Imagine you are accused of sharing copyrighted material with
other people. Now there are three possibilities: Your name is
subpoenaed and you land in federal court, UCLA decides to totally
block all peer-to-peer networks, or UCLA briefly suspends your
Internet access and makes you sign a letter saying you agree not to
illegally trade files.
Which would you prefer? If you like the idea of a warning and a
brief time out, you are in luck. Though UCLA isn’t playing
games when it comes to copyright infringement on its campus network
““ and its strict policy might be frustrating if you want to
use peer-to-peer networking ““ the university is protecting
itself from liability while doing a lot to protect student privacy.
It seems like a fair deal.
The Digital Millennium Copyright Act of 1998 requires UCLA to
“adopt and reasonably implement a policy of terminating in
appropriate circumstances the accounts of subscribers who are
repeat infringers; and … accommodate and not interfere with
“˜standard technical measures'” designed to
prevent and monitor piracy.
In other words, UCLA is required to cooperate with copyright
owners to identify and stop people from sharing illegal files.
According to Constitutional law Professor Eugene Volokh, UCLA
“could be liable if they are on notice … and they
don’t do anything to stop it.”
In order to comply with the DMCA, UCLA has created a system that
automatically receives copyright complaints, cuts off the allegedly
misused computer’s connection and sends a warning message to
the computer’s user. Repeat offenses can involve the dean of
students and the student conduct board.
By complying with the DMCA, UCLA gains special legal
protections: UCLA cannot be sued simply because copyrighted
material flows across its network ““ the responsibility for
the infringement falls on the user who is controlling the data.
But the DMCA protects the Internet service provider ““ in
this case UCLA ““ rather than individual users. So while the
Recording Industry Association of America and Motion Picture
Association of America for now appear content to send violators at
UCLA a warning, students could still be sued or face criminal
charges if copyright owners elect to pursue more serious legal
remedies.
In March, the Recording Industry Association of America took the
war to a new level and sued dozens of university students ““
including many who were only accused of downloading songs ““
whereas previously they had solely targeted uploaders. U.S.
Attorney General John Ashcroft recently showed his totalitarian
face when he pursued criminal charges against five residences and
one ISP accused of using Direct Connect (also called DC++) for file
sharing.
A warning letter sounds pretty good compared to a federal
investigation named Operation Digital Gridlock.
For now, students should be happy that UCLA chose to use a
fairly limited technological solution to comply with the DMCA. UCLA
uses a program similar to the open-source Automated Copyright
Notification System (developed by media companies Vivendi Universal
Entertainment and Universal Music Group). The software forwards the
notices to students, but stops short of inspecting the data they
are transmitting through the network.
UCLA does not want to get into “policing,” or
“looking into our own networks and looking for our own
behavior,” according to Jim Davis, associate dean of
information technology. But by choosing not to police its network,
UCLA has elected to use an automated notification system that
basically assumes people are guilty. Once the copyright owner sends
a complaint, the “offending” computer is kicked off the
network and the warning letter is automatically delivered. Students
can appeal to the dean of students, but the system will still keep
them off the network until they finish the process. Volokh pointed
out that “a lot of our rhetoric about burden of proof …
really arises in criminal cases. … (In those cases) the level of
proof ““ beyond a reasonable doubt ““ is really much
stronger.”
Volokh said neither UCLA nor copyright owners can use
anti-piracy technology as a means to censor students, but that the
current system was merely a way to gain the protections of the
DMCA. And let’s be honest ““ questions of online
copyright infringement do not usually revolve around free-speech
issues, especially when it comes to sharing commercial songs and
movies.
UCLA’s current system compares favorably for students to a
competing product called Copysense, produced by Audible Magic Inc.
UCLA learned about the CopySense Network Appliance in April but
rejected it because there was “concern that it doesn’t
align well with our objectives,” said Kent Wada, UCLA’s
director of information technology policy. UCLA wants to
“maintain rights to privacy and maintain the judicial
process,” said Davis.
CopySense can be used to block all peer-to-peer networking, and
even includes the frightening ability to digitally
“listen” to songs as they are downloaded or uploaded
though the network. Those songs can then be compared to a digital
fingerprint and either cleared for transfer or blocked. Logs can
then show who downloaded what.
Yikes.
Students have the right to expect privacy. But if you are
sharing illegal files in 2004, you are really being pretty stupid
““ the RIAA and MPAA can and will target you. At best, you
will get a warning. At worst, you could face criminal charges.
The bottom line is that your computer address and name are no
longer really anonymous. At Penn State University, spokespeople are
already lumping the RIAA in with “other law enforcement
entities.” It’s pretty scary that the RIAA and MPAA are
being compared to law enforcement entities, but for now,
that’s how the system works.
Lazzaro is a fourth-year political science and psychology
student. He is the editorial development director for The Bruin.
E-mail him at dlazzaro@media.ucla.edu.