Harvard and the Digital Millennium Copyright Act

The Dean of Harvard has written to students informing them that the University will “terminate the network access of any student who is a repeat offender, that is, a student who has been warned about a first incident of copyright infringement and who is again found to have been downloading, reproducing, or distributing copyrighted material in violation of the copyright laws. The length of termination will be one year. Termination of network access includes all devices owned or registered by the student. We call this severe consequence to your attention because the educational consequences of such a deprivation of access would be so very serious, given the way students typically use the Harvard network on a daily basis for educational purposes.”

John Palfrey, Head of the Berkman Center for Internet and Society has posted a thoughtful comment on the issue. “While the university wants to endorse academic freedom and doesn’t want to have to patrol the network”, he writes, “the university can’t very well endorse stealing and can’t open itself to huge liability.  While the university wants to stand up for its students, it probably isn’t likely to want to investigate and litigate every one of the notices it receives of copyright violation (from a proof perspective, one can imagine all sorts of problems of authentication, who’s doing what exactly, whether usage constitutes “fair use”, particularly in the peer-to-peer context, etc.).  While the law just requires a copyright holder to make an accusation in a letter, the law requires much more on the part of the University.  Given that the law — particularly when it comes to fair use of copyrighted material in an academic setting — is quite unclear and one often has to be willing to go to court to achieve clarity in a given instance, how can the University make decisions about the legality of use on the network?  Given the reliance of students and teachers on the network for learning at this point, is the one-year network prohibition the right penalty for repeat violation?  What does it mean to be off the network for a year?  Are you then off-campus?  I do not envy those with the job of answering these questions.”

Nor me.