Answers to our most Frequently Asked Questions about file sharing
- What is illegal file sharing?
- Isn't sending my friend a music file from a CD I already own just like loaning her the physical CD?
- What is the DMCA?
- What happens if I am caught sharing copyright protected files illegally?
- I didn't know that what I was doing could be illegal. Am I off the hook?
- What if I am wrongly accused of illegal file sharing?
- Am I really in danger? I'm just a little guy.
- I've shared hundreds of songs and they've never come after me. Why should I worry now?
- The record companies have charged too much for CD's for too long. They need to learn the new realities of on-line music. Why should I be forced to pay for music and movies that I can get for free?
What is illegal file sharing?
Though trading of copyrighted music, movies, games and software over the Internet has become commonplace using file-sharing programs such as KaZaa, Gnutella or Grokster, it is often not legal to do so. Most of these types of material are copyrighted, and obtaining or offering such material in violation of the US copyright law may be punishable with civil and criminal penalties including prison time and monetary damages. Several copyright holders employ sophisticated systems that can detect copies of songs, movies and software owned by them that are offered for downloading by individual computers attached to the Internet. When copyright holders resort to legal action against infringers detected here at St. Mary's, the person responsible for the copyright violation will be held individually liable. In most instances, the College itself will not be considered a liable party, as long as it complies with the Digital Millennium Copyright Act (DMCA). However, that exemption from liability does not extend to users on the SMC network who are engaged in illegal file sharing, and there is little the College is able to do to protect individuals using the SMC network who are identified as copyright infringers from legal action by the copyright holders.
Loaning someone your CD or even selling (but not renting) it is not illegal since no additional copies are being made. However, when you send a music file to someone else, you retain your copy and an additional copy is created. This copying may violate the exclusive rights of copyright holders.
The Digital Millennium Copyright Act, signed into law on October 28, 1998, amended the U.S. copyright law to, among other things, provide limitations for service provider liability relating to online material. Title II of the DMCA grants what is called a "safe harbor" to service providers that limits their liability to copyright holders for material controlled by a user on the system the service provider operates, as long as the procedures outlined in the law are followed. The College in providing computers, storage, or network connection is a service provider. A College employee, student or guest is a user. To qualify for liability protection, the College is required to have a policy under which the computer accounts of users will be terminated if they infringe on the copyright works of others. For more information on this legislation, see http://lcweb.loc.gov/copyright/legislation/dmca.pdf and http://www.educause.edu/issues/dmca.html. Alternative views can be found on-line at http://antidmca.org/ and http://chillingeffects.org/piracy/.
The College must follow the procedures listed in the DMCA, the Saint Mary's Technology Use Policy, and provisions of the Student, Faculty and Staff Handbooks in handling the complaint. These procedures are outlined below:
Notice to the Computer User and Removal of Information: The College will promptly disconnect the user from the network until there is a voluntary removal of the allegedly infringing material. Reconnection will not occur until the College receives one of two written communications from the user. Each is described below:
- Letter of Removal from computer user: The user sends a written letter to the College warranting and representing in a clear statement that the material has been voluntarily removed from the user's computer or equipment and is no longer accessible through the College's network. The written confirmation must list all the files or material that have been removed. The College will restore access to the network after receiving written confirmation of the removal of the material.
- Counter notice from computer user: Under the DMCA, the computer account holder/user has the right to send a counter notice, indicating that he/she is not in violation of the copyright holder's rights. The counter notice process allows for two types of responses:1) that the copyright holder has made a mistake and the user's use of the material is not infringing (e.g., the user has a license, the material is not copyrighted, the material is public domain, etc), or 2) that the copyright holder has misidentified the material and the material identified is something other than the material believed to be by the copyright holder. If the computer account holder/user insists upon reconnection to the network without the removal of the material, then he/she must send the College a written counter notice in compliance with the counter notice provision of the DMCA. This counter notice will be forwarded to the copyright holder or its agent, and access to the network will be restored within 14 days of the College's receipt of the counter notice.
- College Disciplinary Action: The use of Saint Mary's computing resources in violation of copyright law and the operation of an unauthorized file server on ResNet are also violations of the Saint Mary's Technology Use Policy and may result in other disciplinary action by the College pursuant to any applicable College policy.
- Final College Action: If access to the College network has been disabled and thereafter the allegedly infringing material has been removed and the Director for IT Services has received a written guarantee from the user, the College will restore access to the network. If the user instead elects to send a counter notice, the College will restore access in no more than 14 business days from receipt of the counter notice, unless the copyright owner first notifies the College that they have filed a court action to restrain the user from the infringing activity that was the subject of the original notice. The Saint Mary's Technology Use Policy is available on-line at: http://www.stmarys-ca.edu/about-smc/provost/tac/docs/TechnologyUsePolicy.pdf. The Saint Mary's Student Handbook is available on-line at http://smcnet.stmarys-ca.edu/student_life/handbook/.
- Further Consequences: The copyright holders can take further action in pursuit of damages. Under the DMCA, the copyright holders can subpoena service providers for the names and addresses of persons who are the subjects of the above outlined notice/counter-notice procedure, and a recently decided court case has confirmed their right to that information (see http://news.com.com/2100-1025-1013154.html). The copyright holders can then sue the infringer in Federal Court for each copyright law violation.
No. Copyright infringement actions do not require that you actually knew that the files were protected by copyright or that your use of the files violated federal law. Claims of ignorance cannot be used as a defense to direct copyright infringement.
Mistakes have been made in the past. If this happens to you, then you should indicate that you are not in violation of the DMCA and the reason you believe so in the counter notice you send in response to a DMCA action (see "Counter notice from computer user" above). Your notice will then be sent on to the copyright holder who alleged the copyright infringement. No College disciplinary action related to the disputed allegation of copyright infringement will be taken until the issue is resolved, if appropriate.
Some believe that "recreational file-sharing" is unlikely to be noticed. This is not the case. The reality is that copyright holders are significantly intensifying enforcement using automated scanning software to identify infringements, no matter how small. The Recording Industry Association of America has been filing lawsuits against students and others since September of 2003. Settlements with the individual students have ranged from $12,000 to $17,000.
In June of 2003, the Recording Industry Association of America announced that it will gather evidence to prepare lawsuits against individuals who offer "substantial amounts" of copyrighted music over networks. They have carried through on that threat, and have filed hundreds of lawsuits during the last year. If you are running file sharing software and have copyrighted music on your computer, you are likely "offering" that music over the Internet, whether you know it or not. This could well serve as a basis for a copyright infringement lawsuit against you.
Copyright law provides incentives to creative people so that they will create and share their work. The US Constitution protects the property rights of those individuals. One of the incentives for creating software, music, literature and other works is being able to reap the financial benefits as the creator. Illegitimate distribution of copies may prevent the copyright holder from benefiting from the sale of legitimate copies of the product.