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Copyright Infringement Notices

Note 1: Unless served with a proper subpoena, Texas State University will not disclose the name or other identifying information pertaining to an alleged infringing user to copyright holders and/or their agents.

Note 2: Information provided at this website does NOT constitute legal advice. It is intended for information and educational purposes only. Every situation is unique and you are encouraged to consult an attorney if you need specific legal advice. Neither the downloading of materials, nor any communication with respect to this website constitutes the formation of an attorney-client relationship. In reading this website, you acknowledge that nothing in the website is intended to or constitutes the practice of law or the giving of legal advice. Links to attorney-related websites, such as those provided below, do not constitute an endorsement of any legal services

 

The University considers unauthorized peer-to-peer (P2P) file sharing of copyrighted music and videos to be an inappropriate use of its network resources.  Users who engage in copyright infringement using the University’s network risk the loss of network access privileges. Repeat offenders risk additional disciplinary action up to and including expulsion or discharge. Moreover, unauthorized P2P file sharing of copyrighted materials is illegal under the Digital Millennium Copyright Act (DMCA) and exposes the perpetrator to serious civil and criminal penalties. 

The Recording Industry Association of America (RIAA) and other content owners are aggressively trying to stop unauthorized downloading, copying, and sharing of music and video by college students. They monitor the Internet continually to identify Internet Protocol (IP) addresses engaged in these activities, but they require assistance from the Internet Service Provider (ISP) to communicate with an alleged infringer.  They generally seek the ISP’s help in delivering one or more of the following notices of alleged infringement to the ISP’s users.

Copyright holders can choose to send one or any of these in response to infringing activity they may detect on our network. The notices operate independently and do not necessarily progress from one to another. For example, nothing prevents the initial communication from being a subpoena that seeks the identity of a user connected at a specific IP address at a specific day and time. Below is a summary of each type of notice with information to help you understand the nature of the notice and steps you should consider for each of the notification situations.


DMCA Takedown Notices

When a content owner determines that an IP address has been used to violate its copyright, it sends a Takedown Notice to the applicable Internet Service Provider (ISP) describing the IP address, date, time, and material involved in the alleged infringement. The notice requests that the ISP remove or disable access to the listed material under the terms of the DMCA.    

When Texas State receives such a Takedown Notice, it reviews its network activity records to independently validate the legitimacy of the complaint.  If the complaint appears valid, the University suspends the offending computer’s network access until the infringing material is removed.  Notice that the University is suspending the computer’s access to the network, not necessarily the access afforded the user via their NetID. That is because the University cannot always determine the identity of the user that was using the offending computer at the specified date and time. 

The computer will not be permitted to reconnect to the campus network until the owner can demonstrate to staff in the Information Technology Assistance Center (ITAC) that all infringing material and software has been removed. There are several ways to accomplish this task and you may wish to contact the ITAC at 512-245-4822 for the one that works best for you. 

Even if you can demonstrate a right to possess allegedly infringing material (e.g., a CD purchase receipt), you most likely do not have the right to share it with the world over file sharing networks like Gnutella. Remove all infringing material from the shared folder before re-enabling sharing. ITAC staff can assist you with this process as well.

First offenders regain network access for their computers once ITAC has confirmed removal of infringing material and the user has signed an acknowledgment form. Repeat offenders are referred to the Dean of Students for further disciplinary action. 

The University also replies to the sender of the Takedown Notice that a) network access to the material has been blocked pending its removal, if appropriate, or b) the allegation could not be validated through network activity records. The University does not provide any user identifying information to the sender of the Notice unless the Notice is accompanied or followed by a lawfully issued subpoena. Likewise, the University does not forward a copy of the Takedown Notice itself to the alleged infringer. 

 
Example Takedown Notice (redacted to protect identity)

Preservation Requests

Texas State’s practice is to first determine if the information provided in the Request may be sufficient to implicate a specific user. If not, the University notifies the requesting party of its inability to comply. If a specific user is implicated, the University preserves the information as requested and forwards the Request to that user via email. The cover email explains the nature of the Request and encourages the user to preserve evidence relating to the claims in the Request. The cover email also informs the user that they may wish to obtain legal advice before taking any other action. Once again, Texas State will not release a user’s identifying information in response to a Preservation Request unless and until the Request is accompanied or followed by a lawfully issued subpoena.

