educational institution liability
How do educational institutions get involved in file sharing?
In the RIAA’s fight to eliminate online piracy of music files, it has targeted college students, serving at least ten universities with subpoenas seeking the identity of the suspected infringers on their networks. "The vast majority of students would never shoplift a CD at a record store but think nothing of accessing the same CD for free online." With the illegal activities of students being targeted by copyright holders, the possibility exists that educational institutions might face either contributory or vicarious liability for those copyright infringements. Often, educational institutions provide the Internet access, computers, and other technological devises (PDAs, etc) used to engage in file sharing. Furthermore, computer programs make it easy for individuals in these institutions to find the fastest available connections and search files belonging to others in the institution, and file sharing programs are easily uploaded on to educational networks.
When is an educational institution vicariously liable for the actions of their users?
In order to be subject to any potential liability, someone must use university resources to engage in direct copyright infringement. Educational institutions are potentially liable for the actions of their users under the theories of contributory liability and vicarious liability. For more on contributory and vicarious copyright infringement, click here.
In order to be held liable for contributory copyright infringement, the educational institution must know (or have reason to know) about the copyright infringement and induce, cause or materially contribute to the infringement. Knowledge of copyright infringement can be derived from an RIAA letter notifying the institution of an infringement, self-monitoring of the institution’s network or the understanding that copyright infringement via file-sharing is running rampant, particularly on college campuses (and thus the institution should have known). The second prong of the test can be met if the educational institution maintains a database of the infringing material or has the ability to terminate user's access to the Internet. Case law would suggest that educational institutions could be liable for contributory copyright infringement for providing Internet access to students, faculty, and staff.
In order to be held liable for vicarious copyright infringement, the educational institution must have the ability and right to supervise users and have a direct financial interest in the infringing activity. While educational institutions might have the right to monitor users, it is harder to make an argument that the institution derives some financial benefit from the infringement. A determination of vicarious infringement would turn on the particular facts in any given case.
Statutory Limitations on Liability for Educational Institutions: Educational Institutions as Service Providers
The DMCA limits the liability of service providers in regards to online materials, and is intended to encourage service providers to help enforce copyrights. Service providers that engage in certain activities: (1) transitory (mere conduit) digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools are subject to limited liability under the DMCA. A service provider is defined as any party that provides “online service or network access” , so educational institutions offering network or Internet access to their students, faculty or staff are included within the scope of the act. The act protects service providers from monetary, injunctive or other equitable relief for copyright infringement so long as the provider meets certain provisions within the Act.
|•||Educational institutions must adopt and notify users of termination policy for repeat copyright infringement and accommodate and not interfere with technical measures used by copyright holders to track infringers.|
|•||The institutions must designate a copyright agent to receive notices of infringement.|
|•||The institutions must, upon notice, remove or disable access to infringing material. This is often referred to as the notice and takedown provision. The notice and take down provision does not apply when the university is merely a conduit for information.|
|•||The institution must not have known or been aware of facts making the infringement apparent.|
|•||And, the institutions must not derive any financial benefit from the copyright infringement.|
If all of these provisions are met, the educational institution will be able to take advantage of the limited liability provisions of the DMCA.
Limited Liability for Actions of Employees of Nonprofit Educational Institutions
The DMCA limits the liability of nonprofit educational institutions when an employee (faculty member or graduate student) uses the institutions’ resources to obtain copyrighted material. The institutions’ liability is limited so long as
|•||The employee’s copyright infringement does not involve access to required or recommended instructional materials for a course taught at the institutions within the preceding 3-year period,|
|•||The institution has not received more than two notifications regarding the copyright infringement of that employee within the past 3 year period, and|
|•||The institution distributes information to all users regarding its compliance with all copyright laws.|
How do educational institutions avoid liability?
It is vital for educational institutions to develop policies stating that that institution abides by all copyright laws. There are two possible ways educational institutions can deal with liability issues under the DMCA. First, the institutions can rely on the DMCA provision for limiting liability for service providers by abiding by all required provisions in the statute. Second, the institution can respond to “notice and takedown” letters sent by copyright owners to notify the institution of an alleged infringement occurring through the use of its network.
Cornell University chose the latter of the two options and deals with a “notice and takedown” letter that block the alleged infringer's access to the Internet and notify the student or employee that he or she must:
|•||Cease and Desist file sharing of copyrighted material for which the individual doesn’t hold the copyright or have the permission of the copyright holder or|
|•||Remedy any security breach that has allowed unintentional file sharing of copyrighted material or|
|•||File a counter-notice, if the individual has a right to share the material.|
Cornell has had success with this program.
Another issue educational institutions have to deal with is the subpoena power of the DMCA. The institutions have to decide how to handle subpoenas demanding identities of infringers. Educational institutions have to comply with the Federal Education Rights and Privacy Act with any student information they disclose in response to a subpoena.
Creative Solutions Aimed at Preventing Copyright Infringement
American University is one of many schools now including peer-to-peer network policies and warnings in freshman orientation sessions. Schools including Harvard, Yale, and the University of North Carolina have posted peer-to-peer policies online. University of California, Berkley requires students to attend a lesson on illegal file sharing before allowing them access to network accounts. Berkley also has a five-gigabyte upload/download limit and violation of the limit three times may result in a loss of Internet access. Carnegie Mellon University conducts random, unannounced file searches, and if it discovers students hosting file sharing, it cancels Internet access in the rooms of those students.
Many educational institutions are offering legal music downloading services to their students. These programs vary in which services and how many services are offered. Most often, the subscription costs for these services are included in student fees.
MIT has taken a different approach with the creation of LAMP. LAMP makes use of an electronic music library. Users can select a song or album off the website and the selection is played via closed circuit television. The program utilizes blanket licenses, like radio, and does not allow users to download or copy the songs. This service allows on demand listening without copyright violations. The creators of LAMP plan to make the program freely accessible to others, including educational institutions. The program costs about $35,000 to set up and $.60 per student per year to maintain.