FAQ's

This webpage does not, cannot provide legal advice concerning your online activities. The intent is not to encourage or condone piracy, uploading, downloading, or making available through file sharing or website posting of copyrighted materials; nor does NSU monitor, control, or discourage a full and rich internet experience. The purpose, however, is this; in light of the growing amount of Recording Industry Association of America (RIAA) inquiries into the NSU network regarding illegal file sharing activities, NSU is providing Frequently Asked Questions (FAQ's), information about copyright laws, what to do in case you are named in an RIAA correspondence, and how to disable Peer-to-Peer (P2P) file sharing on your computer.

Links are provided to outside sources for additional information, to which NSU takes no responsibility for the content on these sites.

Definitions:

Circumvent - to intentionally manage to get around a law, rule, procedure

Cease and Desist Order - an order of an administrative agency or court prohibiting a person or business from continuing a particular course of conduct

Contributory Infringement - The other form of indirect infringement, contributory infringement, requires (1) knowledge of the infringing activity and (2) a material contribution -- actual assistance or inducement -- to the alleged piracy.

Posting access codes from authorized copies of software, serial numbers, or other tools to assist in accessing such software may subject you to liability. Providing a forum for uploading and downloading any copyrighted file or cracker utility may also be contributory infringement. Even though you may not actually make software directly available on your site, providing assistance (or supporting a forum in which others may provide assistance) in locating unauthorized copies of software, links to download sites, server space, or support for sites that do the above may contributorily infringe.

To succeed on a contributory infringement claim, the copyright owner must show that the webmaster or service provider actually knew or should have known of the infringing activity.

Copyright - a collection of rights relating to the reproduction, distribution, performance and so forth of original literary, musical, dramatic or artistic works, films, sound recordings, broadcasts and other matter

Defamation - an injury to a entity's character or reputation such that a right thinking person would think less of the injured as a result of the injurious act

Due Process - in a criminal proceeding (or a school discipline situation), all of the proper steps which are guaranteed a person under law

File sharing - the sharing of computer data on a network allowing multiple users to use the same file by being able to read, modify, copy and/or print it

Infringement - an encroachment or trespass on a right or privilege

ISP - Internet Service Provider - a company that provides access to the Internet

IP Address - Internet Protocol Address - A unique identifier of a computer connected to the Internet, like a person's street address. It doesn't identify a person, just a computer

John Doe defendants - an unknown person who is a party to legal proceedings. Since IP Addresses can identify a computer, but not a person, RIAA, upon learning the suspected offending IP addresses, can work to learn the computer owner's name

OSP - Online Service Provider - A company or organization that provides a collection of information services accessible by modem, e.g., AOL, CompuServe, and Prodigy

P2P - Peer-to-Peer communication - the communications that travel from one user's computer to another user's computer without being stored for later access on a server

Perpetuity - the state of continuing forever. In this context the writer of the cease and desist letter is trying to make the recipient agree never to post to the mentioned website's ever again.

Piracy - the act of illegally copying software, music, images, or movies that are copyright-protected

Punitive damages - damages intended to punish and deter similar wrongful conduct rather than merely compensate for losses suffered by the plaintiff (called compensatory damages). Punitive damages are authorized when the defendant acted with recklessness, malice, or deceit. As for the amount of punitive damages awardable, the Supreme Court has held that three guidelines help determine whether a punitive-damages award violates constitutional due process: (1) the reprehensibility of the conduct being punished; (2) the reasonableness of the relationship between the harm and the award; and (3) the difference between the award and the civil penalties authorized in comparable cases." BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589 (1996).

RIAA - Recording Industry Association of America - works to protect intellectual property rights worldwide and the First Amendment rights of artists; conduct consumer industry and technical research; and monitor and review-state and federal laws, regulations and policies.

RICO - Racketeer-Influenced and Corrupt Organizations Act - allows individuals to file suit against people who engage in "racketeering." Racketeering can include a variety of statutorily defined crimes; mail and wire fraud are the most common examples. A brief guide to this quite complex statute is available at http://www.ricoact.com

Subpoena -a written legal order requiring evidence to be submitted to a court or similar deliberative body

Trademark - a word, phrase, graphic image, or symbol used by a business or other organization to represent itself or its merchandise

Vicarious liability - a form of indirect copyright infringement, is found where an operator has (1) the right and ability to control users and (2) a direct financial benefit from allowing their acts of piracy. User agreements or Acceptable Use Policies may be evidence of an operator's authority over users. The financial benefit may include a subscription fee, advertising revenues, or even a bartered exchange for other copyrighted. Under the doctrine of vicarious liability, you may be found liable even if you do not have specific knowledge of infringing acts occurring on your site.

