Brenau University Compliance with the Higher Education Opportunity Act (HEOA) Peer-to-Peer File Sharing Requirements

H.R 4137, the Higher Education Opportunity Act (HEOA), is a reauthorization of the Higher Education Act.  It includes provisions that are designed to reduce the illegal uploading and downloading of copyrighted works through peer-to-peer (P2P) file sharing. These provisions include requirements that:

  • Institutions make an annual disclosure that informs students that the illegal distribution of copyrighted materials may subject them to criminal and civil penalties and describes the steps that institutions will take to detect and punish illegal distribution of copyrighted materials.
  • Institutions certify to the Secretary of Education that they have developed plans to “effectively combat” the unauthorized distribution of copyrighted material.
  • Institutions, “to the extent practicable,” offer alternatives to illegal file sharing.
  • Institutions identify procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials.

Digital Millennium Copyright Act

In 1998, the U.S. Congress passed into law the Digital Millennium Copyright Act (DMCA), which implements two 1996 World Intellectual Property Organization (WIPO) treaties and addresses a number of significant copyright-related issues.

Title II of the DMCA establishes certain requirements for Online Service Providers (OSP) concerning copyright infringement violations including: 1) registration of an agent with the U.S. Copyright Office; 2) development and posting of updated copyright policies; 3) adoption of “notice and takedown” procedures for alleged copyright infringing materials; and 4) accommodation and non-interference with standard technical measures utilized by copyright owners to identify and protect their works. Title II, Section 512 addresses the issue of erroneous notifications from copyright holders by establishing certain safeguards. Individuals are given the opportunity to respond to a copyright infringement notice and takedown by filing a counter notification.

The DMCA specifies that all notices of copyright infringement from copyright holders be in writing and be in the proper form of a DMCA notice. Under DMCA, Brenau University is considered an OSP for its students, faculty and staff. DMCA requires the university to expeditiously respond to complaints it receives of copyright infringements. When notified, under penalty of perjury, by a copyright owner of infringing materials on a computer attached to the university network, Brenau University will take immediate action to block network access to the computer and notify the owner of the computer. Network access will be restored after the infringing material is removed from the computer or within 14 days after receiving a proper counter-notification, unless the copyright owner files an action seeking a court order against the computer owner. A second violation will result in loss of access to the University network for three years. Additionally, as an OSP, Brenau University may be served with a subpoena for the identity of the owner of a computer determined to contain infringing materials.  Brenau University will comply with a lawfully issued subpoena that meets the requirements of the DMCA. Violation of the DMCA can result in severe civil or criminal penalties.

Action taken by the University to remedy and/or discipline an individual for a copyright violation does not preclude the copyright holder and/or the authorities from seeking civil legal remedies and/or criminal prosecution for copyright infringement. Federal law specifies that injunctions and orders to impound infringing materials may be entered by federal courts. Violators are subject to civil liability for litigation costs and attorney fees. Violators are also subject to liability for either the profits they earned from the infringement plus the actual damages suffered by the copyright owner, or statutory damages of $750 to $30,000 for each work infringed. Where the court finds that the infringement was willful, civil statutory damages may be increased to up to $150,000. Under certain circumstances, violators can also face criminal penalties up to $2,500, and/or imprisonment for up to 10 years (17 U.S.C. 501-511; 18 U.S.C. 2319). Additionally, anyone who helps or makes it possible for another person to infringe upon a copyright may also be held liable under a legal doctrine known as “contributory infringement (Sony Corp. v. Universal Studios, 464 U.S. 417, 435, 104 S.Ct. 774, 785, 78 L.Ed.2d 574 (1984)).”

By far the greatest cause of copyright infringements is the use of peer-to-peer (P2P) file sharing services, such as Gnutella and BitTorrent, for sharing music and movies. Although the use of P2P file sharing is not illegal in and of itself, using it to share copyright protected files is, unless the person doing the sharing has express permission from the copyright owner. Generally, the P2P file sharing programs install the software and automatically share downloaded files with other Internet users. Copyright owners and their agents use automated methods to actively scan the Internet to detect computers that are illegally sharing copyrighted files.

A statutory limitation to the Copyright Act of importance to nonprofit educational institutions is Section 107, the doctrine of “fair use.” Under this doctrine, limited use of copyrighted material is allowed without prior permission of the copyright owner if certain criteria are met. Section 107 lists purposes for which the reproduction of a particular work may be considered “fair,” and presents factors to be considered in determining whether or not a particular use is fair.

Annual Disclosure

Consistent with our educational principles, we view education as the most important element in combating illegal sharing of copyrighted materials at Brenau. We use a wide variety of methods to inform our community about the law and Brenau’s response to copyright infringement claims:

  • In order to use college computing resources, all members of the Brenau Community will comply with a Computer User Agreement that includes a section on copyright compliance.
  • Computing support staff are regularly trained on the university position with respect to copyright issues.
  • Brenau’s policies and procedures concerning the Digital Millennium Copyright Act and our response to infringement claims are published on Brenau’s Intranet web site (Brenau policy database).
  • Periodically, all university employees and students will receive email from the University regarding copyright infringement and related issues.  At this time the information is included in the monthly Registrar’s newsletter.

Plans to “Effectively Combat” the Unauthorized Distribution of Copyrighted Material

We currently employ bandwidth-shaping technology to prioritize network traffic. We limit the amount of bandwidth available to P2P applications and we have deployed filtering technologies to prevent access to P2P application sites.

Blocked users are reminded that P2P file sharing is illegal and against Brenau’s acceptable use policies. If we observe continued high bandwidth consumption we will contact such users to ensure that their bandwidth consumption is the result of legal purposes only.

Respect for copyright and intellectual property are important aspects of academic integrity. You can learn how to use other people’s materials appropriately at the Brenau Course Reserves Web site.

Alternatives to Illegal File Sharing

Educause maintains a comprehensive list of Legal Downloading Resources . Members of the Brenau community are encouraged to take advantage of these legitimate sources of digital content.

Reviewing Effectiveness

Compared to our peers, Brenau receives remarkably few peer to peer file sharing takedown notices. We will continue to monitor these notices to watch for unexpected increases that would require additional measures.