazines, books, software, plays and Web sites are just a few things that are subject to copyright protection. Although it has not always been the case, today copyright applies automatically to works upon their creation, and it is not necessary (although there are good reasons) to register the copyright to be afforded copyright protection.

The copyright of a work gives the holder a limited monopoly on reproduction, distribution, and display of that work. When you buy or are given a copyrighted work, you get limited use of it, but not the right to distribute it. So, you can listen to your CD, read your book, and watch your movie, and even lend the original to a friend, but you can't give a copy to your friend without permission from (and generally payment to) the copyright holder. You can play a recent song on the piano (assuming you know how), but you can't perform it for an audience without permission. In the Internet domain, it is probably OK to make a copy of the CD you bought so that you can listen to songs on your iPod or other portable digital music player, but its NOT OK to give that song to your friend without permission from the copyright owner, or allow it to be shared on a P2P system that will give others access to the song without paying for it. And, it is NOT OK to download copyrighted songs, movies, books or images for your personal enjoyment without paying for them (unless you have the express permission from the copyright owner).

There are certain limitations to copyright, most notably "fair use," which allows you to use a small portion of a work in an academic setting. So, you can legally quote a copyrighted work in a paper you write, assuming you give credit to the source. Bear in mind, though, that fair use of copyrighted material requires that your source of the material be legitimate. In a class presentation you can show an excerpt from a TV show that you have on a legal DVD, or even that you taped when it aired. You cannot, however, legally show the exact same excerpt from a pirated DVD, or a video file that you downloaded off the Internet without permission.

Of course this summary of copyright law is a simplification, and not a legal document. For details, see theStanford University Copyright Reminder and the key links, http://library.stanford.edu/using/copyright-reminder .

Q. What is the DMCA?

A. DMCA stands for Digital Millennium Copyright Act. Passed in 1998, the DMCA provides "limitations for service provider liability relating to material online" and specifically contains a section that stipulates a university's responsibilities as an Internet Service Provider (ISP). In other words, the DMCA tells Stanford what it can and cannot do with respect to facilitating the transfer of files. The University as a service provider can give its users the connections they need to transfer files, but if any illegal activity is detected, the University must guarantee that the transfers have ceased. The DMCA holds the University liable if illegal file transfers persist but limits the University's liability if it cooperates fully with every aspect of the law.

Q. What is a DMCA complaint?

A. The DMCA provides a mechanism for copyright owners or their agents to complain to Internet Service Providers (ISP) about illegal file-sharing that is happening on the ISP's network. The ISP-- Stanford-- is then obligated to respond to this "DMCA Complaint."

Copyright owners often hire companies to monitor filesharing networks in order to find the IP addresses (identifiers for computers or devices on a network) of computers sharing specific illegal files. Once an IP address has been logged, the ISP can be tracked down and notified that the computer (and presumably the computer's owner/user) is sharing an illegal file.

Q. Who's complaining?

A. Currently, most complaints are coming from the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and companies that belong to those organizations (such as individual record companies or movie studios). Increasingly though, complaints are coming from television producers, publishers of digital books, and software vendors.

Q. Why do the copyright owners care?

A. Copyright owners, especially the RIAA and MPAA, claim financial damages, in the form of billions of dollars in lost revenues from file-sharing activity.

Q. What are my obligations under the law, and what are the legal risks?

A. Essentially, the law stipulates that you cannot have anything on your computer that you do not own. More importantly, you cannot share any file to which you do not have the legal rights. Currently, copyright violations can result in civil penalties of up to $150,000 per violation. Theoretically, if you send 10 people a copy of a song you ripped, you might be facing statutory damages of $1.5 million dollars. In addition to civil liability, there is potential criminal liability in copyright cases-- with penalties depending on the number and value of products exchanged.

Downloading (taking) and uploading (sharing) content are both fraught with risk. In the John Doe action involving a user of the Stanford network, the purported defendant had purchased most of the music, which was then made available on KaZaA. The purported defendant did not think the actions were so culpable because, after all, the purported defendant had paid for the music. Clearly the plaintiffs in the law suit disagreed with the John Doe's assessment. On the downloading front, a student with multiple DMCA complaints raised the point that she only downloaded TV shows, which she could have legally recorded on a VCR or DVR (digital video recorder) when they aired, so where was the harm? For better or worse, the "harm" question is not really the downloaders' question to ask. Copyright owners get to call the shots about whether their material is shared online, and the downloader is left to bear the responsibility for not respecting the copyright owners' decisions.

