April 18, 2003
Even Harvard's Dean Misreads the DMCA Safe Harbor

In his recent Message from the Office of the Dean, the Dean of Harvard College states that to obtain protection under the DMCA, the college "will terminate the network access of any student who is a repeat offender ... The length of termination will be one year." While the Digital Millennium Copyright Act is far from perfect, copyright law does not require these severe and potentially unwarranted penalties.

Dean Lewis indicated that the College felt constrained by the DMCA to act as it did. The DMCA's safe harbor provisions are far more palatable if read closely: To obtain immunity, a service provider must adopt and implement "a policy that provides for the termination in appropriate circumstances of ... repeat infringers." [17 U.S.C. 512(i)(1)(A)] A "repeat infringer" is not someone who has merely been accused of wrongdoing, but one who has been proven to have engaged in unlawful activity, twice.

The distinction is important because entertainment industry accusations are not proof of infringement; at times, they are downright laughable. Universal Studios recently sent a demand letter to the Internet Archive because some of the Archive's public domain films had numerical filenames, apparently leading an automated 'bot to mistake a promotional film of a seamstress-in-training for the submarine movie "U-571." (See the notice and response at Chilling Effects.) Even when they accurately identify files, these notifications may not take account of personal uses or fair use defenses.

Further, the law does not specify a duration for the "termination" of access, nor the "appropriate circumstances." Here too, the College should place its students' interest in connectivity first. It can treat verified demands as a teaching opportunity by means of a brief disconnection; on today's networked campus a year's isolation is inappropriate. The College rightly recognizes the importance of the network to its educational mission, and it should likewise recognize the importance of balanced network policies that promote academic freedom. The law permits, and students are entitled to, full process before the termination of network access on copyright grounds.

Posted by Wendy at April 18, 2003 07:50 AM | TrackBack

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