Combating Illegal File Sharing

June 14, 2010

Compliance with the Peer to Peer (P2P) Provisions of the Higher Education Opportunity Act

Implementation Plan for University of California, Berkeley

The HEOA P2P provisions require universities to develop and implement “written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network without unduly interfering with the educational and research use of the network.” This document is UC Berkeley’s plan to satisfy this HEOA requirement.

Plan Outline

  1. Introduction
  2. Technology-Based Deterrents
    1. Bandwidth Capping
    2. Traffic Monitoring
    3. DMCA Notice Response
  3. Community Education and Annual Discloser to Students
    1. Mechanisms for Educating the Community
  4. Legal Alternatives to Illegal File Sharing
  5. Campus Procedures for Handling Unauthorized Distribution of Copyrighted Material
  6. Periodic Review of Plan and Assessment Criteria
    1. Procedures
    2. Assessment Criteria

Appendix A:
Required Information for Community Education and Student Disclosure

  1. Appropriate vs. Inappropriate Use of Copyrighted Material
  2. Institutional Policies and Sanctions Related to Copyright Infringement
  3. Student Conduct Procedures
  4. Civil/Criminal Liabilities / Penalties for Violation of Federal Copyright Law

Introduction

The University of California, Berkeley Campus (UC Berkeley) is committed to upholding U.S. copyright law. As an Internet Service Provider under the meaning of the Digital Millennium Copyright Act (DMCA), UC Berkeley does not monitor its networks for the purpose of discovering illegal activity. However, UC Berkeley pursues a set of ongoing initiatives to ensure that copyright, particularly as it applies to digital assets, is respected within the Campus community. These initiatives are described as follows in this implementation plan.

Technology-Based Deterrents

University of California campuses have developed various network management strategies to balance the many and competing demands placed on network resources. Under provisions of the DMCA and as a matter of University policy, the University does not routinely search for illegal activity that may occur over its networks. UC Berkeley employs the following technology-based deterrents.

  1. Bandwidth capping
  2. Traffic monitoring to identify the largest bandwidth users
  3. A vigorous program of accepting and responding to DMCA notices

UC Berkeley technology-based deterrents do not involve monitoring the content of electronic communications, which would be a violation of the University of California Electronic Communications Policy.

A. Bandwidth Capping

Residence hall locations also limit the amount of bandwidth any one person can use to 100 gigabytes per week for combined uploads and downloads per contracted resident. Such capacity management tends to have a deterrent effect on the illegal file sharing of large files.

To enforce the bandwidth quota, Residential Computing network administrators monitor the quantity of residents’ network usage. The first time a resident exceeds the 100 gigabytes bandwidth quota, their in-room connection will be suspended immediately and an informational email will be sent. A bandwidth quiz must be submitted before their in-room connection is re-enabled.

B. Traffic Monitoring

Campus network administrators may, under a limited set of circumstances related to the security and performance of the network, monitor traffic to protect the quality of the network service. To ensure that bandwidth is available for academic, research and administrative uses in alignment with the University’s mission, network administrators pay attention to anomalous spikes in network traffic in order to manage the resource and follow up as appropriate regarding potential hazards to network performance and availability. Under provisions of the DMCA and as a matter of University policy, the Campus does not routinely search for illegal activity that may occur over its network.

C. DMCA Notice Response

UC Berkeley implements an active program for responding to copyright infringement notices. The institution follows UC system-wide guidelines for complying with the Digital Millennium Copyright Act (DMCA). In accordance with established procedures UC Berkeley has a DMCA agent and designated DMCA email address (DMCA), which are on file with the US Copyright Office. When UC Berkeley receives DMCA notices of alleged copyright violation, it ensures that the offending material is expeditiously removed from the network and the individual involved is appropriately addressed, as per the specifics of the case. Repeat offenders are blocked from using the network for a period of time.

Community Education and Annual Discloser to Students

UC Berkeley community/student education efforts provide information about the following areas.

  • Appropriate vs. inappropriate use of copyrighted material
  • Institutional policies and sanctions related to copyright infringement
  • Student disciplinary procedures
  • Civil/criminal liabilities
  • Penalties for violation of federal copyright law

More detailed information is provided in Appendix A.