Note the stark difference between a Takedown Notice and a Preservation Request. A Takedown Notice specifically requires you to remove allegedly infringing material whereas a Preservation Request seeks the exact opposite – that you do nothing that would remove, alter, or destroy the evidence of infringement on your computer.    

 
Example Preservation Request (redacted to protect identity)

Pre-Litigation Settlement Letters

For quite some time, the RIAA’s outside legal counsel has been sending "Pre-Litigation Settlement Letters" to many universities and other ISP’s.  The Settlement Letter is generally sent to the ISP with a request that it be forwarded to the user of a particular IP address. The Letter alleges that the user of that particular IP address has violated copyright laws and presents an opportunity to settle the claim as early as possible at a "significantly reduced amount" compared to the judgment that a court might impose at the end of a lawsuit.  The Letter also informs the user to preserve evidence relating to the claims and instructs the user to retain, and not delete, any peer-to-peer programs.

Texas State’s practice is to forward a Settlement Letter along with an explanation to the alleged infringer if the University’s network activity logs can establish the identity of the person at the specified IP address with a reasonable degree of certainty. Because network log data can be unavailable or inconclusive, the University cannot guarantee that all Settlement Letters will be forwarded to alleged infringers. Individuals should not expect to receive such a letter prior to being sued for copyright infringement.   

If you receive a Settlement Letter, you alone are responsible for determining the manner in which you will respond. You are encouraged to seek legal counsel before taking any action. Based on the wording in recent Settlement Letters, recipients must settle with the RIAA within twenty (20) days of the date of the Letter or face a lawsuit (see below). 

 
Example Pre-Litigation Settlement Letter (redacted to protect identity)

Subpoenas (and Lawsuits)

In cases where no settlement is reached, the RIAA and member companies have been filing lawsuits in Federal District Courts. The suits allege that unnamed students have infringed copyrights by downloading and/or distributing copyrighted materials to others over the Internet.  After filing these "John Doe" lawsuits (so named because they name IP addresses rather than people), the companies serve subpoenas on universities seeking the identity of the users associated with the IP addresses named in the suits.

When Texas State receives such a subpoena, Texas State first ensures that the subpoena is valid and lawful. If so, and if the information sought in the subpoena can be determined, the University is legally required to provide the desired information. The Family and Education Rights and Privacy Act (“FERPA”) affords students limited protection with regard to a subpoena in that an institution served with a lawfully issued subpoena must notify the student of the subpoena in advance of compliance. This allows the student to seek legal advice and/or protection, such as limiting the scope of the subpoena. If the student does not seek or is unsuccessful in obtaining protection from the courts, the University must comply with the subpoena.   

If you receive a subpoena, we encourage you to retain your own legal counsel as soon as possible for advice on this matter before you do anything else with your computer's contents. Since the subpoena is not a Takedown Notice, removing the infringing materials is not sufficient, and, in fact, may expose you to additional liability.  The University has heard but cannot confirm that companies first use the subpoenaed information to try to settle the matter with the identified individuals, and if settlement is not reached, amend the lawsuits to name the individual students and proceed in court.

 

Additional Resources

State Bar of Texas Lawyer Referral Information Service
1-800-252-9690
www.texasbar.com
 
Subpoena Defense Alliance
http://www.subpoenadefense.org/legal.htm
 
Attorney for Students LBJ Student Center, Room 5-8.1   245-2370
 

For further information about copyright and file sharing laws and policies, as well as legal options for downloading music and video, visit:

 
For more specifics about the University’s practices regarding P2P File Sharing of copyrighted materials, see:
 
Other questions about this message should be directed to:
Information Technology Assistance Center: itac@txstate.edu and 245-ITAC (4822)

Information Technology Security: infosecurity@txstate.edu and 245-HACK (4225)