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Copyright Tutorial

Are file sharing applications, such as Limewire and BitTorrent illegal?

No.

File sharing applications, in and of themselves, are not illegal they are simply technologies that enable the sharing of computer files. However, as with many technologies, people can use file sharing applications in ways that are legal or illegal.

Basics of peer-to-peer networks

File sharing applications allow your computer to connect to a peer-to-peer (P2P) network. Once connected, you are able to download and share files with other users on the network. P2P networking has been around for many years, but file sharing applications have made it easy to trade files with people around the world.

The files available on P2P networks (music, movies, software, etc.) are stored on each user’s personal computer. When you download a file from this type of network, you connect directly to the computer of another user on that network. When others download a file you are sharing, they connect directly to your computer to obtain it.

A note about privacy and security issues

When you install file sharing applications, you may get more than you bargained for. Many install smaller applications known as spyware and adware without your knowledge. These applications can monitor your web surfing habits and generate pop-up advertisements.

Other users may gain access to files on your hard drive that you did not intend to share, or send you files infected with a virus. If your computer becomes infected, it could be used to attack other computers on the network.

Because the developers of some file sharing programs don’t want you to uninstall their programs, your computer may continue sharing files via file sharing networks after you’ve tried to uninstall your file sharing software. For that reason, if you have received a copyright violation notice, it is wise to scan your computer for viruses and malware. It may be necessary to completely reinstall the operating system on the computer in order to guarantee that your computer will cease sharing illegal files.

The basics of copyright law

Whenever someone creates something that is original and expressive and fixes that expression in a way that lets you read, see, hear, or perceive it, federal law gives the creator a copyright in that work. For example, if a musician writes or records a song, the law grants the creator a copyright as soon as it is fixed on paper or recorded.

The length of a copyright is generally the creators lifetime plus 70 years. During this time, he or she is the only person authorized to do any of the following with that work:

  • Make copies of it
  • Distribute it publicly
  • Make derivative works or adaptations based on it
  • Perform/Display it publicly
  • For sound recordings, perform it publicly through digital audio transmission
  • Give someone else permission to do any of the above

Copyright attaches to a work from the moment the work is fixed. It doesn’t matter whether or not the copyright holder registers their work with the federal Copyright Office or puts any kind of notice or symbol on those works to show that they are protected by copyright. For that reason you should assume that any music, movies, or software shared on file sharing networks have copyrights, unless you clearly know otherwise.

Downloading a file involves making a copy of it to your computer. Sharing files over a peer-to-peer network involves distributing and performing them publicly, because anyone using the application has access to it.

If you do not have the permission of the copyright holder, and you download and/or distribute their copyrighted material, then you are violating the copyright holder’s rights and the law. This is known as copyright infringement.

There is currently no exception in copyright law that allows you to download or distribute whole works without the copyright holder’s permission. Copyright law does allow some limited uses of others copyrighted works without the copyright holders permission. This is called Fair Use and will be briefly covered later in this tutorial.

Why does copyright law grant exclusive rights to copyright holders?

It is important to understand the purpose of the copyright law and why the law grants copyright holders exclusive rights to their works for a period of time. Copyright law is intended to strike a balance. On one hand, it gives creators substantial control over the use of their works, so that they have an economic incentive to keep creating them. This benefits society by encouraging the creation of expressive works, which may contain facts and ideas (elements that are not protected by copyright) that people can use freely to expand knowledge within society.

On the other hand, copyright law limits the term of copyright and grants some rights to use works without the copyright holder’s permission. This further promotes the flow of information and creativity in society.

Some people may not care about making money from their works and are happy to donate them to the public domain however, most expect to be compensated for using their time, talent, and creative energy. Even if music labels take a sizable amount of the money from sales of a musicians work, the musician will still make less money if sales are lost to illegal file sharing. Moreover, the labels use money from music sales to promote and support new or less popular musicians, labels may be less willing to do so if funds from music sales decrease due to illegal file sharing.

What are the penalties for infringing someone’s copyright?

People who infringe copyrights can be sued by the copyright holders for substantial amounts of money. In addition, anyone who willfully infringes a copyright may be prosecuted and face jail time. There are also the costs of having to hire a lawyer and go to court to defend against an infringement claim.

