Educause ‘astonished’ by RIAA DMCA claims
p2pnet news | RIAA News:- “We’re astonished to hear an RIAA official quoted as saying, ‘We’re trying to make universities aware that they have an issue with peer-to-peer file sharing on their network, and so we don’t send automated notices to commercial ISP’s, I think because they are generally aware that there’s a problem’.”
That’s Steve Worona, Educause director of policy and networking programs and founding director of the Educause/Cornell Institute for computer policy and law (right).
Educause is a nonprofit association whose raison d’être is to advance higher education by promoting the intelligent use of information technology.
Worona says the RIAA is looking at the problem, “through the wrong end of the telescope,” referring to Catherine Rampell’s amazing and revealing Chronicle of Higher Education interview with an unnamed RIAA mouthperson.
“We have no capability of targeting any school at all,” according to the RIAA representative, who argues there’s a large “misperception” among university administrators that individual colleges are being picked on.
“Technically we can’t do it,” he stated. “We find what we find with this process, and that’s what we send to schools.”
As the world now knows, Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA has been blasting non-stop DMCA notices at universities across America in numbers never seen before.
A significant number of senior US school and universities were, “noticing ‘an enormous spike’ in Digital Millennium Copyright Act (DMCA) notices, p2pnet reported last month, going on to ask, “Did this mean students were ramping up their file sharing activities?”
“Clearly something has changed, and we don’t believe it’s a sudden massive spontaneous nationwide coast-to-coast spike in file-sharing activity,” said Worona at the time.
In the Chronicle story, the RIAA employee declares the Big 4 extortion unit doesn’t, “single out particular academic institutions” to be “made examples of’”.
“We have no capability of targeting any school at all,” s/he says, stating there’s a large “misperception” among university administrators that individual colleges are being picked on, and going on:
“Technically we can’t do it. We find what we find with this process, and that’s what we send to schools.”
But, “The RIAA has it completely backwards,” Worona told p2pnet, continuing >>>
Because we recognize the problem and take it very seriously, colleges and universities go far beyond what the law requires in response to network-based infringement and far beyond the actions of commercial ISP’s.
Students arrive on campus as freshmen after years of developing their file-sharing habits on commercial networks, never once being told by their ISP’s that what they’re doing may be illegal. We work to correct that failure with intense orientation, including videos and quizzes and stark warnings of the penalties imposed on infringers.
But 80% of our students live off campus, where their network connections are provided by commercial ISP’s. And they graduate to a world of commercial broadband connectivity.
The average adolescent spends only 2% of his or her time on a campus network.
Not only is the RIAA woefully mistaken about who takes infringement seriously, they’re looking at the problem through the wrong end of the telescope.
We’re pleased that the Chronicle’s article confirms the detailed statement that EDUCAUSE sent to its members Monday evening.
As noted in our statement, many campuses were under the impression that DMCA notices from the RIAA were triggered by actual transfers of infringing content, and based their responses on that belief. We now know otherwise, and I’m sure a number of campuses will adjust their procedures accordingly.
This will impact how campuses validate the notices and what, if any, sanctions they apply against the accused infringers. This new information from the RIAA also clears up the mystery of why campuses that install network filters, such as Audible Magic, continue receiving DMCA notices.
As we explain in our message, since the RIAA isn’t basing its DMCA notices on infringing traffic, blocking such traffic would have no impact on DMCA notices.
The Chronicle article also drives home the fact that the number of DMCA notices sent to any campus has no relationship to the amount of infringing traffic taking place on that campus. This should be remembered the next time the RIAA issues a “top 10″ list, and the next time lawmakers consider legislation based on counting DMCA notices.
Below is the statement Worona says went to Educause members Monday evening >>>
As part of our investigation into the recent “spike” in DMCA notifications sent to campuses by the RIAA, EDUCAUSE has learned some details we believe will be of importance to many in the higher education community.
In particular, we’ve learned that DMCA notices are frequently triggered by the presence in a “shared folder” of a file whose distribution from that shared folder would be unauthorized, rather than by observation of an actual unauthorized transmission of such a file. For simplicity, we’ll call these “folder-based” and “transmission-based” DMCA notices.