Stanford University policy also forbids illegal file-sharing; please see the next several questions for potential institutional consequences.

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Stanford policies and information

Q. What are Stanford's obligations under the law?

A. Stanford must designate an agency to handle the complaints it receives-- here, it is the Information Security Office (ISO), often referred to as the Computer Security Office or just "Security." The Information Security Office must deal with each complaint it receives in an "expedient" manner. In every case, Stanford's obligation is to stop the alleged violation.

The DMCA provides "safe harbor" to Internet Service Providers (ISPs)-- such as Stanford-- for infringing conduct that takes place on the network. That is, provided that Stanford responds to every DMCA complaint and has appropriate and public DMCA policies in place, Stanford is not liable for copyright infringement that takes place on its network. Infringers however, in this case Stanford affiliates, are of course still liable for their actions; safe harbor applies to the institution in the middle. To secure safe harbor, however, the DMCA requires that Stanford have in place a policy that provides for TERMINATION of Internet services for repeat infringers. Accordingly, Stanford will terminate Internet access upon the receipt of a third DMCA complaint for a student. On a case by case basis, the ISO may even disable a SUNet ID, and it is very difficult to function efficiently as a student without services provided under SUNet, such as AXESS. (These terminations are administrative actions that happen to maintain safe harbor under the DMCA and are separate from any actions taken by Judicial Affairs.) Stanford's termination policy is online. Stanford must also comply with any subpoenas issued by copyright holders requesting the identity of alleged copyright infringers.

Q. What is Stanford's policy on file-sharing?

A. Stanford's Administrative Guide Memo 62 provides that all copyrighted materials "must be used in conformance with applicable copyright and other law." The University will comply fully with all facets of the law. Laws are laws, and regardless of whether one agrees with them, they must be adhered to. Because file-sharing can be used legally and beneficially in an academic setting, Stanford has no plans to shut down sharing protocols, a drastic step taken by some universities as a means of avoiding illegal file-sharing.

Q. What can I expect if I receive a DMCA complaint against me?

A. If you have a complaint filed against you with the Information Security Office here at Stanford, they will contact you by email. This email will direct you to ISO's resolution site, and will contain the details of your alleged infraction: the accusing party, the name of the file allegedly being shared illegally, and other technical information. Click [sampleemail.html here] to see an example of an email you might receive. After this email has been sent out, you will generally have two business days to pass a short 5-question quiz, and indicate that you have either removed the file from your computer, or are no longer sharing it with others. If you do not respond in time, your network traffic will be automatically restricted, and you will be directed to the resolution site should you try to go anywhere else.

In Stanford's experience, approximately 95% of recipients of first time DMCA complaints never receive a second. Accordingly, Stanford is of the view that, except in exceptional circumstances, a first DMCA complaint is between the recipient and Security and, once resolved, it does not go beyond the Information Security Office.

Note that receiving a single DMCA complaint, or even none at all, does not preclude you from receiving a pre-litigation letter, or being sued directly.

Q: What will happen if I receive a second DMCA complaint?

A. Connectivity to the Internet will be temporarily disabled while you are given a chance to either remove the allegedly offending material, or stop sharing it. The Information Security Office may refer the matter to your residence dean and completely disconnect you if the offense persists, and a reconnection fee would apply.

Q: What will happen if I receive a third DMCA complaint?

As an administrative action, in order to maintain safe harbor under the DMCA (i.e. protect Stanford from your actions), your Stanford networking privileges will be terminated. Your SUNet ID may also be disabled, on a case by case basis. As a disciplinary matter, the Information Security Office will refer the matter to Judicial Affairs. To restore network privileges you will be asked to sign an agreement with the University, and will be charged a new privileges fee up to $1000.

Q. How can I get caught if I violate copyright law or Stanford policy?

A. Organizations like the RIAA and MPAA frequently police file-sharing programs for copyrighted materials belonging to the artists they represent. Some students are under the misimpression that their activity on the Internet is largely anonymous and untraceable. On the contrary, much of your Internet activity is logged on the computer systems you use and these logs can be used to confirm or implicate you in illegal activity. According to recent legal rulings, the RIAA or other copyright holders can cause subpoenas to be issued that would force Stanford to reveal your identity.

