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  5. Handling DMCA Notices of Copyright Infringement

Handling DMCA Notices of Copyright Infringement

Author: Harvard Townsend, Chief Information Security Officer
Last Modified: May 12, 2008

Purpose

The Digital Millennium Copyright Act of 1998 (DMCA) revised copyright law for the digital environment to, among other things, define how alleged copyright infringements are to be handled and establish liability limitations for "online service providers" (OSP). As an OSP, K-State must act promptly and follow the procedures outlined below in order to comply with the DMCA, facilitate the protection of copyrighted material, and limit the institution’s liability in an alleged case of copyright infringement.


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Designated Agent for Receiving Notification

The DMCA requires designation of an agent of the institution to receive notifications of alleged copyright infringement. K-State registered its designated agent with the U.S. Copyright Office (www.copyright.gov/onlinesp/agents/kstateu.pdf) and published the contact information on its web site (www.k-state.edu/copyright.html), as required by the DMCA.

The person designated at K-State to receive notification of claims of copyright infringements, hereafter known as the "designated agent," is:

      Jeff Gauss
      Project Coordinator, Office of the Vice Provost for IT Services
      157 Dole Hall
      Kansas State University
      Manhattan, Kansas 66506
      E-mail address: jgauss@k-state.edu
      Phone number: 785-532-4201

If anyone at K-State other than the designated agent receives a notification of claimed infringement, do not accept it. Refer them to K-State’s copyright information page (www.k-state.edu/copyright.html) and take no further action. Do not forward the request to K-State’s designated agent since it is the copyright owner’s responsibility to follow the notification requirements of the DMCA.


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Procedure

Receipt of Notification

  1. Designated agent receives a notification of alleged copyright infringement from the copyright owner or agent authorized to act on behalf of the owner (hereafter called the "complainant").
  2. Designated agent verifies the completeness of the notification per requirements listed in section 512(c)(3) of the DMCA. The notification should include the following:
    1. A physical or electronic signature
    2. Identification of the infringed work
    3. Identification of the infringed material
    4. Contact information for the complainant, e.g., address, phone number, e-mail address
    5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner or the law
    6. A statement that the information contained in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner
  3. If it is incomplete, the designated agent replies to the complainant indicating such.
  4. If complete, the designated agent forwards the notice to Chief Information Security Officer for verification of infringement.

Verification of Infringement

  1. Chief Information Security Officer (CISO) verifies that the infringement notice contains the following information to assist in the investigation:
    1. File name or other appropriate identification (like a web URL) of the infringing material
    2. Date and time of infringement (be sure to adjust for time zone)
    3. IP address and/or fully-qualified domain name of the source of the material
    4. Or other information "reasonably sufficient to permit the service provider to locate the material" (DMCA section 512(c)(3)(iii))
  2. ITSO verifies the infringement by, for example, analyzing network flow data, accessing the infringing material with the implicated file sharing application, or the like.
  3. ITSO will also try to identify the location and the owner of the computer alleged to hold the infringing material using the information provided in the infringement notice and any other appropriate diagnostic tools.

Response to Complainant

  1. Upon verification of infringement, the designated agent will reply to the complainant via e-mail with the following message: "Thank you for bringing this matter to our attention. We will investigate and take appropriate action according to university policies and procedures."
  2. If the infringement cannot be verified, the ITSO will inform the designated agent who will then respond to the complainant indicating such.

"Take-Down" of Infringing Material

  1. Upon verification of infringement, ITSO will send a request to network@k-state.edu (Computing and Telecommunications Services (CTS) network staff) requesting that the computer hosting the suspected material have its network access blocked per normal K-State security procedures, as described in www.k-state.edu/its/security/procedures/compromised.html. The reason for the block will be designated as "DMCA notice" in the blocked hosts list (https://www.k-state.edu/infotech/networks/secure/blockedhosts.html). Note that computers in the residence halls are not added to this blocked hosts list. The request from ITSO to CTS should include the IP address, MAC address, NetBIOS name, and any other relevant identification information such as the eID of the owner if known.
  2. CTS network staff will post the block notice to the sirt-contacts LISTSERV mailing list.

Notification of Infringing Party ("Subscriber" in DMCA terms)

      Residence Hall Student Notification

  1. If the infringing party is a student living in a K-State residence hall, the ITSO will send the following information to the Help Desk Coordinator in Housing and Dining Services (H&DS) and cc the IT Manager in H&DS:
    1. Original DMCA notification
    2. Identification of the computer and individual responsible for the alleged infringement
  2. A representative from Housing and Dining Services will send an e-mail or postal letter to the alleged infringer in the format provided in Appendix A, attaching the infringement acknowledgement form (a PDF file) specified in Appendix B.
  3. If the infringing party does not choose to submit a counter notification (see below), he/she must print and sign the infringement acknowledgement (see Appendix B) and return it in hard copy to the Housing and Dining Services representative in order to acknowledge the infringement and confirm removal of the infringing materials.
  4. When Housing and Dining Services receives the written acknowledgement, they will notify the ITSO and the designated agent via e-mail or phone and send a copy of the signed infringement acknowledgement to the designated agent.
  5. The H&DS SIRT representative will request removal of the network block through the normal SIRT procedure (www.k-state.edu/its/security/procedures/compromised.html).

