Copyright infringement notice

Wed Aug 22 19:04:19 UTC 2012

Now you did it Anne, prepare for the deluge of advice requests :)
Seriously though, thanks for chiming in on this.

Steven Naslund

-----Original Message-----
From: Owen DeLong [mailto:owen at delong.com] 
Sent: Wednesday, August 22, 2012 1:43 PM
To: Anne P. Mitchell, Esq.
Cc: nanog at nanog.org
Subject: Re: Copyright infringement notice

Of all the legal advice I've seen posted to NANOG, I think this might be
the first time it's come from a lawyer.

Great post, Anne. Thanks for the advice.

Owen

On Aug 22, 2012, at 11:17 , "Anne P. Mitchell, Esq."
<amitchell at isipp.com> wrote:

> 
>> On Thu, Aug 16, 2012 at 6:16 AM, groupstudytac groupstudytac 
>> <groupstudytac at gmail.com> wrote:
>>> I get copyright notices from companies like Irdeto , saying that one

>>> of my customers IP is downloading unauthorized material using 
>>> bittorent. I also have processes in place to handle such notices .
>>> 
>>> Can anyone share how he handles such notices in his ISP environment 
>>> , i am ready to adapt some valid steps to improve the existing
process.
>>> 
>>> Or should i just ignore such messages ?
>> 
>> If you're in the U.S., the process for handling these notices is 
>> prescribed by law, specifically the Digital Millennium Copyright Act
>> (search: DMCA takedown notice). It details what the infringement 
>> notice must include in order to be actionable and what steps the ISP 
>> must take on receipt of an actionable notice. It also prescribes 
>> procedures for the alleged infringer to object and for the ISP to 
>> restore the material following an objection.
>> 
>> Follow the procedures described in the law to retain your immunity as

>> an ISP. Consult a local lawyer if you don't find them sufficiently 
>> obvious.
> 
> The thing that muddies this is that, as I understand it, the notice 
> was not for takedown (i.e. there is not an allegation that they are 
> *hosting* infringing material) - it is a notice that one of their 
> users *downloaded* copyrighted material (IP, do I have that right?)
> 
> This is part of the RIAA's "graduated response" program, to which
several major ISPs, including AT&T, Verizon, and Comcast,  have agreed.
> 
> Basically, the accuser contacts the ISP, and the ISP sends a warning
(a "copyright alert") to their user (without giving up the user to the
accuser).
> 
> If the same user is accused subsequently, they get another, sterner
warning.  In total there is a series of six warnings, with "mitigation
measures" accompanying the fifth and sixth warning.
> 
> If I were counseling an ISP  - whether one that was part of the
agreement, or not - I would say that the first order is to *put your
policy around copyright alerts in writing* - asap - and make it as
specific as possible - and then *ALWAYS FOLLOW IT EVERY SINGLE TIME*.

> 
> It almost (I say almost) doesn't matter what the policy is so long as
it's reasonable, but it matters that it be followed to the letter every
time, no exceptions.
> 
> And, if you are an ISP that isn't part of the agreement with the RIAA,
it's still not a bad idea to structure your policy to follow the six
"copyright alert" structure, because there is some precedent there, and
then you come off looking like you are trying to do the right thing,
which will make you a less easy target.
> 
> These two articles give a pretty good explanation of the deal:
> 
> https://www.eff.org/deeplinks/2012/03/graduated-response-deal-steamrol
> lers-towards-july-1-launch
> 
> http://arstechnica.com/tech-policy/2011/07/major-isps-agree-to-six-str
> ikes-copyright-enforcement-plan/
> 
> Anne
> 
> Anne P. Mitchell, Esq
> CEO/President
> Institute for Social Internet Public Policy http://www.ISIPP.com 
> Member, Cal. Bar Cyberspace Law Committee ISIPP Email Accreditation:  
> http://www.SuretyMail.com
> 