General Information

The piracy of copyrighted material is illegal and should not be condoned.  But the desire to protect copyrighted works must be balanced with the need to protect the constitutional rights of consumers, both in terms of protecting their privacy and personal safety and by invoking due process under the law. 

A federal appeals court has overturned a lower court ruling that required Verizon Online to reveal the identities of subscribers suspected of illegally exchanging copyrighted songs over the Internet.

The appeals court ruling, made Dec. 19, 2003, means that instead of serving "form" subpoenas on Internet service providers (ISPs), the recording industry must now seek identities by filing civil lawsuits against "John Doe" defendants, based on their Internet addresses, then work under the supervision of a court to learn their names.

In July of 2003, the Recording Industry Association of America began filing -- at the rate of 75 or more per day -- subpoenas to force ISPs to identify consumers who are using Peer-To-Peer file sharing software to download content from other consumers on the Internet.  Even today, the Recording Industry Association of America and its members continue to issue subpoenas using a variety of legal processes. 

If you believe you may be at risk, contact your ISP.

Examples of Easy Ways You Could Violate the Law

•  Somebody you don't even know e-mails you a copy of a copyrighted song and then you turn around and e-mail copies to all of your friends.

•  You make an MP3 copy of a song because the CD you bought expressly permits you to do so. But then you put your MP3 copy on the Internet, using a file-sharing network, so that millions of other people can download it.

•  Even if you don't illegally offer recordings to others, you join a file-sharing network and download unauthorized copies of all the copyrighted music you want for free from the computers of other network members.

•  In order to gain access to copyrighted music on the computers of other network members, you pay a fee to join a file-sharing network that isn't authorized to distribute or make copies of copyrighted music. Then you download unauthorized copies of all the music you want.

•  You transfer copyrighted music using an instant messaging service.

•  You have a computer with a CD burner, which you use to burn copies of music you have downloaded onto writable CDs for all of your friends.

When It Comes to Copying Music, What's Okay . And What's Not:

Technology has made digital copying easier than ever. But just because advances in technology make it possible to copy music doesn't mean it's legal to do so. Here are tips from some record labels on how to enjoy the music while respecting rights of others in the digital world. Stick with these, and you'll be doing right by the people who created the music.

Internet Copying

It's okay to download music from sites authorized by the owners of the copyrighted music, whether or not such sites charge a fee. For a list of some authorized sites, click here .

It's never okay to download unauthorized music from pirate sites (web or FTP) or peer-to-peer systems. Examples of peer-to-peer systems making unauthorized music available for download include: Kazaa, Grokster, Imesh, WinMX, LimeWire, Bearshare, Aimster, Morpheus, and Gnutella.

It's never okay to make unauthorized copies of music available to others (that is, uploading music) on peer-to-peer systems.

Copying CDs

It's okay to copy music onto an analog cassette, but not for commercial purposes.

It's also okay to copy music onto special Audio CD-R's, mini-discs, and digital tapes (because royalties have been paid on them) - but, again, not for commercial purposes.

Beyond that, there's no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won't usually raise concerns so long as:

The copy is made from an authorized original CD that you legitimately own

The copy is just for your personal use. It's not a personal use - in fact, it's illegal - to give away the copy or lend it to others for copying.

The owners of copyrighted music have the right to use protection technology to allow or prevent copying.

Remember, it's never okay to sell or make commercial use of a copy that you make.

Are there occasionally exceptions to these rules? Sure. A "garage" or unsigned band might want you to download its own music; but, bands that own their own music are free to make it available legally by licensing it. And, remember that there are lots of authorized sites where music can be downloaded for free. Better to be safe than sorry - don't assume that downloading or burning is legal just because technology makes it easy to do so.

FAQ's

The introductions and frequently asked questions (FAQs) are written by law students, under the supervision of law school clinical programs and the Electronic Frontier Foundation (EFF). Because the information is written for a general audience, without investigation into the facts of each particular case, it is not legal advice. Unless one of the clinics or EFF has specifically agreed to represent you individually, which the clinics may do on a case-by-case basis, there is no attorney-client relationship with you.