Q. What if I want to challenge the DMCA complaint with the copyright owner?

A. Let ISO know that you have done that. ISO will make a note of it.

If your counterclaim is accepted, the administrative action taken by the University will be rescinded (e.g., if your record has one copyright violation, the number of violations will go back to zero). If the counterclaim is rejected, the administrative action will remain in effect. As for disciplinary actions, you can challenge those through Judicial Affairs.

For more information on filing a counterclaim, visit:

Q. What if the DMCA complaint is valid, but there are extenuating circumstances?

A. You will still have to take the quiz and resolve the complaint at ISO's resolution site, but you may also send an email to the ISO indicating the circumstances. Generally on a first complaint your email will simply be filed by the ISO - while there are legal obligations at that point, you are not yet "in trouble" with the university. On repeat complaints these emails will be provided to your Residence Dean or to Judicial Affairs for consideration. ISO may also waive the reconnection fees in rare instances, e.g. if you had no network access for more than 48 hours while away on a family emergency and thus could not respond promptly to a first complaint. If there is an extenuating circumstance, you should let ISO know as soon as possible so they can take it into account while processing the complaint. Of course Stanford's actions under university policies will have no legal effect on the validity of the DMCA complain in the eyes of the law.

Q. What if I'm dissatisfied with my treatment under University policies?

A. The ISO decides how to apply Stanford's copyright policy in each case. When there are questions, ISO staff will refer the matter to the Chief Information Security Officer (at a minimum). The ISO may consult with other departments to make the decision about how to apply the policy in individual circumstances, including the Office of the General Counsel (the University's Attorneys), the Office of Student Computing, or the Chief Financial Officer's office (through whom the ISO reports).

If a student is unhappy with the decisions made by (or the penalties applied by) the ISO, she may avail herself of the Student Non-Academic Grievance Procedure, which is detailed in the Stanford Bulletin, towards the end, in the Nonacademic Regulations section. In short, for informal resolution, she can complain to the person superior in the chain of command, in this case the Office of the Vice President for Business Affairs and Chief Financial Officer and/or the Internal Audit department. For formal resolution, she would submit a written complaint to the Director of the Diversity and Access Office (even if the grievance is not about diversity). She would generally need to do this within a month of the end of the quarter.

Q. Does Stanford search its network for illegal files?

A. Stanford does not currently search for illegal files, as some universities do.

Q. How does illegal file-sharing hurt Stanford's online security and networking?

A. The number of complaints that Stanford receives per day has grown exponentially over the past few years. The growth had diverted a full-time staff position at Information Security Office just to process all of the complaints. Eventually, an automatic resolution system was released to manage the process. File-sharing hurts security on campus in that the staff is prevented from working on more beneficial projects for the University. For example, during late July and August of 2003, Stanford, like many universities, were significantly affected by Internet attacks targeting vulnerabilities in the Microsoft Windows operating system. Security as well as other University computing and networking staff, including those at Student Computing (then Rescomp), would rather spend their time protecting students' computers and not have to carry the burden of notifying students of DMCA complaints and shutting connections off when a user fails to respond in 48 hours.

From a networking perspective, Stanford suffers under current file-sharing because of the resources it eats up. The people at Networking Systems want to help limit Stanford's liability under the DMCA, but aside from this concern, they also want to provide a reliable network for all users. Therefore, Networking Systems has limited the amount of network resources that may be used for file-sharing. The purpose of the cap is to make the network usable for schoolwork and other important activities. It is not to punish the students-- faculty and staff share the same restrictions--but rather to improve the network for everyone.

In general, dealing with illegal file-sharing takes up valuable resources at the University. In addition to computing and networking resources and staff time, the Office of the General Counsel, Judicial Affairs, Residential Education (with the Residence Deans), and others are all involved in the process. The longer illegal file-sharing continues, the longer resources cannot be used to provide better services to the University community and to further the University's educational mission.

Q. Why is file-sharing legally dangerous for Stanford?

A. The ballooning number of complaints that Stanford receives on a daily basis has not gone unnoticed-- the worse the problem gets at Stanford, the more strictly agencies will monitor the files being transferred. As a high-profile private institution, Stanford of course needs to be especially mindful of the risks of litigation. As such, the University must have an approach that clearly meets what's required by the current law, in the best judgment of those that make the decisions. Whether individuals think sharing music or movies is a big deal is unfortunately irrelevant.