Statutory penalties are found at 18 U.S.C. § 2319. A defendant, convicted of violating 17 U.S.C. § 506(a) by the unauthorized reproduction or distribution, during any 180-day period, of at least 10 copies or phonorecords, or 1 or more copyrighted works, with a retail value of more than $1,000 can be imprisoned for up to 5 years and fined up to $250,000, or both. 18 U.S.C. §§ 2319(b), 3571(b)(3).

Defendants who have previously been convicted of criminal copyright infringement under 18 U.S.C. § 2319(b)(1) may be sentenced to a maximum of 10 years imprisonment, a $250,000 fine, or both. Finally, a defendant is guilty of a misdemeanor violation if he violated rights other than those of reproduction or distribution, or has reproduced or distributed less than the requisite number of copies, or if the retail value of the copies reproduced or distributed did not meet the statutory minimum, or if other elements of 17 U.S.C. § 506(a) are not satisfied. Misdemeanors can be sentenced a maximum of one year and can be fined a maximum of $100,000. See 18 U.S.C. §§ 2319(b)(3), 3571(b)(5).

Some people believe that if they just share files with others, and don’t charge for the files or otherwise make any money from file sharing, that the law doesn’t apply. THIS IS WRONG. Copyright holders can still sue you for money damages. The No Electronic Theft (NET) Act makes it a crime to reproduce, distribute, or share, electronically or otherwise, copyrighted works such as songs, movies, games, or software programs, even if the person copying or distributing the material acts without any commercial purpose.

Copyright law, including the NET Act, applies to situations such as running a file sharing application with outgoing transfers enabled, hosting files on a Web account, transferring files through Internet Relay Chat (IRC), and other methods of making copyrighted material available over networks.

How did the University get involved in this copyright complaint against me?

Copyright holders and trade associations representing them, like the Recording Industry Association of America (RIAA), Motion Picture Association of America (MPAA), and Business Software Alliance (BSA), spend a great deal of time and money scanning Internet traffic to identify the transfer of files containing copyrighted material. When they determine the IP address involved in the transfers, they generally send a Digital Millennium Copyright Act (DMCA) take-down notice to the user’s Internet service provider.

For purposes of the DMCA, Brescia University is regarded as an Online Service Provider (OSP) for users of the Brescia University information technology infrastructure. At Brescia University, the Information Technology Department receives these DMCA notices from copyright holders. The DMCA recognizes that OSPs like Brescia University generally should not be held liable for infringement by their users. This protection is removed if OSPs learn of alleged infringement and do nothing about it.

In order for Brescia University not to be held liable for illegal activity by our network users, we follow the provisions established within the DMCA. When Brescia University receives a notice alleging that the user has infringed a copyright, we must act expeditiously to remove, or disable access to, the infringing material. To comply with this requirement, we notify the user and disable network access to the computer which held the IP address at the time of infringement. We are also required to adopt and implement a policy to terminate network access in appropriate circumstances for users who are repeat infringers. The exact steps and time frame for Brescia University’s response to copyright complaints are explained in detail later in the tutorial.

Can copyright holders themselves find out who I am and sue me?

Yes. It is just more difficult and time consuming for them than it used to be but they can, and do, find out.

In the past, The Digital Millennium Copyright Act allowed copyright holders to issue subpoenas to Online Service Providers (OSP) seeking the identity of alleged infringers without a judge’s consent. This was contested by Verizon in the case RIAA v. Verizon, and as a result copyright holders must first file a “John Doe” lawsuit against an infringer. The OSP is still required to supply the information expeditiously, and if Brescia University receives a valid subpoena concerning your file sharing activity, we will be compelled to turn over your identity.

Additional Resources: Summary of RIAA v. Verizon at Groklaw

If I think the law is wrong, can’t I just ignore it?

No.

For nearly a decade the legal debate over P2P networks has increased. Many in the music industry argue that illegally shared music decreases retail sales and that this hurts artists. Other artists disagree and promote the sharing of their works. Some consumers claim that CDs are too expensive and music is not available in desired formats. The motion picture industry and software publishers have also joined the debate, seeking more vigorous enforcement of copyright law. At the same time, consumer rights groups such as the Electronic Frontier Foundation have voiced strong concerns about some of the methods proposed to deal with copyright infringement.