If I am accused of "piracy," what does this mean?
"Piracy" is slang for copyright infringement, usually used to describe the unlawful copying of software, videogames, movies or MP3s. Copyright law gives a creator of software, music, literature and other works a limited monopoly to reproduce or distribute in the created work. If you are accused of piracy, then someone is claiming that you have violated their copyright by copying part or all of their work without authorization, or have enabled other people to make such copies.

Is all copying piracy?
No. Copyright gives the owner exclusive rights to reproduce, adapt, publicly distribute, perform and display their work. Nonetheless, the law allows "fair use" of copyrighted material. Fair use permits, in certain circumstances, the use or copying of all or a portion of a copyrighted work without the permission of the owner. Copyrighted works may be used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To decide whether a use is "fair use" or not, courts consider, in part:
(1) the purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes);
(2) the nature of the copyrighted work (giving creative works more protection than factual works);
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (including size and quality- i.e. Does the portion represent the "heart" of the work); and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Courts balance these factors, placing an emphasis on the fourth, however rulings have been unpredictable. Parody may be protected by fair use where the user is actually making a comment on or criticism of the copyrighted material, even if a profit is made from the use. Still, distributing copyrighted software will rarely be fair use because people will use those copies instead of buying the software from the legitimate vendor.

Why is "piracy" such a big issue now?
Digital technology allows perfect copies and easy distribution of some works. That makes it easier for people to make and get copies of songs or videogames, and more difficult for copyright holders (record companies, etc.) to control the works once they are released to the public. This new technology has changed the way content distributors relate with their customers, and law and business models are just trying to catch up.

My website contains a disclaimer that clearly states that I do not support or promote copyright infringement. Will this protect me?
Adding such a disclaimer on your web site will not necessarily protect you from a lawsuit or criminal liability if in fact copyrighted works are being illegally copied and distributed. For more information, you should see ( http://www.chillingeffects.org/dmca512 /) provisions.

What are the penalties for copyright infringement, such as making infringing copies of software?
In a civil suit, an infringer may be liable for a copyright owner's actual damages plus any profits made from the infringement. Alternatively, the copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. ( 17 U.S.C. 504 )

Violation of copyright law is also considered a federal crime when done willfully with an intent to profit. Criminal penalties include up to ten years imprisonment depending on the nature of the violation. ( No Electronic Theft Act, 18 U.S.C. 2319 )

I run a website but I never actually upload or download copyrighted materials. Could I be liable for what visitors to my site do?
You could. Under certain circumstances, bulletin board operators and webmasters can be subject to both civil and criminal liability for contributory or vicarious copyright infringement when unauthorized copies of software (or the direct means to obtain such software) are found on their sites. If you know that people are using your site to find warez or cracked video games, you may have an obligation to do something about it, particularly if you benefit financially in any way, or are able to control the unlawful copying. You can protect yourself by complying with the DMCA Safe Harbor Provisions .

So am I better off not monitoring my website if I want to avoid contributory infringement liability?
Even though not actually knowing about a violation occurring on your website may shield you from contributory infringement liability, a "see no evil" approach will not protect you from all forms of liability. A better approach would be to understand and take the necessary precautions to fall within DMCA Safe Harbor Provisions .

Am I protected by Digital Millennium Copyright Act's " Safe Harbor "?
You may be, if you follow the DMCA's strict requirements, though different courts have disagreed on how to apply the protections. The DMCA, in the Safe Harbor provisions of 17 U.S.C. 512, limits the liability of "online service providers" (OSPs) for copyright infringement by their users. Though some debate remains over who qualifies as an OSP, the rule's history suggests that website and bulletin board operators qualify for its protections. The Safe Harbors apply to:
1. Storage of material on a system at a user's request. (e.g. pirated software, serial numbers or cracker utilities posted on message boards or in chat rooms)
2. Referral to other online resources. (e.g. linking to other sites that make infringing material available)
3. Caching of online materials from other sites. (e.g. temporary storage of other web pages on one's own server)
4. Acting as a conduit between users. (e.g. automatic delivery of e-mail between users)

In order to be protected for storage and linking (1 and 2, above), you must:
i. Lack actual knowledge and immediately remove or block access to the material when becoming aware of the infringement
ii. Not benefit financially from the activity
iii. Comply with the notice and takedown provisions and set up an agent to deal with complaints in accordance with the Act

In order to be protected for acting as a conduit (4, above):
i. A person other than the OSP must initiate the transmission
ii. The process must happen automatically, without any selection or modification of material or recipients by the OSP
iii. No copies of the material should be kept longer than necessary by the OSP

Can I copy or distribute software that is out of print and has been abandoned for years?
 The right to "Abandonware" is largely a myth. Even a title that seems to be abandoned or in the public domain is probably still protected by copyright, which (for works created after 1978, which includes most relevant software) lasts 75 years from the date of first publication, as specified in 17 U.S.C. §302(c). Unlike trademarks which may be abandoned when not in use, copyright owners are not required to actively market works to the public, offer technical support, or even stay in business in order to keep their protection.