In July 2007, a senator introduced legislation that would have required colleges to stop file-sharing altogether. Fortunately it was defeated quickly, but it illustrates how the enormous value of lawful file-sharing is put at risk by reactions to unlawful file-sharing.

Q. How do other schools handle this problem?

A. Universities and colleges across the country have adopted a variety of policies and practices when handling copyright violation complaints. Some schools exercise little to no restriction on file-sharing while others have opted to prevent file-sharing altogether. For example, some schools block P2P applications completely and complaints can result in judicial hearings.

Some schools adopt a policy somewhere in between, such as initially disconnecting students and then reconnecting them pending required meetings or other communication. Many schools also have policies for repeat offenders where administrative and disciplinary actions taken against students escalate with each offense.

Some schools have also signed deals with legal digital music providers, such as Napster, to offer free or discounted subscriptions to their services and hopefully, get rid of illegal file-sharing on their campuses.

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Getting Sued

Q. I hear the RIAA sends out "pre-litigation" letters. What are they?

A. Copyright holders have several options available to them to redress perceived copyright infringement. Copyright holders can send a complaint under the DMCA (to date this has been by far the most common approach); they can file a criminal complaint with local or federal authorities; or they can bring a civil lawsuit directly against the infringer. They can avail themselves of any or all of these options, in any order. Back in 2007 the RIAA announced a new campaign to send out "pre-litigation" settlement offers to offenders at college campuses.. These letters claimed that a lawsuit (and thus a subpoena for a user's identity) was forthcoming, and gave the user a chance to settle in advance, presumably at a discount. Since this was independent of the DMCA complaint process, people who received such letters may not have had any DMCA complaints previously. Under the RIAA’s campaign, many Stanford students were targeted and the University estimates that students collectively paid over $100,000 in settlement costs. In December 2008 the RIAA announced that it would stop sending "pre-litigation" settlement offers and initiating mass lawsuits against those that did not respond.

Since 2008, various smaller companies have adopted the pre-litigation letter tactic, especially small independent filmmakers.

 

Stanford becomes aware that a pre-litigation letter is coming by receipt of an email from the copyright holderto our Information Security Officer identifying an IP address. Stanford tries to track down the user of the IP address after receipt of this email, and Stanford forwards the email to the IP address user.. Stanford will not identify thestudent to the copyright holder until it is served with a lawful subpoena. Stanford will, however, comply with lawfully issued subpoenas, which may include releasing the name of a student..

Q. How do pre-litigation letters and lawsuits relate to DMCA complaints?

A. It doesn't. You may receive a pre-litigation letter or notified of a lawsuit whether or not you've received DMCA complaints. Penalties for DMCA complaints are imposed by the University. Pre-litigation letters indicate that the copyright holders intend to sue in courts of law.

Q. What should I do if I receive a pre-litigation settlement letter?

A. That is up to you. But you may want to decide with the assistance of an attorney who can help you weigh your options. If you contact the RIAA and offer to settle, you will reveal your identity, which would otherwise require a subpoena and lawsuit to obtain. If you do nothing, you risk being sued. Students at other universities who have been sued (prior to the "pre-litigation" campaign) have ended up settling for very large amounts.

Q. How many Stanford students have received DMCA complaints, received pre-litigation letters, been charged criminally, and been sued?

A. Over the course of the 2006-07 academic year Stanford received roughly 1200 DMCA complaints, virtually all of them first complaints against individual students. Under 20 students received pre-litigation letters, noting that the RIAA's program started late in the year and that we were not among the first schools to be targeted. Since then seven John Doe lawsuits have been filed against Stanford students, and 40 additional students have settled in lieu of being sued for a total of about $150,000. Bear in mind that Stanford is only aware of suits when served with subpoenas, and may not be informed when students who receive pre-litigation letters identify themselves and offer to settle. No Stanford students have been charged criminally.

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Other information

Q. What can I do to help? How can I avoid problems with this?

A. The simplest way to avoid problems is to stop both downloading and sharing illegal files. Students often fail to recognize that trading in most copyrighted material is, in fact, breaking the law, and that it can lead to serious consequences. If you are using a P2P application, don't download files unless you are confident they can be freely traded. Perhaps more importantly, if you don't have files that you can legally share (even if you have the rights to own them, such as legal downloads or CDs you have purchased), configure the application not to allow uploads to other users. Most importantly, many P2P applications keep running even after you quit, unless you explicitly tell them to disconnect. Disconnect your program from its network whenever you can, and quit it when you're not using it.

