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Know Your Copy-Rights

By John G. Palfrey jr.

In 1998, the United States Congress passed the Digital Millennium Copyright Act (DMCA), an ill-advised grab bag of heavy-handed measures responding to very real fears of Internet-enabled music and video piracy. Since its passage, the uses of the DMCA by music and movie publishers have borne out many of the worries expressed by its critics. And the problem is headed into your dorm room, as a recent episode here at Harvard drives home all too clearly.

The problem is rooted in how the majority of DMCA disputes are handled in practice. A copyright holder—sometimes an artist, more often a business—sends an accusation, in the form of a “cease and desist” letter, to the Internet Service Provider (ISP) through whom the accused is getting her access to the Internet. Because the ISP doesn’t want to get sued for copyright infringement, it takes down, or blocks access to, the allegedly infringing material. In return, the ISP can get a grant of immunity. Under the DMCA, the copyright claimants often never actually have to prove their accusations of infringement, or even the validity of their claims to the copyrights in the first place.

Just last week, this problem hit Harvard’s campus. Internal documents of an electronic voting company called Diebold—including some that are believed to question the security of the company’s e-voting processes—were copied and posted on the Internet in a public space. Other users then linked to these documents from their web sites. Most people involved said they were doing so to foster debate about a pressing civic issue. One of the people who posted the Diebold documents was Derek A. Slater ’05, a student at Harvard College.

Slater posted these documents to the Internet because he believed it was important to make them available in this political debate. Diebold demanded that Harvard take down or block access to these documents and the University, seeking, quite reasonably, to shield itself from copyright liability, complied. The computer services team wrote to Slater and explained that they’d blocked access to the materials. Ordinarily, that would be the end of it. If a student is twice accused of such a violation, Harvard has said it will cut off network access—a punishment tantamount to expulsion for some undergraduates.

But Slater knows a lot about copyright law. He works part-time as a researcher on digital media here at the Berkman Center for Internet & Society at Harvard Law School. He believed that he had a defense, called “fair use,” to this accusation of copyright infringement. He asserted this defense to the University’s lawyers.

Even if you appear to have infringed one of the exclusive rights that go along with a copyright held by someone else—like making a digital copy—you may have a valid excuse. Slater believed, as do I, that he fares very well under this fair use test. This week, University counsel, much to its credit, agreed with Slater. Accordingly, his actions will not give rise to the first of the two strikes before a student is cut off from the network. The story is not over with respect to Diebold, but this is an important victory for Slater.

Copyright is not meant to be used as a weapon to stifle political speech. But it’s easy to see that universities are placed in a terrible position: either risk a lawsuit for copyright infringement or shut down access to materials without being able to consider whether there’s reason not to do so. Moreover, many students don’t know that a defense exists, much less what to do to initiate, and persevere in, an appeal.

Only the copyright holders themselves and Congress as their regulators have the power to change this climate of rule by fear rather than by adjudication.

In the meantime, we ought to strive to educate our community not only about legal risks and responsibilities, but also about the defenses and the process for appeals, which is as yet unclear at Harvard. There’s an important issue of academic integrity at the core of this problem. Harvard is not Verizon. Values other than maximizing shareholder value ought to hold sway in the University environment. Universities should make it plain how a student can assert a defense. Universities ought to support their students in cases like Slater’s.

As for Derek Slater, he’s already doing exactly the right thing.

John G. Palfrey Jr. ’94 is executive director of the Berkman Center for Internet & Society and a lecturer on law at Harvard Law School.

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