DMCA Notice Procedure

DMCA Notice Procedure

If a service provider receives such a notice and wants to maintain its limited liability status under the provisions of Title II of the DMCA, it must respond accordingly. It must take whatever steps it deems necessary to prevent the infringement from continuing, though the DMCA does not detail what those steps should be.

Higher education institutes qualify as service providers under the DMCA and have been receiving such notices for some years now; Carleton has received thousands.
While the copyright owners may suggest courses of action that colleges could take to deal with infringements, it is ultimately up to the institutions themselves to decide on the exact process(es) they will follow, so long as alleged infringers stop sharing the copyrighted materials as a result.

Carleton's standard procedure for handling DMCA (cease and desist) notices is outlined below, along with a few more details on the notices themselves.

Before the College is Notified

1) Copyright owners, or agents working on their behalves, aggressively scan file sharing networks for copyrighted materials belonging to their member organizations.

2) When such material is found, the IP address of the individual sharing the material is noted and used to identify the corresponding online service provider - in this case, Carleton College. A Case ID is assigned to the incident. In the case of RIAA notices, this Case ID is based on the IP address.

3) A letter detailing the Case ID, the file being shared, and the IP address from which it is being shared, is sent to Carleton's designated DMCA agent.

The letter specifically asks that the college take steps to prevent the alleged infringer - identified only by their IP address - from continuing to share the material. The letter also indicates that if Carleton fails to comply with this request, they may be held liable for future infringements. This holds true under the terms of Title II of the DMCA.

After the College is Notified

4) On receiving such a letter, Carleton's agent identifies the alleged infringer by checking the specified IP address against our database of registered machines.
(Every time a new machine is connected to one of Carleton's networks, the owner has to register the machine using their Carlnet ID, at which point an IP address is assigned to the machine and stored in the database under that ID.)

5) The alleged infringer's network access is immediately blocked.

6) An email is then sent to the individual explaining why their access has been blocked. This email includes details of the alleged infringement and a copy of the DMCA notice itself. Finally, the email outlines what steps the individual should take in order to prevent the file(s) in question from being shared and to regain their network privileges.
*To prevent the materials from being shared, the individual can either delete the copyrighted material from their machine, uninstall any file sharing utilities, or remove all copyrighted materials from these utilities' shared spaces.
* When they reconnect to the network, they are required to check a box confirming that they are not sharing any copyrighted materials.
7) Upon confirming that no copyrighted materials are being shared from their computer, the alleged infringer's network access is re-enabled. A record is kept of the alleged infringement for legal reasons and for use in the event of a repeat offense.

8) No further communication with the copyright owner is required after receipt of the DMCA notice.
This does not mean, however, that the copyright holder considers the matter resolved. For example, in the case of the RIAA, if the individual continues to share files and is identified a second time, the subsequent notice will be filed using the same Case ID as before, potentially flagging it as a repeat offense.

Repeat offenses

Repeat offenses endanger Carleton's limited liability protection under the DMCA and quite probably draw further attention to the college. If, for example, the RIAA were to record a second or third infringement from the same IP address on Carleton's network, it would not be unreasonable for them to assume that the college did not take the necessary steps after the first DMCA notice. As compliance with the requests made in a DMCA notice is required for the service provider to maintain it's limited liability standing, this has serious implications. For this reason, the process that Carleton will follow will differ somewhat when faced with a repeat offender.

First Offense

• The individual's network access is blocked until they confirm that they are not sharing copyrighted materials.

Second Offense

• The individual's network access is blocked and they are required to present their machine to the Helpdesk staff who will remove any file sharing applications installed on the machine. At this time, any copyrighted materials which can clearly be identified as having been obtained illegally will also be removed.
• The individual is also required to make an appointment with the Director of Technology Support to discuss the current situation and to review what will happen in the event of a third offense.
• Once the Helpdesk staff have finished working on the machine and the appointment has been scheduled, the individual's network access is restored.
• Should the individual fail to meet with the Director, their access will be blocked once again until after the rescheduled meeting has taken place.