The debate is also occurring in Congress, where legislation related to copyright infringement on the Internet is frequently introduced. Much of the legislation proposed aims at strengthening copyright holders rights and protections. Some people feel that the changes being proposed are too extreme, while others feel they are necessary to stem a tide of copyright infringement.

Everyone has their own opinions and concerns, and it is not possible to determine the outcome of this heated debate. You have the right to criticize the current law, petition your local government representatives for more consumer-friendly copyright laws, and boycott the recording industry. BUT as of today, you DO NOT have the right to download or share whole copies of copyrighted material for entertainment without the copyright owners permission. If you do so, you may face serious penalties under the law and University policy.

Under what circumstances can I use someone’s copyrighted material without the copyright holder’s permission?

As discussed previously, copyright law is intended to give creators certain rights to their work so that they can gain recognition and compensation. They have the exclusive right, for the term of the copyright, to reproduce, distribute, make adaptations, and publicly display or perform the work. However, copyright law does allow people to use copyrighted works without the copyright holders permission, in certain cases where the use is limited and serves an important public purpose. For example, the law allows for the fair use of a copyrighted work for such purposes as teaching, scholarship, research, criticism, comment, and news reporting. Whether or not a particular use is fair depends on the consideration of four factors:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole and
  • The effect of the use upon the potential market for or value of the copyrighted work.

Students, faculty and staff at colleges and universities sometimes believe that any use they make of a copyrighted work falls under fair-use, and doesn’t require the permission of the copyright holder, because they are associated with an educational institution. As you can see from the four factors above, that is not the case. In particular, if your use is not for educational purposes, and/or you have downloaded or shared the whole work (i.e. the whole movie, or whole song), and/or your doing so affects sales of that work or the market for licensing fees to use that work, it is highly unlikely that your use would be considered fair use. Put simply, downloading songs, movies, games, and software for your personal entertainment without explicit permission from the copyright owner is not fair use and is against the law.

If you wish to use copyrighted works for educational purposes, please visit the US Copyright Office for further information on whether and how your proposed use might be fair use under the copyright law, and on other circumstances in which you can lawfully use copyrighted material without permission from the copyright holder.

Can’t I just say I didn’t know it was illegal?

Pleading that you didn’t know about the copyright law will not protect you from a lawsuit. Moreover, with all of the news about file sharing and copyright issues on the news, and all of the copyright education that schools like Brescia are providing, it is increasingly difficult for network users to say that they had no idea that copyright law applied to file sharing.

It is your responsibility to be aware of and comply with the law. Brescia University strongly encourages users to educate themselves about the current state of copyright law as it applies to file sharing over the Internet, and to keep up to date on changes to copyright legislation. Brescia University provides network users with information on these issues here on this Web site.

Brescia University’s procedure in response to copyright notices

Brescia University does not actively search for instances of copyrighted infringement. However, we do respond to complaints about inappropriate use of the Brescia network. Copyright owners do actively search for copyright infringements of their works and send DMCA take-down notices to Brescia University.

Brescia University, as an educational institution, allows a short time for individuals to educate themselves in copyright law and to either take down the materials themselves or produce whatever documented permission they have to share the files.

Brescia University’s procedure in response to copyright notices, and user consequences of these actions, are outlined below.

What should I do if I receive a copyright infringement notice from the University?

All users of Brescia information technology resources are ultimately responsible for their own conduct and for responding to any notification received from a copyright owner. The University cannot advise you on the course of action that is in your best interest should you receive a copyright infringement notice. The University strongly recommends that, if you have any questions regarding such notices, you consult with legal counsel of your own choosing who is knowledgeable about copyright law.

The University reminds you that the generator of the copyright infringement notice does not receive any information about your identity from Brescia University without a court order. If you choose to contact the generator of the notice, you are identifying yourself to that generator.

 If this is your first copyright violation notice or Computer use violation:

1. You may be sent a “First Offense” email, or contacted by the Vice President/Dean of Student Development or by someone he delegates to do so. If asked, you will be given a copy of the complaint from the copyright holder, if applicable

2. Your dorm room internet access/network access is disabled until you meet with the Dean of Student Development or his delegate. The Dean will refer you to Judicial punishment according to the student handbook.