UC Berkeley conducts an ongoing educational campaign to inform the UC community, and especially students, about our commitment to upholding copyright law, deterring copyright infringement, and following DMCA procedures. These educational activities include the following:

A. Mechanisms for Educating the Community

  • Orientation. Illegal file sharing is addressed during general campus student orientation, during residential student orientation, and during new employee orientation.
  • Account authentication. Illegal file sharing is addressed as part of the authentication process when students and/or employees are given access to campus e-mail accounts. This comprises agreeing to acceptable use policies that address copyright law.
  • Acceptable use policy. Acceptable use policies define what activities are allowed or prohibited on the network and other campus electronic communications resources. Users must agree to these policies to obtain a UC Berkeley universal access account (CalNet ID) to gain access to the network and other campus electronic communications resources.
  • Residence hall activities. Residence hall and other “student life” staff make file sharing education a regular part of their jobs and implement creative ways to educate students.
  • Informational Web sites. University of California system-wide web sites advise students, campus staff, and the public about the University’s policies in this area http://www.ucop.edu/irc/policy/copyright.html and resources about file sharing http://www.universityofcalifornia.edu/shareright. UC Berkeley has a central “Copyright Resources” site and Residential Computing Services maintain sites such as the “Policies” website with informational links to pages regarding: bandwidth, file sharing and copyright, minimum security requirements and the Residential Computing Appropriate Use Policy.
  • Posters on campus. Flyers in the residence halls, departmental offices, and visitor areas advise the community about the legalities of downloading copyrighted content

Legal Alternatives to Illegal File Sharing

UC Berkeley’s CIO is responsible for providing access to the UC community to legal options for obtaining electronic content, including movies and music. Currently, the “Copyright Resources” website https://technology.berkeley.edu/policy/copyright/ refers the campus community to the list of legal alternatives maintained by EDUCAUSE, linking to the list from its informational Web site about copyright and illegal file sharing.

UC Berkeley also maintains a low-cost music download service, “Berkeley on iTunes U” http://itunes.berkeley.edu/ in partnership with iTunes.

Campus Procedures for Handling Unauthorized Distribution of Copyrighted Material

As described in Section II.C. above under the heading “DMCA Notice Response”, UC Berkeley implements an active program for responding to online copyright infringement allegation notices.

The same procedures that are employed in handling formal allegations of copyright infringement under the DMCA are also used with any credible, specific allegation of copyright infringement as an integral part of the enforcement of University policy, sound information and network security practice, and respect for intellectual property. The Residential Computing “File Sharing and Copyright” policy webpage includes detailed information about enforcement procedures in the residence halls, including sections describing procedures for Take-Down Notices, Subpoenas, and Pre-Settlement Letters.

Periodic Review of Plan and Assessment Criteria

A. Procedures

Beginning September 2010, UC Berkeley will conduct an initial review of its Plan for Combating Illegal File sharing. Subsequent reviews will be conducted every two years. No single criterion is used to determine whether or not the plan is effective; a range of factors are considered in the context of the changing, external environment. The assessment may include the following considerations.

B. Assessment Criteria

The Plan assessment criteria to be used at UC Berkeley are process-based and may consist of the following approaches.

  • Survey of user community—are the education materials effective?
  • Periodic review and update of educational materials (Web, print, etc.) for user friendliness / clarity / organization / pertinence / effectiveness
  • Review of recidivism—whether there are few or many repeat offenders (in comparable circumstances), what the causes may be
  • Review of other institutions’ practices to determine if there are different approaches worth exploring and that are appropriate to the campus’s environment and policies
  • Review of the technological, social, and legal trends that may alter the number of complaints received

Appendix A

Required Information for Community Education and Student Disclosure

The following information will be included in the educational information provided to the community and as part of the annual student disclosure. This information will be posted on and linked to from a Web site, and may be referred to in the range of other educational mechanisms the campus employs.

A. Appropriate vs. Inappropriate Use of Copyrighted Material

A University of California System-wide website provides information about copyright, including appropriate vs. inappropriate uses of copyrighted material. The information includes FAQs about copyright ownership and using copyrighted material, and links to pertinent University of California policies

The UC Berkeley Copyright Resources website links to the above UC website, as well as providing other educational and resource information.

Copyright law allows for the “fair use” of copyrighted materials for purposes of teaching, scholarship, and research. Fair use is a complex subject; some resources for more information follow:

B. Institutional Policies and Sanctions Related to Copyright Infringement

Information about University policies addressing copyright infringement is available on the web. The UC Electronic Communications Policy (ECP) states that “The contents of all electronic communications shall conform to laws and University policies regarding protection of intellectual property, including laws and policies regarding copyright, patents, and trademarks” (section III.D.10. Intellectual Property).