We are told that the RIAA’s DMCA notices are almost completely folder-based, and have been so for many years. (The exception is BitTorrent, where actual transmissions do play a role in the process.) The RIAA says they believed campuses were aware of this but, based on conversations with IT staff from around the higher education community, we know that many campuses were not.
The distinction between folder- and transmission-based infringement claims is important to campuses for a variety of reasons:
1- Confirmation. Upon receipt of a DMCA notice, some campuses use resources such as NetFlow logs to “sanity check” the data included in the notice, attempting to confirm that the claimed infringement was consistent with recorded network activity at the indicated time. Network activity characteristic of a folder-based infringement claim is radically different from network activity characteristic of a transmission-based claim.
2- Judicial charges. In response to a DMCA notice, some campuses initiate formal or informal judicial charges against the individual associated with the identified IP address, apply administrative penalties, or notify the individual and log the complaint for possible future action. In order to appropriately carry out these and other related processes — and to best capture the “teachable moment” — the campus must know whether the notice is folder- or transmission-based.
3- Repeat notifications. We are told that the RIAA will not generally send multiple notices based on the presence of a particular file in a particular shared folder on a particular machine. If the IP address of such a machine changes, however — as is the norm in DHCP-based networks — it may appear to the RIAA that multiple folder-based infringements have occurred, and multiple notices for the same file on the same machine may be generated.
4- Network filters. Some systems — such as Audible Magic — attempt to block transmission of nominally infringing content but do not attempt to block visibility of files in shared folders. Such systems might thus be expected to lower the number of transmission-based notices but would have little or no effect on folder-based notices.
In considering how these observations impact your campus, note the following:
- This message applies only to the RIAA’s processes, not those of the MPAA or other content owners. Further, while the RIAA has stated that their DMCA notices are folder-based, they stress that their Early Settlement Letters and lawsuits are transmission-based.
- EDUCAUSE takes no position at this time as to whether the presence of a file in a “shared folder” does or does not constitute copyright infringement. Different courts have rendered different opinions on this so-called “making available” theory, most recently rejecting the theory on April 29 in Atlantic v Howell (http://www.eff.org/deeplinks/2008/04/big-victory-atlantic-v-howell-court-rejects-making).
- EDUCAUSE also takes no position as to whether it is or is not appropriate for campuses to impose judicial or other sanctions against community members based solely on folder-based infringement claims.
EDUCAUSE and our members take copyright infringement seriously, with campus policies and practices going far beyond what the law requires and far beyond those of commercial ISP’s. Without a clear understanding of how DMCA notices are generated, campuses cannot implement their policies appropriately, and so we will continue to seek clarification on these details from the entertainment industry.
We note in closing that the distinction between folder- and transmission-based infringement has no direct bearing on the recent “spike” in DMCA notifications. The RIAA affirms that the spike is due not to an increase in infringing activity on campus networks, but simply to changes in the mechanism used to detect and report the presence of files in shared folders. The number of DMCA notices received by any campus thus cannot be meaningfully correlated with the amount of actual infringement taking place on the campus network. For this reason, EDUCAUSE believes that counting DMCA notices is a completely inappropriate measure of success in combating infringement and an equally inappropriate basis for comparing the amount of infringement taking place campus-to-campus or year-to-year.
Definitely stay tuned.
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Chronicle of Higher Education – The RIAA Explains How It Catches Alleged Music Pirates, May 13, 2008
unnamed RIAA mouthperson – LimeWire: RIAA, MediaSentry ‘anti-pirate’ app, May 2, 2008
never seen before – RIAA vs US Schools war heats up, May 13, 2008
p2pnet – Sudden `huge` spike in school DMCA notices, April 25, 2008
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May 14th, 2008 at 7:35 am
It will be interesting to see what happens with this
http://www.p2pnet.net/story/15919
May 14th, 2008 at 6:20 pm
I believe it is the dying stage of this type of attack as they know it can now be dismissed in court. Thus we see the next new items on the agenda of their propaganda and litigation war on file sharing and the Internet emerging.
May 14th, 2008 at 6:22 pm
Because it is now defunct they want to use up all their printed notices and milk it for all its worth before anyone realizes what’s happening