Aren't I allowed 24 hours of "sampling" of software in order to make a purchase decision?
This is another myth without basis in U.S. Copyright law. Test periods are allowed only with explicit permission from a copyright owner as in licensed trial versions of software. Because sampling involves making a copy of the work, one of the rights explicitly reserved to copyright owners in §501(a) of the Copyright Act, it is unlawful.

Isn't sending my friend a music file from a CD I already own just like loaning her the physical CD?
Loaning someone your CD or even selling (but not renting) it is protected by U.S. copyright law since no additional copies are being made. However, when you send a music file to someone else, you retain your copy and an additional copy is made. This copying may violate the exclusive rights of copyright holders.

Aren't I allowed to make a backup copy of my software?
Yes, but only for specifically authorized archival purposes, as specified in 17 U.S.C. §117(2). This does not authorize sharing or selling of backup copies. The rule allows transfer to another person only with the explicit authorization of the copyright owner and only if the original copy is transferred. Backups for individual use and those considered "an essential step" in using the software with an individual's computer are also authorized.

What if the alleged infringement happens outside of the U.S. ?
International rules including the TRIPs Agreement and the Berne Convention allow the U.S. to enforce its copyright rules under local laws in over 100 participating nations.

I didn't know that what I was doing could be illegal. Am I off the hook?
No. Copyright infringement actions do not require that you actually knew that the files were protected by copyright or that your use of the files violated federal law. Claims of ignorance cannot be used as a defense to direct copyright infringement. Lack of knowledge, is, however, a defense to contributory infringement.

How can a webmaster directly infringe copyright?
Courts are split on whether an operator of a web site that simply acts as a conduit for others to share information may be found directly liable for copyright infringement. Though technically, even a passive operator violates the copyright holder's exclusive right to distribute and display their materials, most courts have required an affirmative step by the operator to further the infringement. Thus creating and maintaining a system where others may post pirated software and information that helps others obtain pirated software would not generally be sufficient whereby actively participating and encouraging the piracy would be. Posting any tools which help users circumvent copy protection ("cracker utilities") is also prohibited by §1201 of the DMCA, see Anticircumvention (DMCA) .

Does a cease and desist letter recipient have a duty to remove materials alleged to infringe copyright?
The cease and desist letter gives its recipient ("you") notice that someone is claiming something you've done or something on your site infringes a copyright. If the materials that are the subject of the notice are in fact infringing, then you do have a duty to remove them, although there may be statutory provisions ( DMCA Safe Harbor Provisions ) that protect you from a lawsuit if the materials were posted by someone else. You may have to give the poster notice of the complaint.

If you do not believe that the materials are infringing, or if you believe that you are making fair use of the materials, you may choose to take the risk of not removing the materials, but a lawsuit might follow in which the complainer tries to prove they they are right and you are wrong. If the accuser obtains a court order, then you must take down the materials.

ISP as Copyright Cop
Notice that this letter comes from an Internet Service Provider (ISP) and not from a copyright owner. The Digital Millenium Copyright Act both protects ISPs from copyright liability (leaving the end user with that liability) and requires ISPs to participate in a "takedown" process when copyright owners claim infringing use. See the FAQs associated with this notice for more information.

How do I know what's legal and what's not when it comes to copying music?
Here's the bottom line: If you distribute copyrighted music without authorization from the copyright owner, you are breaking the law. (Distribution can mean anything from "sharing" music files on the Internet to burning multiple copies of copyrighted music onto blank CD-Rs.) For more information about what's okay and what's not, click here .

Is it illegal to upload music onto the Internet even if I don't charge for it?
Yes, if the music is protected by copyright and you don't have the copyright holder's permission. U.S. copyright law prohibits the unauthorized distribution of copyrighted creative work whether or not you charge money for it.

What will happen to me if I get caught illegally copying or distributing copyrighted music?
Under federal law, first-time offenders who commit copyright violations that involve digital recordings can face criminal penalties of as much as five years in prison and/or $250,000 in fines. You could also be sued by the copyright holder in civil court, which could cost you hundreds of thousands of dollars more in damages and legal fees. For more information about legal penalties, click here .

