Message to Campus Administrators

August 12, 2003

Dear Colleagues:

As you are aware, the issue of illegal file-sharing of copyrighted digital files — including music, movies, books, and software — is receiving significant national attention, and there has been an increase in the notices to our campuses alleging unauthorized file-sharing over the University's networks. The University also has received subpoenas related to alleged copyright infringement, as well as requests for access to computer records. The national spotlight on the issue makes very real the possibility of legislative action to alter copyright law in ways that may not value the principle of "fair use." It is important that the University demonstrate unequivocally its respect for the rights of copyright holders. To this end, we have sent a memo to UC Chancellors encouraging them to issue letters to their communities reaffirming the University's commitment to copyright law, as well as explaining possible legal consequences of copyright violations.

The purpose of this letter is to reiterate and clarify to those of you who work directly with these issues some of the University's procedures for compliance with copyright law, and to urge you to seek creative ways to educate students, faculty, and staff about copyright and about their responsibilities as University network users.

As an educational institution, the University values academic freedom and by policy does not monitor the content of electronic communications or search for copyright violations occurring over its networks (UC Electronic Communications Policy). The University follows procedures in the Digital Millennium Copyright Act (DMCA) that enable it to abide by its policy of not monitoring content, to process claims of copyright infringement, and to retain a "safe harbor" from liability.

The DMCA did not change existing copyright law but created a procedural mechanism to insulate on-line service providers (OSPs) from liability for their subscribers' copyright infringement. The OSP is accorded non-liability if it follows the DMCA procedures and meets other qualifications. The University qualifies as an OSP under the terms of the DMCA, and in 1999 the Office of the President issued guidelines prepared by the Office of General Counsel to ensure compliance with the DMCA safe harbor provisions. This document, "Guidelines for Compliance with the Online Service Provider Provisions of the Digital Millennium Copyright Act," may be found on-line. The University chooses to benefit from the DMCA safe harbor provisions whenever possible.

Pertinent requirements for retaining safe harbor include the following:

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    • Streamline and simplify current DMCA processes wherever possible, while complying with UC's "Guidelines for Compliance," to ensure the ability to respond expeditiously to remove or disable access to allegedly infringing material.
    • Review campus policies for acceptable use of the housing and other campus networks. Do these policies clearly define allowable and non-allowable uses? Are the policies distributed broadly? Are they found easily on campus Web sites?
    • Promote and provide a prominent link to a UCOP site that discusses digital copyright protection: http://www.ucop.edu/information-technology-services/initiatives/. Efforts are also underway to provide a central UC website for all copyright information. This site will be publicized to the campuses as soon as it is operational.
    • Review the information about campus policies and practices listed on the UCOP digital copyright protection site. Are the appropriate campus Web pages listed? Should the campus revise the pages or develop new ones?
    • Publicize UC's policy on appropriate use of copyrighted material, the Policy and Guidelines on the Reproduction of Copyrighted Materials for Teaching and Research.
    • Distribute information at student, faculty, and staff orientations. This may be particularly helpful in the residence hall orientation, as the University provides these students with in-room connections.
    • Consider developing other methods of educating campus communities about copyright law and the appropriate use of the University's network resources.
  • 1. Removal of Claimed Infringing Material

    When an OSP receives a notice of claimed copyright infringement and the OSP "responds expeditiously to remove, or disable access to" the allegedly infringing material, the OSP will not be liable for the infringement. While the DMCA does not define "expeditiously," quick action should be taken, ideally within a matter of days.

    The DMCA does not require that the OSP make any inquiry into or reach any conclusion about the validity of the claim of infringement. Campuses should not monitor the activities of its online users for a variety of reasons, including the fact that the DMCA protections are available only to those OSPs that do not have actual knowledge that material or activity is infringing. Campuses may make inquiry into the legitimacy of the use once a notice of alleged infringement activity is received, but are not required to under the DMCA. We recognize that some cases may involve issues of fair use. In such instances, the campus will need to determine an appropriate course of action and should engage legal counsel.

    The DMCA requires either the removal of content or the disabling of access to that content. Some campuses have elected to block access to the network temporarily as a means of obtaining the alleged infringer's cooperation in the removal of the material. The UC Electronic Communications Policy does not prohibit this action. A campus that uses this procedure also should ensure that such action is allowed under any applicable campus policies or regulations.

    2. Activities Supporting Compliance with Copyright Law

    All the provisions of the DMCA, including the limitation of liability, apply to all OSPs, including educational institutions. In addition, there is a special provision further limiting the liability of nonprofit educational institutions when infringing activities are undertaken by a faculty member or a graduate student employed in a teaching or research capacity by the institution. To take advantage of this further limitation, the institution has an obligation to describe and promote compliance with copyright law. We suggest that campuses take the following actions to fulfill these obligations:

    3. Termination of Repeat Infringers

    To qualify for the safe harbor, an OSP must adopt, implement, and inform subscribers of a policy to terminate "in appropriate circumstances" the services of a repeat infringer. The University's policy appears in the Electronic Communications Policy Section III, "Allowable Use," E (http://www.ucop.edu/ucophome/policies/ec/) and should be communicated to faculty, staff, and students. It reads as follows: "In compliance with the Digital Millennium Copyright Act, the University reserves the right to suspend or terminate access to University electronic communications systems and services by any user who repeatedly violates copyright law."

    Neither the DMCA nor the University's Electronic Communications Policy define "repeat" infringer or "repeatedly." Both, however, refer to actual violations of copyright law (the DMCA refers to repeat "infringers," not simply allegations of infringement, and the University's policy refers to violations of law); therefore, the number of DMCA notices received does not in itself determine whether a user's access to the network should be terminated. The number of notices may, however, indicate that the campus should conduct an inquiry to determine whether the user's activities appear to be actually infringing. We suggest that if the campus has received more than one or two notices for the same individual, it should follow its campus' due process for judicial review and determination of sanctions.

Please contact University Counsel Mary MacDonald at (510) 987-9742 or via e-mail if you have any questions regarding the DMCA and its safe harbor provisions.

We recognize that addressing illegal file-sharing requires significant coordination among many units-residential hall administration, business affairs, student judicial affairs, information technology administration, etc. Nevertheless, we believe that the UC community can work as a whole to respect copyright law and at the same time preserve the freedom of expression and access to scholarly inquiry so critical to the University's mission.

For further information, please contact Yvonne Tevis, Executive Assistant in Information Resources and Communication at (510) 987-0638 or via e-mail. or Annik Hirshen, Policy and Legislative Coordinator in Student Academic Services at (510) 987-9210 or via e-mail.

Sincerely,

Julius Zelmanowitz
Acting Provost and Senior Vice President —
Academic Affairs
Joseph P. Mullinix
Senior Vice President —
Business and Finance