In response to the June 2007 pre-litigation letters, several students indicated that they were not aware that a file-sharing program was configured by default to share files back out through the Internet. These students did not intend for their lawfully purchased music to be given away freely.

Q. How can I evaluate websites and services for obtaining digital files legally?

A. Unfortunately, it’s not as easy as it should be to answer this question. You can essentially either a) rely on "known sources", or b) search for clues. "Known sources" can be straightforward -- the big players and major labels/studios often advertise where you can obtain legal content. For the lesser known resources, you can start by examining the page itself. We have developed this five-point “checklist” you can use as a guideline to evaluate websites and other sources of digital media: Revenue Source, Content Source, "About" Page, Site Reputation, and Your Instincts. You should evaluate all areas as a whole when considering the legitimacy of any sources for media content. See Evaluating Sources of Online Media: Is Your Source Legal? for more info.

Q. How can I share digital files legally?

A. You can legally share any files to which you personally own the copyright, including academic and artistic work as well as useful documents such as resumes. You can also share works that exist in the public domain (i.e., works whose copyright has expired). Keep in mind for legal file-sharing that the burden is on you to ensure that there's copyright authorization for any shared files. There is much interest in legal file-sharing and innovative peer-to-peer technologies in business, government, and education, especially with increasing network capabilities like those of Internet 2. See, for example, the Peer-to-Peer Working Group.

Q. How can I find out more information?

A. The following is a list of supplementary materials referred to in this page:

For more information, visit these informative Web sites:

Stanford policies and information

The DMCA-required notice
Required notice posted by Information Security Office on how to contact the University with a formal complaints.
Provost's 2004 statement on File-sharing and Copyright Infringement (PDF)
Provost's memo to the Stanford community specifically addressing file-sharing and copyright infringement.
Provost's Annual Copyright Reminder
Provost's memo to the Stanford community.
Stanford University Administrative Guide, Computing Chapter
Information on University policies, codes and guidelines concerning conduct both on- and off-line.
Stanford's new DMCA reconnection fee policy
New policy announced by the General Counsel's Office, to take effect in September of 2007.

Related Stanford departments

Information Security Office
The main University organization designated to handle complaints about illegally shared copyrighted materials.
Office of the General Counsel
The OGC provides legal services to Stanford University, Stanford Hospital and Clinics, and Lucille Packard Children's Hospital.

Resources on Technology, Copyright Law, and the DMCA

Copyright & Fair Use (Stanford University Libraries)
Information about fair use and how it applies to you as part of the Stanford community.
U.S. Copyright Law
More information on US Copyright Law from the U.S. Copyright Office.
Chilling Effects Clearinghouse
A joint project of the Electronic Frontier Foundation (EFF) and Harvard, Stanford, Berkeley, University of San Francisco, and University of Maine law school clinics to help people understand the protections that the First Amendment and intellectual property laws provide.
Stanford Law School Center for Internet and Society
Information and links about this evolving area of the law.
Stanford Center for Law, Science, and Technology
Main site for the program that addresses the increasing role of science and technology in our economy and culture.
Stanford Student Computer and Network Privacy Project
A pilot study on student privacy issues, a product of an interdisciplinary course offered through the Computer Science and Science, Technology and Society departments.
EDUCAUSE summary of DMCA issues
A summary of news and information on DMCA issues provided by EDUCAUSE, "a non-profit association whose mission is to advance higher education by promoting the intelligent use of information technology."
Electronic Frontier Foundation DMCA archive
Archived links to legal documents, articles, etc. on DMCA issues, provided by the Electronic Frontier Foundation, an organization that works to help protect civil liberties, especially in relation to technology.
UC Berkeley "Stay Connected"
Campaign on bandwidth and bandwidth abuse by the residential computing organization from the school across the bay.

Q. Who can I contact with my questions or concerns?

A. If you have any more questions, feel free to talk to your RCC and/or contact Residential Computing by emailing copyright@rescomp.stanford.edu. You may also want to contact the Information Security Office and/or the Office of the General Counsel.

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