Digital Millenium Copyright Act
I'm Okay So Long As I'm Not Charging For What I Posted On My Site, Right?

by Jan Carmikle

"Anastasia" downloads songs from her favorite CDs to her Web site so her fellow fans can share in the pleasure without having to shell out $17. ... In a chatroom, "Bertrand" writes, "Come to my page and you'll find a link to The Phantom Menace." ... "Carlton" sets up a share-the-software site where one who contributes to the collection can download a piece of software, allowing everyone to keep their ever-rising software costs down. ... Hey, if they're not charging, there's no copyright violation and no one cares, right?

Wrong.

Copyright violations similar to these have occurred at UCD in the last year. We know about them only because someone did care and complained to campus administrators, because UCD was the owner/operator of the servers on which the infringing sites reside. It's not only the big companies like LucasFilm who hire people to surf the Internet looking for violations such as these -- small companies are also now devoting resources to protect their intellectual property rights, such as copyrights.

What is a copyright and who owns it?
A copyright is an intangible personal property right, specifically the right to reproduce, distribute, make new versions (known as "derivative works"), perform, or display the copyrighted material, to permit others to do so (for free or for a fee), and to choose not to do or allow any of those actions. A copyright can be given away, sold, or kept until it expires. A copyright might be very valuable (don't you wish you had the copyright to Microsoft software, the lyrics to "Candle in the Wind," or the latest best-selling novel?) or have no value to anyone (the rough draft of my Psych 1 term paper, for instance).

By virtue of its nature as a teaching and research institution, UC Davis is awash in copyrights, both those belonging to others and its own. The University uses the copyrighted materials of others (textbooks, readers, or software, for example); researchers use them to create new copyrighted materials, such as journal articles; and they are created in every class, lab, and office. Each time someone "fixes an original expression in a tangible medium," a copyright is born. That's all it takes. You don't have to register with the Copyright Office, and you don't have to publish the work -- those are old rules. It's original, and you write it down somewhere (even on your computer), or tape, draw, or photograph it. You don't even have to put the © symbol with your name and the year most of the time (although it's a good idea).

How to find answers to copyright questions The Business Contracts Office (428 Mrak Hall, 752-2426, Web site including "Copyright Resources" page to debut soon) is always glad to help with general information or with an analysis of a particular situation. For the complete, official campus policy and procedures on copyrights, you can also read the UCD Policy and Procedure Manual, sections 210-70 to 210-74. You may also want to review the Computer and Network Acceptable Use Policy.

And who owns the copyright? Usually the person who made the "original expression" although there are exceptions, of course. Work done at someone's request and for a fee can be a "work made for hire" that belongs to the payor, so long as that is agreed to in writing, in advance. Or work might be in the "public domain," in which case it belongs to no one, either because that was the author's desire and it was expressly stated so or because the work is so old (no less than 50 years depending on the type of material and when it was authored) it has automatically passed into the public domain. Unless material is in the public domain, however, the copyright is just as much someone's personal property as a book or diamond ring. With or without monetary value, it belongs to the owner and cannot be reproduced, distributed, revised, performed, or displayed without permission. Violating that right is known as an "infringement," and is a federal offense.

Who cares who owns the copyright?
The owner may or may not care. The only way to know is to ask the owner. But if the owner will never find out that you made a photocopy of his/her article to take home to read instead of spending an hour in the library, why should you bother asking? Because it's a federal offense if you don't. It has nothing to do with the value of the material.

Obviously the Internet didn't exist when the original federal copyright laws were written. These laws state simply that if you make a copy of someone's copyrighted work without the owner's permission, you are infringing on the copyright. But when the Internet came along, the courts took the old law and the definition of "copy" and found that every computer involved in sending infringing material from the server where it is based to the requesting computer is making a new copy, and even linking to infringing material is an infringement. This means that every Internet Service Provider (ISP), likely including universities such as UCD which make services available to their faculty, staff, and students, is violating a copyright not only every time a user stores infringing material, but also every time some other computer routes infringing material!

So if a copyright owner, such as a record company, wants to stop "Anastasia" from downloading its music to rewriteable CDs, it would at a minimum also have to stop the ISP (in this case UCD). It wouldn't take long for either the ISPs to go out of business to avoid being sued, ending a large part of the Internet economy, or for the copyright owners to give up trying to reach the real infringers, making copyrights worthless. We'd lose our professional writers and other artists, and ... gasp ... software developers, since they could no longer make a living from the value of their copyrights. Neither scenario sounded too good for Internet users, so Congress went to work.

The solution is the Digital Millenium Copyright Act of 1998 (DMCA) which, in addition to providing copyright protection to the design of boat hulls in Title V, contains Title II -- the Online Copyright Infringement Liability Limitation Act. Title II includes a provision that says, essentially, that if an ISP agrees to play postmaster by delivering allegations of copyright infringement to the poster and expeditiously blocks or removes access to the allegedly infringing material, it will not be held personally responsible for the infringement or for removing the infringing material from its server. The University of California wholeheartedly embraces this sensible (although not perfect) "safe harbor" protection. By meeting the requirements of the DMCA, the University is no longer responsible for infringing materials posted on its computers -- the person who posted them is.

