From the issue dated November 30, 2001
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New Company Besieges Colleges With Notices About Copyright ViolationsInstitutions weigh legal issues and inconvenience of tracking down students who share filesBy SCOTT CARLSON College Park, Md. Daina Klimanis says she was never a big-time MP3 abuser -- she never had hundreds of songs
"I guess I had a pretty conservative view of music sharing," says Ms. Klimanis, a freshman at the University of Maryland here, adding that she had downloaded only songs she was thinking about buying. "I have a friend who is a musician, and he converted me to the artists' rights side of the argument." But even though she wasn't an MP3 fiend, Ms. Klimanis found a stern note from the university in her electronic mailbox last month: She had downloaded a song by the rock band Incubus only hours earlier, and she'd been busted. Ms. Klimanis was caught by NetPD, a London-based company that has begun using sophisticated technology to sniff out people who share copyrighted files and to send out letters of complaint to university and other officials, asking them to take file sharers off their networks. The service seems to be an effective new ally for the recording industry but a growing headache for colleges. Until this semester, most institutions processed only a handful of copyright-infringement cases involving students every year. Cases Are Piling Up At Saint Louis University, officials have received a dozen infringement notices since the beginning of September; in the past, they got only two or three a year. Cornell University has received up to 25 requests in the past two months, up from 15 or so in each of the previous years. And the University of Maryland at College Park, which never got more than 20 notices a year in the past, has received more than 100 since the semester's start -- all from NetPD. The office that investigates copyright-infringement cases is overwhelmed, and more cases are piling up. "I'd say there isn't a day that goes by without a NetPD-o-gram coming in with an increasing laundry list of violators on it," says Gerry Sneeringer, Maryland's network engineer, who usually receives the e-mail notices. Bowdoin College, Denison University, Iona College, and St. Mary's College of Maryland are just a few of the other institutions that have also gotten notices from NetPD. So far, it appears that NetPD is looking for infringements of the files of only two artists -- Michael Jackson and Incubus. But some college officials wonder whether they need to respond at all. College lawyers say that under the Digital Millennium Copyright Act, colleges may not be liable in file-sharing cases like these, because the current downloading technologies use campus networks merely as conduits to students' machines, over which the institutions have no control. Also, the officials say, NetPD's complaints don't follow rules set down by the copyright act, and NetPD's employees haven't responded to e-mail messages and telephone calls seeking clarification. Colleges have reacted differently to the complaints: Some are disciplining students, others are considering ignoring the notices. So far as is known, no NetPD notice has been followed by legal action. "Nobody knows who NetPD is," says Steven J. McDonald, the associate legal counsel at Ohio State University. When people on his staff try to call the company, "it's essentially been impossible to find a human being." Bruce Ward co-founded NetPD, which has its headquarters in London's pricey Mayfair district. As he explains it, NetPD is a highly automated operation, using specially designed software to scan various file-sharing services for copyrighted songs available for downloading. The company can identify copyrighted songs by downloading, say, an MP3 file with the title of a Metallica song and using the software to compare the file's sound with that of the actual Metallica song. "The software was designed to handle pops, cracks, skips, and all the wonderful things that degrade the quality of MP3 files and still identify the songs accurately," Mr. Ward says. However, he adds, the program might not be able to distinguish between a cover band's version of a Metallica song and the original. Once a suspect file is identified, NetPD can find other copies of the same track by looking for similar file names or by matching "digital signatures," the peculiar arrangement of bits in a file. Mr. Ward says the bulk of NetPD's business deals with song files, but the company also has software that can identify images. The company also pursues those who share video games and video files. An Automated Process When NetPD's programs or people find a possible copyright infringement, they use an automated process to identify a contact person at the violator's Internet-service provider and to fire off letters written or approved by NetPD's clients. Arrangements with those clients are kept secret. Mr. Ward says his company signs nondisclosure agreements with entertainment companies and so cannot offer details. On its Web site, NetPD lists Sony Music Entertainment and the Recording Industry Association of America among its clients. Officials at the latter group neither confirm nor deny a relationship with NetPD. Laurie Jakobsen, a Sony spokeswoman, says NetPD has worked for her company -- monitoring for MP3's of new songs by Michael Jackson and Incubus -- but will not elaborate. Mr. Ward says the letters sent to universities do not "invoke" the Digital Millennium Copyright Act, which says that once service providers receive proper notification of infringement, they must remove copyrighted material from their servers or block access to it. Rather, he says, the letters merely "mention" it. "We're not trying to send a letter saying, If you don't do this, we're going to sue you," Mr. Ward says. "We're trying to send a letter saying, This copyright infringement is occurring on your network. We would like to ask for your assistance in removing these files." Still, the language in one letter to the University of Maryland was direct: "You should understand that this letter constitutes notice to you that this site operator may be liable for the infringing activity occurring on your server. In addition, under the Digital Millennium Copyright Act, if you ignore this notice, you and/or your company may be liable for any resulting infringement." Missing Attributes College lawyers say there are a number of problems with NetPD's notices. Georgia K. Harper, the University of Texas System's top intellectual-property lawyer, says the notices do not point out that NetPD is an agent of the copyright holders and do not contain electronic signatures -- and both attributes, she says, are required by the copyright act. "When they blow those off, we as recipients are supposed to get in touch with them," Ms. Harper says. "Well, when you try to get in touch with them, nothing happens. They don't respond." Moreover, she says, it's not clear that peer-to-peer technology -- in which a file