The ECP also provides for sanctions against network users who violate copyright law and UC policy: “In compliance with the Digital Millennium Copyright Act, the university reserves the right to suspend or terminate access to university electronic communications systems and services by any user who repeatedly violates copyright law” (ECP Section III Allowable Use, E).

UC Berkeley has local policy as well that govern copyright infringement including the Campus Computer Use Policy which states as an example of misuse “Violating terms of applicable software licensing agreements or copyright laws”, and the Residential Computing Appropriate Use Policy which states “Sharing copyrighted material without permission is against the law.”

C. Student Conduct Procedures

UC Berkeley handles claims of online infringement under the DMCA through established processes. Once notified of possible copyright infringement, most students do not repeat the activity, and most cases do not result in a University conduct process. When it is necessary to initiate a conduct complaint, however, UC Berkeley utilizes established local procedures through the Berkeley Campus Code of Student Conduct [PDF] for adjudicating violations of University policy, including copyright violations. (Also see Student Conduct.) Appropriate sanctions are imposed according to University guidelines. The type of sanction imposed depends on the facts of the case and may range from a warning to probation and may include a loss of privileges. For more serious incidents, sanctions could include suspension and, potentially, dismissal from the University. UC Berkeley may use sanctions as a means to further educate students about responsibilities and appropriate behavior. For example, the student may be required to write a paper on copyright infringement, engage in community service, or develop copyright education materials for distribution.

It is important to note that the UC Electronic Communications Policy provides for sanctions. It states that “In compliance with the Digital Millennium Copyright Act, the university reserves the right to suspend or terminate access to university electronic communications systems and services by any user who repeatedly violates copyright law.” (ECP Section III Allowable Use, E)

Students are subject to sanctions under the Berkeley Campus Code of Student Conduct [PDF], which states that illegal file sharing of copyrighted materials is a violation that may be grounds for discipline.

“Chancellors may impose discipline for the commission or attempted commission…of the following types of violations….” (section 102)

“Abuses include (but are not limited to) unauthorized entry, use, transfer, or tampering with the communications of others; interference with the work of others and with the operations of computer and electronic communications facilities, systems, and services; or copyright infringement (for example, the illegal file sharing of copyrighted materials).” (section 102.5)

In addition, the UC Berkeley Computer Use Policy includes:

“Penalties may be imposed under one or more of the following: University of California regulations, UC Berkeley regulations, California law, or the laws of the United States.”

“Infractions by students may result in the temporary or permanent restriction of access privileges, notification of a student's academic advisor and/or referral of the situation to the Office of Student Judicial Affairs.”

The Residential Computing Appropriate Use policy states:

“if you illegally share copyrighted material with others you will be subject to disciplinary and/or legal action.”

D. Civil/Criminal Liabilities / Penalties for Violation of Federal Copyright Law

UC Berkeley students are explicitly informed that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject them to civil and criminal liabilities. For example, the Residential Computing Appropriate Use Policy currently includes the following specific statements:

Obeying copyright laws. Sharing copyrighted material without permission is against the law.

Examples of misuse include, but are not limited to: Violating copyright laws by sharing copyrighted material (songs, movies, software, etc.) with others without the explicit permission of the copyright holder.

Policy Enforcement and Possible Penalties. Illegal reproduction of material protected by US Copyright Law is subject to civil damages and criminal penalties including fines and imprisonment.

In Academic Year 2010-11, UC Berkeley’s annual disclosure to students, as well as various other education mechanisms, will include the following statement:

Summary of Civil and Criminal Penalties for Violation of Federal Copyright Laws

Copyright infringement is the act of exercising, without permission or legal authority, one or more of the exclusive rights granted to the copyright owner under section 106 of the Copyright Act (Title 17 of the United States Code). These rights include the right to reproduce or distribute a copyrighted work. In the file sharing context, downloading or uploading substantial parts of a copyrighted work without authority constitutes an infringement.

Penalties for copyright infringement include civil and criminal penalties. In general, anyone found liable for civil copyright infringement may be ordered to pay either actual damages or "statutory" damages affixed at not less than $750 and not more than $30,000 per work infringed. For "willful" infringement, a court may award up to $150,000 per work infringed. A court can, in its discretion, also assess costs and attorneys' fees. For details, see Title 17, United States Code, Sections 504, 505.

Willful copyright infringement can also result in criminal penalties, including imprisonment of up to five years and fines of up to $250,000 per offense.

For more information, please see the Web site of the U.S. Copyright Office at www.copyright.gov, especially their FAQ's at http://www.copyright.gov/help/faq.