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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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September 29, 2004

God and MGM at Stanford

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Stanford's ominously-named "Information Security" wrote:

If you believe [the DMCA infringement] notice is mistaken, you have the right to provide a counter-notice. For information on what your rights are, see Section 512 of the Copyright Act. It is available at http://www.law.cornell.edu/uscode/17/512.html.

That code makes it clear that counter-notices are only relevant for "material ... that is removed, or to which access is disabled by the service provider". That is obviously not the case when one is simply notified of an allegation of infringement, so the counter-notice provision seems inapplicable.

Stanford respects the proprietary interests, including copyrights, others have in their original works, and expects the same of its faculty, employees, students and affiliates.

Does it? Stanford orgnized and publicized an orientation-week event ("Frosted Flicks") at which a "digital collage" combining a number of movie trailers and a song was shown. Did Stanford receive permission from each of the movie studios and production companies and record labels involved?

Stanford's CourseWare website provides supplemental material for class, including scanned versions of copyrighted books, thus distributing them to hundreds of students. Stanford is clearly aware of this since before one can download the work one must agree to a notice about copyrights. Did Stanford get permission from the authors and publishing companies involved?

It appears some Stanford dorms have televisions in the lobby which show pay networks like HBO, in front of which large groups congregate. Has Stanford gotten permission for such performances?

If, however, a user subsequently receives a second notice, his or her connection is immediately disabled and the user is merely copied on the Disconnect Request.

This seems like an unreasonable and unfair punishment, considering that a DMCA request contains no actual evidence of infringement and there are no sanctions for filing a false one. It is not hard to imagine this power being abused. But Stanford provides no checks on this power; indeed, it amplifies it by quickly disconnecting the user's Internet connection. What purpose does this serve?

You have no legal liability; you are protected by the DMCA. True, the DMCA does require you take some steps to stop repeat offenders, but it does not require such draconian tactics, merely the enforcement of "a policy that provides for the termination in appropriate circumstances of subscribers ... who are repeat infringers".

I thought Stanford wanted to inspire learning and creativity. As your own law professor Lawrence Lessig notes "creativity always builds on the past". Such a draconian "two complaints and you're out" policy hardly seems conducive to encouraging creativity.

Comments (5) + TrackBacks (0) | Category: IP Abuse


COMMENTS

1. joe on September 30, 2004 12:21 AM writes...

Also: those of us who are likely to get C&D's are likely to get more than one during our stay... that is to say, we tend to be the ones willing to push the limits of intellectual property protection and will, almost necessarily, receive more than two notices.

Permalink to Comment

2. alan on September 30, 2004 8:50 AM writes...

I used to work IT security enforcement at a Southern CA university. I think that if a student violates a rule more than once then he has decided that the rule does not apply to him. There were some infringements in which I disabled user accounts after a single infraction. Of course it depends on the severity of the offense. The latter cases (more severe) dealt with students that were "stalking" other students or sending threatening messages. Something like copyright infringement (ie. stealing) is a little less egregious. One offence could simply be an accident (although probably not). A second offence would require that the offender needs an "in-person" talk, as email admonishments do not seem to be effective. A nice way to get the offender to actually show up is to disable his account. You talk to him, hopefully he sees the error of his ways, then you re-enable his account. A third offense would then justify permanently disabling the user's account.


That said, your points regarding Stanford's possible copyright violation cannot be ignored. Personally, I think that unless the university has obtained permission to use those materials (which they most probably have not), then they should cease in its use immediately. It is like a parent, cigarette hanging out of his mouth, scolding a child for not smoking.

Permalink to Comment

3. Christopher Davis on September 30, 2004 12:51 PM writes...

Alan:

The problem with your "repeat offender" comment is that DMCA notices are not convictions, they are accusations.

There are multiple recorded incidences of DMCA notices for files which were not, and were clearly not, the material alleged to be infringed upon. (A copy of vgrind source is not a copy of the movie "Grind".)

Aaron's concern, which I share, is that mistaken or malicious DMCA notices can be used to perform a denial-of-service attack, and that there are no penalties for making these mistaken or malicious accusations.

Permalink to Comment

4. Darrin on September 30, 2004 7:51 PM writes...

There's another problem with it, too. In the case that Aaron points out of Standford violating copyrights, the violation has already stopped. So essentially, the system is saying that you can perform as many 1-time infringements as you'd like because each time you can just say that the infringement has stopped.

Permalink to Comment

5. Branko Collin on September 30, 2004 9:19 PM writes...

Might I build on Alan's excellent analysis of the problem, and suggest that if a system administrator incorrectly believes a DMCA take-down notice for the first time, he will receive a warning by e-mail, while for the second time, the university sysadmin's salary payments will be stopped? I am sure that will convince such an eager-beaver sysadmin to come have a nice chat with a student who is going to treat him like a moron.

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