• Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).


The Message Behind the Annual Copyright Notice

Answering a student's question.

August 28, 2013

On August 20, Cornell sent out its annual copyright notice to students pursuant to the regulatory requirement in the Higher Education Opportunity Act.  In the message, we always include an email whereby students with questions can communicate with me.  The first year we sent out a notice -- long before the HEOA, in 2002 -- I was up most of the night answering questions!  Since then, much has changed, and so I would approximate that it was more in the ballpark of about 30 queries this year, which can be clumped into about three issues.  Staff will help me work up a FAQ for next year.

In the meantime, one student asked me about a site he uses for content.  This blog is my response to him, although I have obviously not used his last name and not mentioned the site by name.  But I think the information is useful to more than Ryan, and so I thought I would share it with all of  you.


Hi Ryan,

Let me try to address your copyright question, which, of course we are glad that you asked.  This one is a little complicated to explain, so bear with me.  

Cornell does maintain a list of bona fide legal services, which was included in the original message.  http://www.it.cornell.edu/policies/copyright/dmca.cfm  It is not possible for us to say one way or another about any multitude of sites that we do not list, but I can offer you some thoughts to help you understand the landscape better and make an informed decision.  

First, whether a site alone may be infringing depends on a number of other factors, such as criminal fraud or trademark infringement, but for the purposes of copyright it is the nature of the content shared that is in question.  

Second, whether a site offers legal, as in licensed, content is sometimes difficult for a user to determine.  For some time, and still in existence, are a number of sites that "sell" content for lower than market value.  These sites do not have properly licensed content, so they were making money off of users who in either good faith or bad obtained the content for a pretty good deal … but there is a catch.  These sites also act as a honeypots, so to speak, whereby the real goal of the site owners is not just free money but the credit card numbers and names, which they then sell on the black market or use for identity theft.  

Another variation on this honeypot theme may be the site you have identified, but note that I put the statement in the condition, because it is hard to tell.  The downloadable songs are the honey, attracting users who get content for free and in a method that does not put them in a position of detection from content owner systems (more about that in a minute).  The goal of these sites is to get your eyes on their counterfeit trademarked goods.  Whether buyers know that the material is counterfeit depends on the buyer, but once again, buyer beware!  People who sell counterfeit goods are often have a broader criminal portfolio and may also be in the business of identity theft.  And they may have more up their fake Ralph Lauren sleeve than getting your credit card number and name from an intentional purchase.  Sometimes they use the transaction to slip in maleware, a kind of electronic Trojan Horse, onto your computer to do all kinds of interesting things: create a file share program of which you might not be aware but for which you become a distributer of copyright content; to act as a "bot" for CPU power or to bounce I.P. addresses; or to access information, including passwords to other accounts often used by thieves for criminal purposes.

Third, from a completely instrumental perspective, the downloading of content, notwithstanding common jargon, is not to my knowledge detected by the current type of systems content owners use to identify copyright infringement.  "Uploading," or distribution, is detected.  Content from your computer that goes back out to the Internet.  In my years as a DMCA Agent for Cornell University, I know of only notices for uploading, not downloading.  There may be both technical and legal reasons for this fact.  Technically, it is relatively easy to create a detection system that relies on uploading, because it is essentially a file share system!  Legally, it is a slam-dunk case of copyright violation.  You might, for example, argue fair use for a download, for example, to be used in a course assignment.  I do not know of a good case on this point, but if I were a lawyer for the content industry I would not want to have to argue it.  As a distributor, however, there is no defense, and good law that favors content owners on this point.  

Be that as it may, before you get too confident about this method to avoid detection, may I also remind you that technology changes very, very quickly.  The practice I observe today could change tomorrow.  Moreover, I would not want my observation to be interpreted as a clever by half "how to" suggestion; rather, it explains how and why these honeypot sites have become popular -- users think that they can get something for free and without detection -- but the price tag may be ultimately more than they can bear!

Finally, we send out the kind of notice that you received in more or less the form in which you read it as a result of provisions in the Higher Education Opportunity Act of 2008 that require colleges and universities to do so.  Long before we were required by law, Cornell sent out its own message on this topic designed to inform and educate students about technology and legal issues related to copyright.  Content owners, who lobbied Congress to include these provisions in a law otherwise dedicated to creating financial aid and therefore access to higher education, might want to have some regret about getting what they wished for.  The provision is so specific about the language of the notice it sets a tone that is not conducive for what I would now like to share with you on this topic, given that you have taken the time to write to me.  

Copyright infringement is a violation of U.S. law, and it does carry consequences.  Violating that law is not in itself an act of civil disobedience, as so many students have attempted to argue, against their own point, as a defense for bearing the consequences of their actions.  But in the opinion of many people, including me, our current copyright law, promulgated in 1976, is out of step with contemporary technologies and the information economy of the twenty-first century.  It is also out of balance in terms of its ultimate goal of leveling incentive with innovation, a goal set when our Founding Fathers enshrined copyright law  in the U.S. Constitution.  In other words, this issue is one of the most important political issues of your era, and as a young person entering adulthood and full citizenship you would do yourself and your generation well to treat it not as a simple do or don't but with the attention that it deserves as a key economic, political and ideological issue that goes to the heart of a democracy.  

Thank you for writing, Ryan, have a great semester and good fortunate always!



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