travels from one student's computer to another's, merely using a university network as a connection -- is covered by the copyright act. "In our case, the things they identified were not on our servers -- they are on computers that are connected to the Internet through our network," Ms. Harper says. "We believe that section of law doesn't even apply, that there is no requirement for us to do anything when we are simply a conduit, when we are simply providing connections through the Internet." But different institutions see the issue from different angles. With the new heat, or hassle, from the recording industry, some colleges are clamping down on file sharing like never before. Officials at the University of North Carolina at Asheville are considering strict punishments for students who are caught sharing copyrighted material. Asheville's proposal would cut off a student's network access for a couple of days after a first offense, and for about a week after a second. After three strikes, the student would lose network access for good. "We're getting tired of playing games with our students," says Mike Honeycutt, Asheville's information-center manager. Part of the problem, he says, is that an infringement letter will mention one song on a student's hard drive but ignore the hundreds of others stored there. "We're just trying to avoid visiting these kids 2, 3, or 10 times," he says, adding that the university gets a few NetPD requests a week. His peers at other universities "are just visiting these kids over and over again every time NetPD or someone else lodges a complaint -- the songs are removed one at a time. We just don't have the staff to keep doing this, even though we're a small campus." Officials at Wake Forest University follow up on NetPD notices, lecturing students about copyright law, charging them with violating university rules, and referring them to student judicial hearings. Jay Dominick, the assistant vice president for information systems there, says the notices are "close enough" to the letter of the law. At Wake Forest, he adds, many students use university-owned machines, which aren't covered by the exception outlined by Ms. Harper. It has been an unpleasant couple of months in Mr. Dominick's office. "It's taken a lot of my time, and the systems people have to track these people down and bring them in. And they are very traumatic events," he says. Some students, perhaps envisioning unlikely scenarios of expulsion or jail time, break down and bawl. "They assume that their world is coming to an end." 'Wish You Were Here' Here at College Park, Ms. Klimanis was far less worried when she got an e-mail message from the university telling her that she had been caught with a copy of Incubus's "Wish You Were Here" and summoning her for a meeting at the university's network-ethics office. "I would've been scared when I got that e-mail," she says, "but the same thing had happened to my roommate for the same song." At the meeting, she says, she got information about copyright law, a slap on the wrist, and tips on avoiding trouble in the future. A journalism major, Ms. Klimanis used the experience to write an article for the university newspaper and to tell her friends about NetPD. She says some friends have been scared straight, but many others simply take precautions -- they still download music but don't share it openly on the peer-to-peer networks. "It's like speeding," she says. "They all know they're going to break the speed limit. It's just a matter of knowing where the speed traps are." Ms. Klimanis also continues to download free music. She often shares files through Instant Messenger. But "I am definitely a lot more careful," she adds. "I think about the way I go about getting it right now." Rodney J. Petersen, the director of policy and planning in the university's information-technology office, says that College Park has an "ethical obligation" to contact students and explain the tenets of network ethics and copyright law. But, with more than 100 NetPD notices in hand already and more rolling in every day, it has been difficult to keep up. The network-ethics office, staffed by two part-time graduate-student employees, has to handle cases of hacking, Internet harassment, and student spamming, in addition to the NetPD notices. Mr. Petersen, a lawyer, says he has had misgivings about NetPD all along, and cites the legal inconsistencies of NetPD's notices, its lack of response to e-mail and phone calls, and the possibility that the university has no legal obligation in these matters. People in his office are beginning to ask, Why follow up? Questioning Intent "That's a question that we're asking ourselves now -- given the lack of clarity and credibility," he says. "It certainly makes you question their intent and wonder how far you have to go to appease their interests." He says the network-ethics staff members value the time they can spend explaining copyright law to students in person. That message is often lost or ignored in the handouts students get during orientation. But as more NetPD complaints pour in, the office might spend less time talking to students directly -- or might ignore the notices altogether. Mr. Ward, of NetPD, says: "We understand the common issues that people have with our notifications, and we are trying to address those, but it is not going to happen overnight." He recently joined Unisog, an e-mail list that deals with college-network security, in an attempt to communicate with college officials. Recently on that list, he announced that the company was working out some techniques for electronic signatures. Mr. Ward has a similar reply for complaints about the notices' demands. If college officials "feel that the content of the letter is not acceptable, then they should contact us" by e-mail, he says. NetPD gets "thousands" of messages per week. "I'll admit, not everyone who replies to our messages gets a response," he says. "In some instances, we don't get to it." As for the nuances of the Digital Millennium Copyright Act, Mr. Ward says: "There's a lot of disagreement among various lawyers about what the DMCA says and doesn't say. We are sending notifications out with the hope that universities, businesses, and ISP's will cooperate and remove infringing content." "We're simply requesting that people work with us to stop infringing, and there are benefits to the university to stopping infringement," he adds. "Forgetting the DMCA, there are valid reasons for universities not to spend all of the students' tuition on bandwidth." WHAT NETPD TOLD ONE UNIVERSITY The following letter was sent by NetPD to officials at the University of Maryland at College Park. The IP addresses, which can identify individual students' computers, have been blocked out by Maryland administrators to protect the students' privacy. Mon, 22 Oct 2001 19:26 +0100 http://chronicle.com Section: Information Technology Page: A29
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Copyright © 2001 by The Chronicle of Higher Education