Third Offense

• The individual's network access is blocked and they are required to present their machine to the Helpdesk staff who will remove any file sharing applications installed on the machine. At this time, any copyrighted materials which can clearly be identified as having been obtained illegally will also be removed.
• The case is then referred to the Dean of Students office for appropriate disciplinary action. The Dean's office is provided copies of all corresponding DMCA notices and email exchanges.
• The individual's network access may or may not be restored depending on the decisions of the Dean's office.

Details on RIAA Notices of Copyright Infringement Claims

In its letter of February 28th 2007 to University Presidents, the RIAA outlined a new settlement option that would allow alleged infringers to settle claims before a law suit was ever filed with the courts. The RIAA claims that it is offering this option in response to repeated requests from individuals for the ability to settle before they are named in court.

The following is an overview of the new settlement process, including summaries of the various letters sent by the RIAA and an outline of the steps Carleton takes when the college receives such a notice.

Before the College is Notified

• As with standard DMCA notices, the RIAA, or agents working on their behalf, identify an alleged infringer and the corresponding online service provider - in this case, Carleton College - via their IP address.
• Two letters will then be sent to Carleton's designated service provider agent - a member of staff registered with the U.S. Copyright Office as the designated recipient of DMCA notifications. The first of these is a letter to the agent themselves, outlining what it is that they are being asked to do. The second letter, however, is the core to this process: the pre-litigation settlement letter which is to be forwarded on to the alleged infringer.

After the College is Notified

• Carleton's agent will receive these two (or more, should there be more than one alleged infringer) letters and reviews the details of both. The following is a summary of such a letter.

The letter to the agent begins by alleging that someone on Carleton's network - identified only by their IP address - is infringing on copyright owned by one of the RIAA's member organizations. The letter states that "before initiating a lawsuit against that individual" the RIAA wants to "offer to settle those claims at an early stage for a substantially reduced dollar amount."

The agent letter goes on to state that, if the individual does not respond in a "timely manner", the college may be subpoenaed to provide personal details on the individual and to preserve any data which may be relevant to the court case.

• On receiving such a letter, Carleton's agent will identify the alleged infringer by checking the specified IP address against our database of registered machines. The agent will then forward the corresponding settlement letter to the alleged infringer, and their network access will then blocked.
• When the alleged infringer receives their settlement letter, they should read it through carefully and make sure that they understand it. The following is a summary of a settlement letter.

The settlement letter opens by confirming that Carleton has been asked to forward the notification prior to the RIAA filing suit. The letter then outlines the evidence that has been gathered against the individual, based solely on their IP address, citing the file sharing network or protocol (e.g. LimeWire) and the number of files that they were found to be sharing via that network.

Next the letter details the offer to settle. It states that the individual has a limited time (normally twenty days) from the date of the letter to contact the sender and settle the claims before a law suit is filed. If the individual chooses that option, the settlement is offered for "a significantly reduced amount" in comparison to any settlement which may be offered after suit has been filed, or to damages which may be awarded by a court. A phone number is provided, as is a website where alleged infringers can settle via a simple, four-step process using a major credit card.

Finally, the letter details matters for the recipient to consider such as monetary damages and legal fees. It also states that the recipient is "obliged" to preserve evidence, specifically the file sharing software and infringing materials, in the event that a law suit is filed against them.

• At this point, the individual is entirely responsible for determining how to respond to the RIAA and may wish to consult legal counsel before making a decision. Unfortunately, the college cannot provide advice or assistance in this regard.
• The individual should, however, take immediate steps to prevent further infringements, most likely shutting down or otherwise disabling their file sharing software.
• In accordance with the details of the settlement letter, Carleton will not recommend removing or deleting either the file sharing software or the infringed materials. As noted above, this is not intended as legal advice, simply a distinction from the college's recommendations with respect to the standard DMCA notices it has received in the past.
• In order to have their network access re-enabled, the individual will be required to notify the college of the steps they have taken to prevent further infringements.
• Upon receiving the this information, the agent will re-enable the alleged infringer's network access. The email will be kept on record in case the college should be asked to provide evidence of their compliance with the requests made in the notice.