ResNet Symposium: Copyright, Colleges and the DMCA

In addition to running my PDS session in the morning, I also attended a PDS session in the afternoon.  Entitled “Copyright, Colleges and the DMCA,” it was taught by Jim Gibson, University of Richmond law professor and director their Intellectual Property Institute (IPI).  The IPI’s “What do you think?” video was very popular in last year’s document fair at the ResNet Symposium.

As copyright is a very broad topic, the session was limited in scope to those issues that ResNet professionals are likely to encounter; entire important areas of copyright such as fair use were omitted or covered only in the briefest sense.  The PDS began with a basic overview of copyright, including discussions of liability with a significant focus on secondary liability as it is the issue ResNet professionals are most likely to encounter.  The presumption is that institutions are unlikely to knowingly engage in copyright infringement.  Instead, ResNet professionals are likely to be dealing with copyright holders as they work to address the alleged infringement of their copyrights by students.

To this end, Gibson spent a significant amount of time discussing the safe harbors in the DMCA.  In particular, the “transitory communications” and “system storage” safe harbors were discussed in detail.  Gibson stressed that:

1. The DMCA “notice and takedown” process does not apply if the institution is acting as a “mere conduit” of network data.  By the letter of the law, we are not required to react to, follow up on, acknowledge, or comply with letters from copyright holders asserting our users are infringing on their copyrights if the alleged infringement is only occurring on our network (as opposed to occurring on our servers, referred to as “system storage”).  We are, however, required to keep track of repeat offenders as the DMCA requires us to “adopt, publicize, and reasonably implement a policy of terminating repeat infringers” (Gibson’s words, not directly from the DMCA).  Of course, we could also choose to ignore even that provision of the DMCA if we are willing to give up our “safe harbor” defense.
2. Safe harbor defenses only provide immunity to monetary damages; we may still be subject to injunctions e.g court orders to deny access to materials or users.
3. Even if we give up or do not meet safe harbor requirements, the copyright owner must still prove his or her case in court.  In other words, safe harbor is not the only defense available.  The other traditional defenses such as fair use are still potentially available.
4. Unless the network operator is acting as a mere conduit – a very big “unless!” – copyright owners can utilize the special provision in the DMCA to subpoena identifying information about alleged infringers.  In those cases where a network operator is acting as a mere conduit, copyright owners must file suit (John Doe suits) to file subpoenas.

Most of the questions asked seemed to be either requests for clarification or contrived examples seeking to better understand the complex legal issues presented and discussed.  That some of these are complex and confusingly similar likely contributes to our widespread ignorance of these laws and how we should be reacting to alleged infringement.  There was also widespread discussion of the shared opinion that colleges and universities are being disproportionately targeted by the RIAA, an opinion shared by Gibson.