U. S. Department of Education issues "Dear Colleague" letter on HEOA P2P provisions

On June 4, the U. S. Department of Education issued a "Dear Colleague" letter (also available as a pdf), reminding campuses that July 1 is the effective date for compliance with the Higher Education Opportunity Act of 2008 (HEOA) and, in particular, with the provisions related to combating copyright infringement on campus networks. The letter reiterates the regulations finalized on October 29, 2009, which EDUCAUSE has summarized in a 1-page document and also covered in depth on our HEOA resource page.

One of the HEOA requirements is to provide prospective and enrolled students with a description of the penalties for violating copyright law, and the Dear Colleague letter includes sample language that may be used for this purpose:

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 www.copyright.gov/help/faq.

As noted in the letter, use of this language is optional. The letter also helpfully points to the regulations governing how this and the other HEOA notifications are to be distributed to prospective and enrolled students. The distribution follows the same rules as the 9 pre-existing categories of "institutional information", including tuition, refund policies, facilities and services for disabled students, and many other items. See 34 CFR 668.43(a) for the list and 34 CFR 668.41(c) for the distribution specifications.

Congress and the Department of Education have emphasized throughout the legislative and rulemaking process that colleges and universities have a great deal of flexibility in determining how they will comply with the HEOA. Compliance strategies will also change as technology and business models evolve and as experience accrues. There is thus no one-size-fits-all approach, now or in the future. Instead, EDUCAUSE has identified a range of campuses to serve as role models and case studies, whose choices can help inform peer institutions. We appreciate their willingness to act as leaders in this important work. For the current list of role-model campuses, as well as links to HEOA compliance pages from other institutions, see http://www.educause.edu/HEOARoleModels.