Are there any sites where it's legal to download music?
There are plenty of Internet sites that offer music for legal downloading. To check them out, click here .

If all I do is download music files, am I still breaking the law?
Yes, if the person or network you're downloading from doesn't have the copyright holder's permission.

Can I use E-mail or instant messenger services to exchange songs with my friends?
The use of e-mail or instant messenger services to exchange songs is governed by the same copyright laws that apply to any other form of reproduction or distribution.

Am I breaking the law if I upload or download copyrighted music and leave it on my hard drive for less than 24 hours?
Reproducing or distributing copyrighted music without the permission of the copyright holder is against the law regardless of how long you hold on to the music.

Is it legal to post music that is no longer "in print"?
Copyrights don't last forever. Eventually all creative work becomes part of what is called the public domain-at which point anyone and everyone is free to copy and distribute it as they please. But just because a particular recording has gone out of print doesn't mean its copyright has lapsed. If it hasn't, then you need to get permission from the copyright holder before you post it.

What if I upload or download music to or from a server that is based outside of the U.S. ?
If you are in the United States , U.S. law applies to you regardless of where the server may be located.

What if I download or upload poor-quality recordings?
The law prohibits unauthorized copying and/or distribution of digital recordings that are recognizable copies of copyrighted work. The quality of the recordings doesn't matter.

How do I know if something is copyrighted?
When you buy music legally, there is usually a copyright mark somewhere on the product. Stolen music generally doesn't bear a copyright mark or warning. Either way, the copyright law still applies. A copyrighted creative work does not have to be marked as such to be protected by law.

Doesn't the First Amendment give me the right to download and upload anything I want, including copyrighted music?
The answer is, no, it does not. What copyright law prohibits is theft, not free expression.

Doesn't the "Fair Use doctrine" give me the right to download and upload copies of music I've purchased?
No, it doesn't. In certain instances, the use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship or research might not constitute infringement, depending on (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work has a whole, and (4) the effect of the use on the potential market for or value of the copyrighted work. However, courts have rejected the notion that uploading and downloading copyrighted sound recordings without permission constitutes the "fair use."

Steps to Take to Reduce the Chances of Being Sued

While there is no way to know exactly what the RIAA is going to do, who it is going to sue, or even how much music qualifies as a "substantial" amount, users of P2P networks can take the following steps to reduce their chances of being sued:

  1. Either:
    1. Make sure there are no potentially infringing files in your shared folder. This would ordinarily mean that your shared folder contains only files 1) that are in the public domain, 2) for which you have permission to share, or 3) that are made available under pro-sharing licenses, such as the Creative Commons license or other open media licenses, and

•  Remove all potentially misleading file names that might be confused with the name of an RIAA artist or song (e.g., "Usher" or "Madonna") from your shared folder.

Or:

    1. Disable the "sharing" or "uploading" features on your P2P application that allow other users on the network to get copies of files from your computer or scan any of your music directories. This option may not be the most savory, but it does appear that it will reduce your chances of becoming an RIAA target right now. For instructions on how to do this for particular applications, EFF suggests (but cannot guarantee) the following links:

•  The RIAA appears to be targeting subpoenas at users who allow their computers to be "Supernodes" on the FastTrack P2P System (used, for instance, by KaZaA and Morpheus). In order to further reduce the risk of having your ISP subpoenaed or of being sued yourself, it is recommend that you make sure your computer is not being used as a Supernode. To learn more about Supernodes and how to make sure your computer is not one, look here: http://www.whtvcable.com/fasttrack . See also Disabling the Supernode function with KaZaA (PDF 331k).

•  If you receive notice that your ISP has been subpoenaed for your name and address, consider contacting www.subpoenadefense.org , where you can find information about how to defend your privacy and a list of attorneys willing to help. Contact your ISP and ask the people there to notify you immediately if they receive a subpoena seeking your identity.

•  If you receive a cease and desist letter from the RIAA, consider contacting Chilling Effects , where EFF and several law school clinics are creating a gallery of cease and desist letters along with basic information about the claims being made and your rights online.

Credits

The information contained herein has been collected from website's dedicated to these issues. The sites primarily used are: www.subpoenadefense.org , www.musicunited.org , www.chillingeffects.org , and www.eff.org .

 

 

 

 

 

 
 
 
 
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