      Faculty or Staff Notification

  1. Since Fair Use may legitimize availability of copyrighted material posted by a faculty member, and blocking access to or removal of materials could substantially disrupt teaching or research, handling of infringement notices involving faculty or staff needs to occur quickly and in cooperation with the parties involved.
  2. The designated agent will send an e-mail or letter in the format provided in Appendix A to the alleged infringer, attaching the infringement acknowledgement specified in Appendix B.
  3. A copy of the notification will be sent to the appropriate unit head and SIRT representative (see https://www.ksu.edu/its/security/sirt/fullcontacts.html to identify the SIRT representative for K-State departments).
  4. If the infringing party does not choose to submit a counter notification (see below), he/she must print and sign the infringement acknowledgement (see Appendix B) and return it in hard copy to the unit head who will verify compliance, notify the designated agent, and send a copy of the signed infringement acknowledgement to the designated agent.
  5. The unit head or designee will contact the department’s SIRT representative to request removal of the network block through the normal SIRT procedure (www.k-state.edu/its/security/procedures/compromised.html).

      Other Notification

  1. If the identity of the alleged infringer cannot be determined, the CTS network analysts will leave the network block in place and notify the ITSO and the designated agent. The designated agent will respond to the complainant indicating the network access to the infringing material has been blocked but the identity of the infringer cannot be determined.
Counter Notification
  1. If the alleged infringer believes in good faith that the DMCA notice is in error, they have the right under the provision of the DMCA to submit a counter notification to K-State’s designated agent. The counter notification must include substantially the following information:
    1. The individual’s physical or electronic signature
    2. Identification of the material removed or to which access has been disabled
    3. A statement under penalty of perjury that the individual has a good faith belief that removal or disablement of the material was a mistake or the material was misidentified;
    4. The individual’s name, address, and telephone number, and a statement that the individual consents to the jurisdiction of the Federal District court (i) in the judicial district where the individual’s address is located if the address is in the United States, or (ii) in any judicial district where the service provider may be found if the individual’s address is located outside the United States (17 U.S.C. § 512(g)(3)).
  2. Students living in a residence hall will submit the counter notification to the appropriate person in H&DS, who will then forward it to the designated agent. All others will submit the counter notification to their unit head who will forward it to the designated agent.
  3. Upon receipt of a counter notification, the designated agent will notify the complainant of such, and the block will be removed within 10-14 business days unless the complainant files suit against the individual within 10 days and provided the materials and/or access are not in violation of any University policy.
Repeat Offenders
  1. DMCA states that "repeat infringers" are subject to "termination in appropriate circumstances" (DMCA section 512(i)(1)(A)).
  2. Repeat infringement by students will be adjudicated by normal Student Governing Association judicial processes.
  3. Adjudication for faculty and staff repeat infringers will be handled by normal employee disciplinary processes.
  4. Repeat infringers are subject to the full range of sanctions, including the loss of computer or network access privileges without notification, loss of eID privileges, disciplinary action, dismissal from the University, and legal action.

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Related K-State Policies and Procedures

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References

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Appendix A — Notification letter to send to the individual implicated in the DMCA notice of infringement

<enter current date>

Dear <name>,

You are receiving this letter because Kansas State University has received a notice of alleged copyright infringement which has been traced to your computer and/or your K-State eID. A copy of the notice is enclosed below, which references the following copyrighted materials:

<list the materials identified in the complaint>

In accordance with the Digital Millennium Copyright Act (DMCA), Kansas State University is required to block access to or remove the offending material(s) upon receiving the copyright infringement notice. Therefore, the computer containing these materials has had its network access blocked and will remain blocked until you respond in writing that you have removed all infringing materials and will not engage in subsequent copyright piracy activities, or you submit a counter notification (see below).

Downloading and distributing copyrighted materials (songs, movies, software, games, etc.) without permission or license from the copyright holder is illegal and also in violation of Kansas State University policies: "Prohibited Use of Recreation Software" (www.k-state.edu/policies/ppm/3490.html) and "Information Technology Usage Policy" (www.k-state.edu/policies/ppm/3420.html). We therefore expect immediate action to comply.

You must remove the infringing material from your computer, or if you have the legal right to possess the material, disable access to it by others (in others words, cease the illegal distribution activity). Then you must sign the attached infringement acknowledgement statement and return it in hard copy to <fill in the name and contact info of the person who is to receive the signed acknowledgement>.

If you in good faith believe this notice is in error, you have the right under the DMCA to submit a counter notification to K-State’s designated copyright agent, Jeff Gauss (see www.k-state.edu/copyright.html for contact information).

Once I have received the signed acknowledgment or the counter notification, I will have the network block removed so you can use your computer on the campus network again.

For information on your rights and the requirements of the counter notification, see Section 512 of the DMCA at www.law.cornell.edu/uscode/17/512.html. For more information about the Copyright Laws, see www.k-state.edu/academicservices/intprop/copyright.htm or www.copyright.gov. The full text of the DMCA can be found online at www.copyright.gov/legislation/dmca.pdf.

Your prompt attention to this serious matter is expected. If you have any questions about this letter, please contact me.

Sincerely,

<name and contact information of appropriate authority>


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Appendix B — Infringement Acknowledgement

The following letter must be filled out and signed by the infringing party and sent in hard copy to the individual who sent the original notification (i.e., the person who sent the letter in Addendum A). This letter must be received before the network block will be removed to restore Internet access and before the designated agent notifies the complainant of the action taken.

______________________________________


I, <print name> , understand that downloading, copying, sharing or otherwise distributing copyrighted information such as songs, movies, software, games, etc. without express permission of the copyright holder or agent is illegal and in violation of University policy.


I have removed all infringing materials and will not engage in subsequent copyright infringement activities.


I also understand that any subsequent violations of this policy will result in other actions in accordance with University due process.




Signature:                                                   Date:                  




Kansas State University Representative:

         Print Name:                                   

         Signature:                                              Date: