DMCA and Courtesy Notification Procedures

Updated and approved by H David Lambert, VP and CIO, September 23, 2007

STATEMENT

This document contains Georgetown University's operational procedures for handling alleged copyright violations received under the Digital Millennium Copyright Act (DMCA), notices of a forthcoming subpoena (“courtesy notices”) that are received by the university's DMCA Agent, and subpoenas related to copyright. It is inappropriate and illegal for those connected to the Georgetown University network (SaxaNet) to download and/or distribute copyrighted material without express authorization from the copyright holder, or unless it is covered by fair use or another provision of the Copyright Act.

APPLICABILITY

These procedures apply to anyone connected to SaxaNet, including all students and employees. They extend also to fellows, visiting scholars, affiliates, Georgetown University Hospital employees, et al., when they are utilizing SaxaNet.

GUIDING PRINCIPLES/PURPOSE

Consistent with the Computer Systems Acceptable Use Policy, University resources may not be used to violate University policy or the law.

DEFINITIONS:

Employees: The term “employees” in this document refers to faculty, staff and Academic and Administrative Professionals (AAPs).

DMCA Agent: A University employee, registered with the Library of Congress Copyright Office, who serves as the point of contact for GU for those who believe someone at GU has violated the Copyright Act. The DMCA Agent typically will receive a notice to “take down” copyrighted material from the GU website. S/he may also receive courtesy notices that the university will receive a subpoena request for information.

DMCA Complaint: Complaint issued by or on behalf of a copyright holder. Typically, this is a “takedown notice” to remove copyrighted material from the Georgetown web.

Courtesy Notices: Notice sent to the University that a subpoena is forthcoming.

Proposed Settlement: Some agents for copyright holders have been sending letters to universities prior to issuing a subpoena asking the university to provide information to the alleged infringer that the copyright owner is willing to discuss a settlement.
Sections of the Copyright Act and court-created theories stemming from the act include but are not limited to:

  • Takedown notice - Title 17, Chapter 5, Section 512(c) requires the University, as an ISP, to remove or disable material that is deemed to be infringing on copyrights. The University is eligible for safe harbor protection from liability if it cooperates with the notice.
  • “John Doe” subpoena - Title 17, Chapter 5, Section 512(h) requires the University, as an ISP, to divulge personally identifiable information of alleged copyright infringers using GUnet. Suspects are identified in the subpoena by their unique Internet Protocol (IP) address. The University should evaluate a claim’s legitimacy before divulging information to the party serving the subpoena. The Family Education Rights and Privacy Act (FERPA) requires the university to comply with lawfully issued subpoenas, but it also requires that, unless the courts specifically instruct otherwise, the University attempt to inform the person against whom the subpoena is being issued before divulging information. The University is eligible for safe harbor protection from liability if it complies with the subpoena.
  • Willful infringement - Title 17 Section 506 provides that copyright infringement is willful if done intentionally, with knowledge that the work is copyrighted.
  • Contributory infringement and vicarious liability – The University may be liable for contributory infringement if GUnet is used as a conduit for the unauthorized transmission of copyrighted content and the institution is aware of these activities (material contribution). Vicarious liability may be imposed on the University if it is able to control the infringing activities and it receives direct financial benefit from the infringing activities, even if it is unaware of the activities. Possible penalties include fines and seizure of equipment used in the process.

University Offices with Responsibilities: The following university employees are involved in handling DMCA complaints or courtesy notices under these procedures:

  1. Office of Information Services
    1. Associate Vice President for University Information Services or Vice President for Information Services
    2. University Information Security Officer or his designee
    3. DMCA Agent
  2. Office of University Counsel
    1. Senior Associate University Counsel
  3. Appropriate Administrative Office
    1. Undergraduate and Graduate Students: Office of Student Affairs
      1. Director, Office of Student Conduct
      2. Assistant Director, Office of Student Conduct.
    2. b. Medical Students: Office of the Dean
      1. Associate Dean for Knowledge Management
    3. c. Law Students
      1. Law Center CIO
    4. d. Employees
      1. Cognizant supervisor/department head/department chair
      2. Cognizant Vice President
      3. Vice President for Human Resources/Cognizant Academic Officer for the Campus
EXAMPLES OF COPYRIGHT-PROTECTED MATERIALS

Georgetown has received take-down notices about music, movies, software, electronic games, art, pornography, etc.

ADMINISTRATION AND IMPLEMENTATION

All notifications of potential copyright violations will be treated as potential violations of GU’s Computer Systems Acceptable Use Policy.

Section 1: Process for handling DMCA complaints
DMCA complaints must be directed to the university's DMCA Agent, who is registered with the United States Copyright Office. Complaints must be well formed according to the requirements of the DMCA. The University does not respond to complaints that do not meet these requirements.

For each well-formed complaint that is received:

  1. The DMCA Agent will file the complaint (usually an email) for future reference.
  2. The filed complaint is then forwarded to the University Information Security Office.
  3. The University Information Security Office will use the information provided by the complainant to attempt to determine the identity of the user who is the subject of the complaint.
  4. If the identity of the user cannot be determined, the University Information Security Office will document the complaint as unresolved.
  5. If the user is identified as a student: Complaints originating from Law Center student are referred to the Law Center for resolution using its established procedures. Complaints against undergraduate or graduate students will be referred to the Office of Student Conduct; complaints against medical students will be referred to the Dean’s Office.
    1. The University Information Security Office forwards the complaint to the cognizant office, with a copy to the DMCA Agent.
    2. The cognizant office contacts the user and sets up a meeting between the user and an administrator.
    3. First offense:
      1. The Office of Student Conduct notifies the student, by email of the Office’s receipt of a DMCA complaint against the student. The student is directed to meet with the Director of Student Conduct and to discuss the nature of the complaint. (see Appendix B).
      2. The student is directed to write and sign a statement without admitting guilt that she or he understands the nature of the offense. A sample letter in Appendix C.
      3. The student is directed remove any offending materials from her or his computer.
    4. Second offense:
      1. The student is directed to remove any offending materials from his or her computer.
      2. The student’s computer is disconnected from GUnet.
      3. The student is subject to judicial action. Said action will include, but not necessarily be limited to, Disciplinary Probation I. (The official disciplinary warning status enacted for a specified duration admonishing a student that any further misconduct during this time period may result in suspension.)
      4. A copy of the notice is sent to the student's Academic Dean; and to the student's parent(s) if he/she is a dependent.
    5. The cognizant office will mark the case close when this process is concluded.
  6. If the user is identified as an employee:
    1. First Complaint:
      1. an administrator from the Office of Information Services notifies the employee of the complaint, by phone or email and notifies the employee’s supervisor and/or department head of the incident (see Appendix D).
      2. The employee receives a letter of warning letter entitled, “DMCA Complaint – Employee Response Statement & Directive Form” (sample in Appendix E) informing the employee that any subsequent complaints will result in loss of the privilege to connect to GUnet.
      3. The employee is expected to sign the directive and return copies to the Office of Information Services and his/her supervisor/department head.
      4. The administrator directs the employee to comply with the request that the materials be removed, pointing the user to technical assistance if it is needed.
      5. The University Information Security Office will review the user’s system to ensure that the specifically named copyrighted materials have been removed. Procedures for conducting a security review or audit are documented in “Procedures For Conducting A Security Review Or Audit Of A University-Owned Computer That Is Connected To GUnet.”
      6. Further disciplinary action is at the discretion of the supervisor or department head in consultation with the Human Resources Generalist.
    2. Second Complaint:
      1. The employee is immediately disconnected from GUnet. A decision to reconnect is made after review by the appropriate offices.
      2. The employee and supervisor or department head is notified of the complaint. The University Information Security Office will review the user’s system to ensure that the specifically named copyrighted materials have been removed. Procedures for conducting a security review or audit are documented in “Procedures For Conducting A Security Review Or Audit Of A University-Owned Computer That Is Connected To GUnet.”
      3. Faculty will be referred to the cognizant academic officer for the campus.
      4. Staff and Academic and Administrative Professionals will be subject to disciplinary action consistent with the policies and procedures published in Georgetown University Human Resources Manual. Suspension without pay may result if the employee is unable to perform the duties of his/her job without a computer connection.
    3. If it is determined that the employee is not using equipment owned by the University, such incidents will be handled on a case-by-case basis.
  7. The DMCA Agent or administrator handling the incident records the outcome of each complaint for future reference. The University does not notify complainants of the outcome of each complaint.

Section 2: Process for handling “courtesy notices” of a pending subpoena or proposed settlement letters

  1. The DMCA Agent will file the courtesy notice or proposed settlement letter (usually an email) for future reference.
  2. The DMCA Agent does not acknowledge receipt of the notice or letter.
  3. The DMCA Agent will forward the complaint to the Office of University Counsel and the University Information Security Office.
  4. The University Information Security Office will use the information provided by the complainant to attempt to determine the identity of the user who is the subject of the complaint.
  5. If the identity of the user cannot be determined, the University Information Security Office will note the complaint as unresolved.
  6. University Counsel will be notified if the user can be identified or not.
  7. If the user is identified as a student, University Counsel will contact the user and notify the respective campus as follows:
    1. Notices directed to Law students are referred to the Law Center for resolution using their established procedures.
    2. Notices directed to an undergraduate or graduate student, the matter will be referred to the Office of Student Conduct using their established procedures.
    3. Notices directed to medical students will be referred to the Dean’s Office.
  8. If the user is identified as an employee, University Counsel will assume responsibility for pursuing the matter.

Section 3: Process for handling subpoenas
Consistent with University procedures, all service of subpoenas should be to the Office of University Counsel, Room 202 Healy Hall.

RESPONSIBILITIES

To protect the University, all University employees designated with responsibilities under these procedures have a responsibility to act in a timely manner.

RESOURCE(S)

Computer Systems Acceptable Use Policy http://policies.georgetown.edu/31641.html

Copyright in the Information Age
http://policies.georgetown.edu/copyright/

DMCA Peer-toPeer Primer
http://policies.georgetown.edu/secure/tech/?id=33658
http://policies.georgetown.edu/33666.html

Georgetown University Human Resources Manual; including but not limited to:

Policy Number 302, “Disciplinary Actions and Dismissals”
http://data.georgetown.edu/hr/employment_services/policies.html

Policy Number 401, “Professional Conduct”
http://data.georgetown.edu/hr/employment_services/policies/gu401.html

Policy Number 403, “Confidential Information”
http://data.georgetown.edu/hr/employment_services/policies/gu403.html

University Information Security Policy and Security Resources
http://policies.georgetown.edu/31707.html
http://security.georgetown.edu/

APPROVAL

Reviewed and approved by:
Information Services Management Council, October, 2004
DMCA Working Group, November 11, 2004
H. David Lambert, VP and CIO, November 18, 2004

REVIEW CYCLE

Annually, or when actions from third-parties initiating these complaints and notices of subpoena change.

Update Information:
Revised July 25, 2007 JES
Revised August 20, 2007 AAH
Revised August 24, 2007 with Comments from Johnson, Baerwald, Achenbach, Hassler
Reviewed and approved by H. David Lambert, VP and CIO, September 23, 2007

Appendix A – DMCA Complaint Standard response to Complainant

The following standard response is sent to complainants who have sent well-formed complaints to the DMCA Agent:
 

Dear sir or madam,

We have received your DMCA complaint(s), attached to this message, and our DMCA agent has been notified of your complaint(s). Georgetown University is promptly investigating this matter and will take appropriate measures under our DMCA procedures. Should you have any questions, please feel free to contact us.

Thank you.

__________________________________________________________

DMCA Agent
Office of Information Services
Georgetown University
dmca@georgetown.edu

__________________________________________________________

Appendix B – Sample Email Message to a Student

DMCA Email Notification Language

 

Sample 1: If DMCA notice is received during the academic year.

Dear Student:

I am contacting you to inform you that University Information Services has forwarded to us a complaint that you may have violated the University's Computer Acceptable Use Policy through possible copyright infringement in offering downloads of copyrighted material on a peer-to-peer service. You are hereby directed to meet with the Director of Student Conduct, Judy Johnson, to discuss the nature of the complaint.

The times listed below are available for you to come to the Office of Student Conduct on the 5th floor of the Leavey Center to speak with Ms. Johnson. Ms. Johnson will discuss the specifics of the complaint with you at the meeting. You may fulfill your obligation by coming at any point during these listed times and dates. No prior appointment is necessary.

If you are unable to attend one of these options, you should contact me to make a separate appointment to speak with Ms. Johnson. You must complete your meeting with Ms. Johnson by no later than the last listed date (Thursday, September 16, 2007).

Failure to do so could result in disciplinary action being taken by the Office of Student Conduct or Georgetown University Information Services disabling your network and e-mail access.

