The vast majority of all computer software is protected by copyright law. The exceptions to this rule are so few that faculty, staff and students should assume that all software on Swarthmore's computer system, on third party systems, or available through the Internet is protected by copyright unless there is clear indication to the contrary.
Typically, copyright laws allow a user of software to use the software, load it onto the hard drive of a computer, and retain the original disk as an archive copy. Users are not allowed to modify the software, make more copies of it, simultaneously use a single copy on both a home and a campus computer, or distribute the software through the Internet, unless the license agreement explicitly permits those activities.
Possessing software for which an individual does not own a license is a violation of the Copyright Act, and may subject both the College and the individual to sanctions as set forth in the Act. For all practical purposes, the Fair Use exception does not apply to operating system or application software.
In addition to application software and operating systems, federal copyright protection also extends to the data files (content) created for use with or by applications and operating systems (e.g., spreadsheets, databases, music files, video files, scanned images). Unauthorized creation, copying and distribution of these materials are violations of the federal copyright statute, unless they can be construed as fair use.
Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) was signed into law by President Clinton in October, 1998. One of the provisions of the legislation provides an opportunity for Internet service providers (ISPs) to shield themselves from liability for the actions of their subscribers that infringe on the copyrights of others. All institutions of higher education that provide Internet access fall within the scope of the definition of an ISP, with relevant subscribers being their students, faculty and staff. This document outlines the policies and procedures that Swarthmore will follow to comply with the DMCA.
Who is a subscriber?
All faculty, staff and students who receive Internet access or Web server space from the College are considered subscribers. Anyone who uses the "swarthmore.edu" Internet address or accesses the Internet using College-provided hardware, software or network connections is considered a subscriber. For example, faculty and staff using their College owned computers, faculty and staff (and their families) using wireless or remote access provided by ITS, students working on the College wired or wireless networks, on departmentally-provided facilities, or using remote access provided by ITS and the Swarthmore College Computing Society (SCCS) are all subscribers of the College services.
What is the scope of the College's liability?
As an ISP, the College is potentially liable for monetary damages (plus attorneys' fees) if any of its subscribers provide Internet access to material that infringes on the copyrights of others. (The same is true if, for example, a subscriber transmits infringing materials in an email message.) Copyright owners are entitled to recover either their "actual" damages, or statutory damages that range as high as $30,000 per work infringed. (In the case of willful infringement for financial gain, the statutory damages can be as high as $500,000 per work.) The "Fair Use" exemption that allows use of copyrighted materials in narrowly defined circumstances applies to materials in digital form just as it applies to traditional media.
The DMCA does not address the liability that individual subscribers carry for their own actions. The penalties that can be assessed against individual subscribers for copyright infringement are the same as those outlined in the preceding paragraph.
The DMCA does not require that the College "police" the Internet activities of its faculty, staff or students. It only requires that the College respond in specified ways when evidence of infringing activity is brought to its attention or when it receives information that makes it apparent that infringing activity is occurring (and only then to avoid institutional liability).
Limitation of the College's liability
The DMCA provides an opportunity (a "safe harbor") for the College to avoid liability for the actions of subscribers, provided that rigorous policies and procedures are in place and that the College did not have prior knowledge of the infringing activity. These policies and procedures include:
- The College must register a designated agent with the US Copyright Office and this individual must be identified on the College web site. This individual will receive notices from copyright owners that College subscribers have infringed on the owner's copyrights. These notifications must be in a form prescribed in the legislation and are made under penalty of perjury.
- Following receipt of a proper notification, the College must "expeditiously" remove ("take down") the infringing material or block access to it.
- The College must "promptly" notify the subscriber of the College's action. (Such notification shields the College from liability for damages sought by the subscriber.)
- The subscriber may provide a counter notification (also under penalty of perjury) to the College's designated agent stating that the copyright owner is either mistaken or that the use of the material is lawful. At this point, the College must "promptly" notify the copyright owner and restore the material no less than 10 business days and no more than 14 business days after the owner is notified of the counter notification. If the matter has been referred to a court in the intervening time, the "put back" requirement does not apply.
- The College must have in place information regarding copyright compliance and its own institutional policies and procedures. These materials must be disseminated to all subscribers.
- The College must develop policies for sanctions (including termination of services under appropriate circumstances) against subscribers who are repeatedly found to engage in infringing activities.
- The legislation makes special note of the role of faculty at educational institutions. The College is shielded from liability for the infringing activities of the faculty only under certain limited circumstances. Briefly, if the infringing material is required or recommended for a course taught at the College by the infringing faculty member during the preceding 3 years, then the liability limitations do not apply.
Swarthmore College policies and procedures related to the DMCA
- The Chief Information Technology Officer (CITO) is the designated agent registered with the US Copyright Office for the purpose of receiving notifications under the DMCA.
- Upon receipt of a notice from a copyright owner, the CITO shall determine whether it is in the form prescribed under the legislation and shall notify the subscriber and the relevant member of President's Staff. These notifications will occur within 5 business days of receipt of the notice. (The "relevant" member of President's Staff depends on the identity of the subscriber. If the subscriber is a student - the Dean of the College; if a member of the faculty - the Provost; if a non-faculty employee - the President's Staff supervisor.) If the notice from the copyright owner is defective (e.g., not sufficiently specific to locate the allegedly infringing material, etc.), the CITO will contact the copyright owner for clarification.
- If the subscriber believes that a claim of fair use is plausible, that individual must notify the CITO within 3 business days of learning of the original notice. The CITO will consult with College Counsel to determine whether the "take down" procedure should proceed.
- Absent a fair use determination, the computer identified by the notice will be blocked from using the Swarthmore College network for a minimum of one week. The subscriber is required to notify the CITO that the infringing material has been removed before access will be reinstated.
- The CITO will notify the copyright owner within 2 business days if a subscriber wishes to argue that the material is not infringing. Absent notice from the owner that the matter has been referred to a court, the subscriber may restore the material. A subscriber who wishes to argue that the material is not infringing should consult with her/his own private counsel and the Fair Use Committee prior to filing such a counter notification.
- The CITO will keep records of copyright infringements identified by either the College or by copyright owners. Instances of subscribers who are repeat offenders will be referred to, as appropriate, the Dean of the College, the Provost, or the President's Staff supervisor for disciplinary action. When appropriate, these sanctions can include termination of all ISP services.
- Electronic mail is the normal means of communication for the notifications described in these procedures, unless otherwise specified by the DMCA. Written communication is also acceptable, but phone calls/voice mail are not sufficient.