A Copyfighter’s Musings

So, I’ve been having some wonderful email exchanges with the director of IT Security at Brown, who’s having to deal with the onslaught of notice-and-takedown requests.  Thoughts that have come out of it:

First, it’s good to know that someone incredibly reasonable is in charge of this at Brown. She made it clear that they don’t want to accidentally force someone to delete a legitimate file.  It also seemed like she was looking for a solution that didn’t involve a tech-lockdown, like shutting down all access to P2P, or monitoring all traffic.  Not all colleges are this lucky.

Second, she thought that the RIAA/MPAA were tracking downloads, not just sharing/uploading. (I had assumed this, too)  Again, anyone know if this is being done? Or whether it’s even possible technically speaking?

Third, I’ve begun thinking of what to say to colleges generally speaking about how to deal with this problem.  I’ve begun to come up with a list of things colleges should do/think about regarding 512:

1.  Don’t go further than the law. Don’t monitor your network, don’t shut off access to P2P programs.  If you appease the copyright holders now, they will only come back asking for more.  Otherwise, your academic freedom will be in danger.

2.  If you feel like the DMCA is putting an undue burden on you and your users and that the law should be changed, help the reform effort.  Try to ensure that the copyright holders have a high burden of proof (currently, copyright holders can go straight to the college with a mere “good faith belief”).  A higher standard of proof will make it less likely that copyright holders send you bogus complaints.  It will also be good for your users, in that it will restrain the abuse of the power 512 gives copyright holders – again, the impact of 512 on free speech and privacy is important. 

3.  Still, even a higher standard of proof is not necessarily going to change a college’s role in this.  (ASSUMPTION) Given that most of the use on P2P networks isn’t legitimate, you’re still going to have to deal with copyright holders’ requests. 

In part, reducing your burden will simply mean installing technical means to automate the notice and takedown (question: is this possible?).  There still must be some room for humans to monitor these requests, of course.  You have to make sure that this isn’t being abused.  An automated system is particularly prone to abuse because everyone in the world is a copyright holder. The easier you make it to file a request, the more people are going to send them, which leads to an increase in the potential for abuse.  Also, an automated system might be more susceptible to technological attacks (question: could people flood it with requests, like a Denial of Service attack?) Again, we can help reduce these abuses by reforming the DMCA to include a higher standard of proof and perhaps harsher, easier-to-attain penalties for people who make false accusations or try to attack  the system. 

Second, educate your users.  This doesn’t mean hold sessions that repeat that people have done something wrong or constantly sending out emails about file-sharing.  Make the information available, but don’t be surprised if people just throw it away. 

The real education will come in shutting off people’s access.  Don’t do it permanently unless there have been repeated abuses.  Even shutting it off for a short time will create an inconvenience that someone might not want to repeat.  Word of mouth travels on campus, and that will help deter some file-sharing.  Some, but not a lot.  Don’t expect wonders.

Third, educate your users as to their DEFENSES. In fact, remember your defenses. Alleged infringers and service providers know that they have a right to sue if they suffer damages from a false claim.  Again, restraining the abuse of notice-and-takedown will force copyright holders to be careful in their claims.

The DMCA 512 says:

(f) MISREPRESENTATIONS. -Any person who knowingly materially misrepresents under this section – (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Filed by Derek Slater at 8:57 am under General news
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