Tuesday, September 14, 2007: 2PM-4PM
Wednesday, September 15, 2007: 2PM-4PM
Thursday, September 16, 2007: 2PM-3:45PM

If you have any questions please do not hesitate to contact me.
Regards,
--
Erik Hunter
Assistant Director
Office of Student Conduct
Georgetown University
530 Leavey Center
Washington, DC 20057
202-687-4553 office 202-687-6255 fax
http://studentconduct.georgetown.edu

Sample 2: If DMCA notice is received during University Breaks: Summer Session or Winter Break)

Dear Student:

I am contacting you to inform you that University Information Services has forwarded to us a complaint that you may have violated the University's Computer Acceptable Use Policy through possible copyright infringement in offering downloads of copyrighted material on a peer-to-peer service.

The purpose of this e-mail is to direct you to review the complaint (below) and complete and return to the Office of Student Conduct the DMCA COMPLAINT – STUDENT RESPONSE STATEMENT & DIRECTIVE Form (attached). The Form must be submitted by Friday, June 15, 2007 by 5:00PM.

The Form can be submitted via any of the following methods: U.S. Mail; fax (202-687-6255); or electronically. If you choose to email the Form, use your Georgetown University email account for authentication purposes, be sure to copy and paste the contents of the form into the body of your email and, in lieu of your signature, type your name and GoCard number.

Failure to do so could result in disciplinary action being taken by the Office of Student Conduct or Georgetown University Information Services disabling your network and e-mail access.

If you have any questions please do not hesitate to contact me.
Regards,
--
Erik Hunter
Assistant Director
Office of Student Conduct
Georgetown University
530 Leavey Center
Washington, DC 20057
202-687-4553 office 202-687-6255 fax
http://studentconduct.georgetown.edu

Appendix C

DMCA COMPLAINT – STUDENT RESPONSE STATEMENT & DIRECTIVE (Sample)

Name: __________________________________________________________
GUID#: __________________________________________________________
NetID: __________________________________________________________

Case No.: __________________________________________________________
DMCA Complainant: __________________________________________________________
DMCA Complaint Date: _______________________________________________________
Material: __________________________________________________________
__________________________________________________________________

On __________ , I _______________ met with _________________________ of the Office of Student Conduct to discuss the above referenced complaint.

I hereby acknowledge notification of this DMCA complaint from the above listed complaining party addressed to Georgetown University regarding alleged copyright infringements. The complaint alleges that unauthorized copyrighted materials may have been distributed by me through use of the University’s network.

While my signature below does not constitute an admission of responsibility for the alleged violations, I understand that I am hereby directed to remove, from any equipment or systems over which I have ownership/control, within the next 24 hours, any or all copyrighted materials related to this complaint, if any, for which appropriate authorization has not been obtained or there is not another lawful purpose under the Copyright Act.

I understand that I am subject to the Georgetown University Computer Acceptable Use Policy regarding appropriate use of University Information Technology. As a Georgetown University computer technology user, I understand that I am “responsible for making use of software and electronic materials in accordance with copyright and licensing restrictions and applicable university policies. Georgetown University equipment and software may not be used to violate copyright or the terms of any license agreement. No one may inspect, modify, distribute, or copy proprietary data, directories, programs, files, disks or other software without proper authorization” (from the Georgetown University Computer Systems Acceptable Use Policy, http://policies.georgetown.edu/31641.html)

I have hereby been informed that it is inappropriate and illegal to download and/or distribute copyrighted material without express authorization from the copyright holder or unless it is covered by fair use or another provision of the Copyright Act.

I understand that no disciplinary action will be taken by the University at this time. I understand that this statement will be kept on file to note this as a first time complaint. I understand that should I fail to comply with the above stated directive, I may be subject to disciplinary action under the Georgetown University Student Code of Conduct. I understand that I am required to participate in a 2-hour educational seminar conducted by UIS.

Signature: __________________________________________________________

Date: __________________________________________________________

Appendix D - Sample email message to an employee

Dear name:

The reason for this note is that we received a complaint from [name of complainant organization] (see below) that the computer assigned to you may be offering [music, movies, software, pornography, images, etc] files for download through a peer to peer application (such as P2P software being used). Because these are copyrighted materials, we've been notified this may be in violation of the Digital Millennium Copyright Act unless you have permission from the holder of the copyright to download and/or share these materials. Unauthorized use of copyrighted materials is also considered inappropriate use of Georgetown’s computer systems and networks under the Computer Systems Acceptable Use Policy (see http://www.georgetown.edu/policy/technology/acceptuse.htm).

