File-Trading Policy Unnecessarily Harsh

To the editors:

I was disturbed to read of the College’s concessions to pressure from the movie and music industries ( News, “Lewis Threatens To Unplug Illicit File Traders,” April 11 ). While the Digital Millennium Copyright Act (DMCA) is far from perfect, copyright law does not require the severe and potentially unwarranted penalties the University has announced.

Dean of the College Harry R. Lewis ’68 indicated that the College felt constrained by the DMCA to cut off students found to be infringing after receiving a first warning, and to deny them network access for an entire year. The DMCA’s safe harbor provisions are far more palatable if read closely: To obtain immunity, a service provider must adopt and implement “a policy that provides for the termination in appropriate circumstances of...repeat infringers.” [17 U.S.C. 512(i)(1)(A)]

A “repeat infringer” is not someone who has merely been accused of wrongdoing, but one who has been proven to have engaged in unlawful activity, twice. The distinction is important because entertainment industry accusations are not proof of infringement; at times, they are downright laughable.

Universal Studios recently sent a demand letter to the Internet Archive because some of the Archive’s public domain films had numerical filenames, apparently leading an automated “bot” to mistake a promotional film of a seamstress-in-training for the submarine movie “U-571.” Even when they accurately identify files, these notifications may not take account of personal uses or fair use defenses.

Further, the law does not specify a duration for the “termination” of access, nor the “appropriate circumstances.” Here too, the College should place its students’ interest in connectivity first. It can treat verified demands as a teaching opportunity by means of a brief disconnection; on today’s networked campus a year’s isolation is inappropriate.

The College rightly recognizes the importance of the network to its educational mission, and it should likewise recognize the importance of balanced network policies that promote academic freedom. The law permits, and students are entitled to, full process before the termination of network access on copyright grounds.

Wendy M. Seltzer ’96

April 17, 2003

The writer is a staff attorney with the Electronic Frontier Foundation.