3. You may be asked to take the Copyright tutorial and quiz and sign the statement acknowledging your responsibilities of computer use to regain use of your network access.

If this is your second copyright violation notice or Computer Use policy violation or subsequent violations:

1. You may be sent a “Second Offense” email, or contacted by the Dean of Student development or his delegate. if asked you will be given a copy of the complaint from the copyright holder.

2. Your network / internet access is disabled until the judicial process is completed.

3. You are referred to the Dean of Students for referral to the judicial process. Sanctions may include fine, suspension, or permanent loss of network privileges.

4. Once judicial process is completed if allowed to regain access, copyright tutorial may be required to be taken and the quiz passed to gain access back.

How a network block affects your school work

Although your personal computer may be blocked from accessing the network because of a copyright infringement, your Brescia computing accounts are not disabled. You are still able to access Brescia technology using other resources such as the Computer Labs. While this may be an inconvenience, connecting your personal computer to the Brescia network is a privilege, not a right. Of course, your use of the computer labs must also comply with copyright law.

Your responsibilities as a computer user

When you accept computing accounts at Brescia University, you agree to use the University’s computing resources responsibly. A major part of responsible use is maintaining the security and confidentiality of your computer accounts and the information you store on them.

This agreement includes the following points:

  1. Your computer accounts, passwords, and other types of authorization are assigned to you alone. You should never share them with others.
  2. Protect your accounts. Log out when you’re finished using them.

If you allow others to access your accounts, you can be held responsible for their actions on the network. For example, if you allow a friend to use your computer and they download or distribute copyrighted material illegally, you can be held responsible because your computer is identified in the notice that is sent to us from the copyright holder.

You are also responsible for following all applicable Brescia University policies.

How do I avoid copyright infringement in file sharing?

  1. Ensure that your file sharing application is not set to share the files you have on your computer. If it is set to share files, ensure that you have explicit permission from the copyright holders for sharing all of the files accessible to this application.
  2. It is possible for your computer to continue sharing copyrighted material even after you’ve tried to uninstall your file sharing software. You can be held responsible for the file sharing activity of your computer, even if you are unaware of it. Scan your computer for viruses regularly. To be sure that the file sharing activity is ceased, it is best to completely reinstall the operating system on your computer.
  3. Ensure that the distributor of a file you are interested in downloading has permission from the copyright holder to distribute it.
  4. For your own protection, you should assume that you do not have permission to download or distribute a file unless you have proof to the contrary. Before you download a file, research if it is legal for you to do so. For example, check the Web sites of the copyright holder to see if they allow distribution of their materials in this manner.
  5. When you purchase music, movies, games, etc., read the license carefully to learn if you have permission to convert the material to other formats for your own use, and whether or not you can share the material with others.
  6. Keep up to date on the debate over intellectual property rights legislation, and ensure that your voice is heard by your local legislators if you have an opinion on current laws and proposed changes.
  7. Fair use only applies to specific situations. Fair use depends on balancing the four factors: the purpose, nature, amount and market effect of the use. Downloading or distributing songs, movies, software, and games for personal entertainment is NOT fair use.

What if I want to contest the notice?

Before contesting the notice, it is important to check whether the files in question actually are on your computer. If you don’t recognize the file names listed in the original notice from the copyright owner, and you believe an error has been made, please use your computers search files function to search your system for the file names.

If you have allowed anyone else to use your machine, they may have placed these files on your hard drive without your knowledge. It is also possible that your computer has been compromised, and that the files have been placed there by someone else who has gained unauthorized access to your computer. No matter how the files got there, the copyright owner has served notice that they must be taken down, and Brescia University incurs costs in doing so.

If you believe in good faith that the copyright owner made a mistake in identifying your IP address or the files that it claims were infringed, then in addition to completing the tutorial and quiz you will need to reply to the copyright owner and include the following:

State the reason you wish to contest the notice. For example, if you believe a mistake was made or that you have permission to use the material in the manner outlined in the complaint.

Explain why and provide any additional details to be considered.

Once we receive a complaint we begin a technical investigation. This includes examining the network traffic that was taking place from your computer at the time identified in the complaint to determine if the complaint is valid or not.