We need you to immediately remove any such unauthorized file-sharing software and any songs, movies, unlicensed proprietary software, or pictures that may be on your computer so that you and Georgetown reduce the risk of further action by [name of complainant]. UIS will assist you in removing the software and files any may recommend that your computer be reimaged to ensure [P2P software] is removed. A ticket has been opened at the University Helpdesk. The number is XXXXXX. Please call 7-4949; they will involve the Technology Support Services group and University Information Security Office as needed.

In addition, please review the University’s Computer Systems Acceptable Use Policy, online at: http://www.georgetown.edu/policy/technology/acceptuse.htm. We have attached a letter that we are asking you to sign. The letter does not ask that you admit responsibility of having unauthorized copyrighted materials on your computer. It does ask that you acknowledge that you are familiar with university policy relating to acceptable use, including copyright. Please return a copy of this letter to my office and give one to your supervisor.

If you or your supervisor have any questions or concern, you my contact David Smith at 7-7367 (dcs44@georgetown.edu) at or David Achenbach in Human Resources at 7-2454 (da83@georgetown.edu).

Sincerely,

Ardoth A. Hassler

Copy: Supervisor, if known
Cognizant administrator/dean/VP for person’s department
Kathryn Baerwald, Senior Associate Counsel
David Achenbach, Director of Employment Services
David Lambert, Vice President and CIO
David Smith, University Information Security Officer

COMPLAINT

CUT AND PASTE EMAIL COMPLAINT HERE

Appendix E

DMCA COMPLAINT – EMPLOYEE RESPONSE STATEMENT & DIRECTIVE (sample)

Name and NetID:__________________________________________________________
Case No.: __________________________________________________________
DMCA Complainant: __________________________________________________________
DMCA Complaint Date: _______________________________________________________
Material: __________________________________________________________
__________________________________________________________________

On __________ , I _______________ received notice from {name}, {title}, University Information Services, about the above referenced complaint.

I hereby acknowledge notification of this DMCA complaint from the above listed complaining party addressed to Georgetown University regarding alleged copyright infringements. The complaint alleges that unauthorized copyrighted materials may have been distributed by me through use of the University’s network.

While my signature below does not constitute an admission of responsibility for the alleged violations, I understand that my office is hereby directed to remove, from any equipment or systems over which we have control or have been assigned to use, within the next 24 hours, any or all copyrighted materials related to this complaint, if any, for which appropriate authorization has not been obtained or there is not another lawful purpose under the Copyright Act.

I understand that my staff, students and I are subject to the Georgetown University Computer Acceptable Use Policy regarding appropriate use of technology resources. As a Georgetown University computer technology user to whom computing resources have been assigned for our specific use, I understand that we are “...responsible for making use of software and electronic materials in accordance with copyright and licensing restrictions and applicable university policies. [We] may not use Georgetown University networks, equipment and software to violate copyright or the terms of any license agreement. No one may inspect, modify, distribute, or copy proprietary data, directories, programs, files, disks or software without proper authorization.” (from the Georgetown University Computer Systems Acceptable Use Policy, http://www.georgetown.edu/policy/technology/acceptuse.htm).

I have hereby been informed that it is inappropriate and illegal to download and/or distribute copyrighted material without express authorization from the copyright holder or unless it is covered by fair use or another provision of the Copyright Act. I have informed my staff and students of this.

I understand that this statement will be kept on file to note this complaint. Violators may be subject to disciplinary action under the provisions of the Georgetown University Student Handbook or Human Resources Manual (see Policy # 302). Further, because this is a university-owned system for departmental use, said system is now subject to a review audit. If a second DMCA complaint is received, it will result in immediate removal of the assigned system from the Georgetown University network (GUNET); disciplinary action will result.

Signature: _______________________________________________Date: _________________________

Appendix F – Contact Information

Office of Information Services

  • Ardoth A. Hassler, Associate Vice President for University Information Services
  • H. David Lambert, Vice President for Information Services
  • David C. Smith, University Information Security Officer
  • Piet Niederhausen, DMCA Agent

Office of University Counsel

  • Kathryn E. Baerwald, Senior Associate University Counsel

Academic Administrative Offices

  • Judy D. Johnson, Director, Student Conduct, Office of Student Affairs
  • Pablo Molina, Law Center CIO

Human Resources

  • David Achenbach, Director of Employment Services
  • Mary Ann Mahin, VP and Chief Human Resources Officer