UCD's DMCA procedures
Let's look at a sample incident to see how UCD's new DMCA procedures work. First, the person who owns the copyright to some intellectual property such as a song, or his/her authorized agent, (we'll call him/her the Notifier) finds his/her property published on a Web site without permission. The Notifier may or may not be able to identify who posted the material (call him/her the Poster) but can determine that the site is on a UCD server. The Notifier finds out who is the registered agent for receiving notifications of alleged copyright infringement, either from the various campus Web sites identifying the agent or from the US Copyright Office's list (see http://www.loc.gov/copyright/onlinsp/list/). For the Davis campus, the registered agent is Jo Clare Peterman, Business Contracts Officer in the Office of the Vice Chancellor-Administration.

Armed with the identity of the agent, the Notifier sends a written Notification, under penalty of perjury, with information including the identification of the copyrighted work, identification that is claimed to be infringing, and information reasonably sufficient to permit UCD to locate the material such as the site address, date and time the site was accessed, the Notifier's contact information, and a statement that the use is not authorized. The penalty of perjury statement that the use is not authorized by the owner or authorized agent is intended to weed out all but the most likely to be true allegations. After all, since only the owner or authorized agent can license a use, if he/she honestly believes the use is unauthorized, it probably is. (And so far every Notification UCD has received has been for a use that was, by admission of the Poster, unauthorized.)

UCD, upon receipt of this Notice, must "expeditiously" remove or block access to the material. This is easily accomplished using the information provided in the Notification. Once the identity of the Poster is known, an official note of the allegation and the University's imminent action to remove or block access to the material is sent to the Poster and to other appropriate campus officials, which may include the Provost, the Vice Chancellor of Human Resources, the Vice Chancellor of Student Affairs, Student Judicial Affairs, and the Director of Student Housing. The DMCA requires that the ISP have policies and procedures for terminating privileges of infringers. Remember the Computer and Network Acceptable Use Policy to which you had to agree to get computer privileges? There it was -- anyone violating local, state or federal laws may lose his/her computer privileges and be referred to appropriate University and/or law enforcement authorities which, for federal offenses, is the FBI. (The FBI has been in touch with us about an infringement already. Really.) Next, UCD removes or blocks access to the site, depending on where it is. As hardware and personnel resources are identified, how this is done will vary. Currently ports are disconnected for ResNet users found in violation of the policies. In departments, IT works with staff to remove the specific material. This step is usually completed within hours of receiving the Notification.

Business Contracts lets the Notifier know that access to the material has been blocked. The Notifier usually responds by requesting the name of the individual. Since the DMCA does not require that UCD provide this information unless subpoenaed, UCD refuses to provide the name because it is either a confidential personnel matter or a student privacy matter protected under the Family Educational Rights and Privacy Act (FERPA). But if the Notifier cares enough to get a subpoena, which is easily justified under the DMCA, UCD cannot protect the student's identity under FERPA.

Then UCD waits to see if the Poster files a DMCA Counternotification essentially saying, "No, I'm not infringing." (No one has made this claim yet because, quite frankly, every Poster has admitted he/she was violating a copyright. All believed while they were doing it that they weren't selling the material and were therefore not guilty, or just didn't believe that anyone who cared would find out.) However, if Business Contracts receives a Counternotification from the Poster, it will be forwarded to the Notifier. Ten to 14 days later, IT will put the material back online. At that point, the Notifier and the Poster would know each other and would have to fight it out themselves because UCD would be done with its responsibilities under the DMCA. If UCD plays postmaster, it's protected from liability for both the posting and the removal.

UCD's investigation
Of course, that's not the end of the matter at UCD, just the end of the DMCA-controlled part. Student Judicial Affairs, Human Resources, or the Provost will take action under normal campus investigative procedures to determine if there has been an infringement, and if so, which University policies were violated and what the appropriate action should be. This is standard operating procedure. For a true story of one student's experience resulting from an Internet copyright infringement, see Now Hear This: Uploaders, Downloaders Need to Mind their Ps & Qs When It Comes to MP3s in the May 1999 IT Times (well worth reading).

What if I were just doing my job?
Special rules in the DMCA relate specifically to faculty members or graduate students who are performing a teaching or research function. The University is protected from liability only so long as:

• The infringing activities do not involve providing online access to course-recommended or required materials of the last three years,
• The University has received no more than two notifications in the past three years regarding that faculty member or graduate student, and
• The University provides all computer users with informational materials describing and promoting compliance with copyright law. (Yes, it does.)

This means the University will be paying special attention to Notifications that fall within these special rules and will work with the faculty or graduate student to ensure that the maximum of two Notifications is not exceeded.

If you are a staff member who is acting in the course and scope of your University employment when you post the allegedly infringing material, to the extent that you are directly instructed to post the material, the University will assist with necessary responses. Because copyrights are so central to university life, UCD offers many resources to help the University community navigate the sometimes murky waters of the law.

The bottom line? There is no need for you to take a chance with your computer privileges. If in doubt, call the Business Contracts Office at 752-2426.

Jan Carmikle is Principal Administrative Analyst in the Business Contracts Office.