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Starting the week of Dec. 6, 2010, the Motion Picture Association of America (MPAA) sent a letter to all U.S. college and university presidents calling their attention to the anti-infringement provisions of the Higher Education Opportunity Act of 2008 (HEOA). Campus CIOs are copied. The letter echoes (and cites) material distributed by EDUCAUSE detailing the HEOA requirements that went into effect July 1, 2010, noting in particular the HEOA "policy@educause.edu.

For full information about the P2P provisions in the Higher Education Opportunity Act, see the sections below. Here are some specific resources provided by EDUCAUSE:

Background and Summary

The Higher Education Opportunity Act (HEOA) was signed into law on August 14, 2008, after protracted discussions and controversy. Proposed regulations for implementing the Act were issued by the Department of Education on August 21, 2009, and final regulations were issued on October 29, 2009. While enforcement of the HEOA provisions won't formally begin until July 1, 2010, as of August, 2008 all colleges and universities are required to make a good-faith effort at compliance.

Several sections of the HEOA deal with unauthorized file sharing on campus networks, imposing three general requirements on all U.S. colleges and universities:

  • An annual disclosure to students describing copyright law and campus policies related to violating copyright law.
  • A plan to "effectively combat the unauthorized distribution of copyrighted materials" by users of its network, including "the use of one or more technology-based deterrents".
  • A plan to "offer alternatives to illegal downloading".

General Information

 

Annual Disclosure

Each campus must distribute three pieces of information related to copyright policy and law:

i) A statement that explicitly informs its students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities;

ii) A summary of the penalties for violation of Federal copyright laws; and

iii) A description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system.

In its "Dear Colleague" letter of June 4, 2010, the Department of Education provided the following sample text for (ii):

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.

This sample text will also appear in the Federal Student Aid Handbook.

 

A plan to effectively combat unauthorized distribution using technology-based deterrents

The Department of Education regulations specify that the plan must be implemented and in writing. It must also be " periodically reviewed " using "relevant assessment criteria" as determined by each campus. Campuses have a great deal of latitude in crafting the plan and choosing the assessment criteria: "Each institution retains the authority to determine what its particular plans for compliance...will be."

There are four categories of "technology-based deterrents":

  1. Bandwidth shaping
  2. Traffic monitoring to identify the largest bandwidth users
  3. A vigorous program of accepting and responding to Digital Millennium Copyright Act (DMCA) notices
  4. A variety of commercial products designed to reduce or block illegal file sharing

These categories are equally valid in meeting the requirement to use one or more technology-based deterrents.

 

Periodic Review

The plan must include "procedures for periodically reviewing the effectiveness...using relevant assessment criteria." The Department of Education's August 21, 2009 posting included the following narrative:

The final component of the plan, in proposed §668.14(b)(30)(i)(D), would require an institution to periodically review its plan to evaluate whether it is working. One of the most controversial aspects of the proposed regulations was the evaluation of whether a plan was effectively combating the unauthorized distribution of copyrighted material. There was extensive discussion over how a plan should be reviewed to determine its effectiveness, and how much discretion institutions should be given in this area. Ultimately, tentative agreement was reached on a provision requiring an institution to periodically review its plan using relevant assessment criteria, permitting an institution discretion to determine the most appropriate criteria. As the specifics of a plan will be determined by an institution, the Department believes that the institution is in the best position to determine the appropriate criteria to assess its plan. In some cases, appropriate assessment criteria might be process-based, so long as the institution's information system information does not contradict such a determination. Such process-based criteria might look at whether the institution is following best practices, as laid out in guidance worked out between copyright owners and institutions or as developed by similarly situated institutions that have devised effective methods to combat the unauthorized distribution of copyrighted material. In other cases, assessment criteria might be outcome- based. The criteria might look at whether there are reliable indications that a particular institution's plans are effective in combating the unauthorized distribution of copyrighted material. Among such indications may be ''before and after'' comparisons of bandwidth used for peer-to-peer applications, low recidivism rates, and reductions (either in absolute or in relative numbers) in the number of legitimate electronic infringement notices received from rights holders. The institution is expected to use the assessment criteria it determines are relevant to evaluate how effective its plans are in combating the unauthorized distribution of copyrighted materials by users of the institution's networks.

 

Legal Alternatives

EDUCAUSE maintains a list of all known legitimate download services, which the community is welcome to link to.

Final HEOA Regulations Issued October 29, 2009

§ 668.14 Program participation agreement.

(b) By entering into a program participation agreement, an institution agrees that—

(30) The institution—

(i) Has developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, without unduly interfering with educational and research use of the network, that include—

(A) The use of one or more technology-based deterrents;

(B) Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material, including that described in §668.43(a)(10);

(C) Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and

(D) Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution’s network using relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution’s plans, and each institution retains the authority to determine what its particular plans for compliance with paragraph (b)(30) of this section will be, including those that prohibit content monitoring; and

(ii) Will, in consultation with the chief technology officer or other designated officer of the institution—

(A) Periodically review the legal alternatives for downloading or otherwise acquiring copyrighted material;

(B) Make available the results of the review in paragraph (b)(30)(ii)(A) of this section to its students through a Web site or other means; and

(C) To the extent practicable, offer legal alternatives for downloading or otherwise acquiring copyrighted material, as determined by the institution

§ 668.43 Institutional information.

(a) Institutional information that the institution must make readily available upon request to enrolled and prospective students under this subpart includes, but is not limited to—

(10) Institutional policies and sanctions related to copyright infringement, including—

(i) A statement that explicitly informs its students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities;

(ii) A summary of the penalties for violation of Federal copyright laws; and

(iii) A description of the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system

Updated May 2012

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