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RE: Copyright infringement notice
From: "Naslund, Steve" <SNaslund () medline com>
Date: Wed, 22 Aug 2012 14:04:19 -0500

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 () delong com] 
Sent: Wednesday, August 22, 2012 1:43 PM
To: Anne P. Mitchell, Esq.
Cc: nanog () 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 () isipp com> wrote:


On Thu, Aug 16, 2012 at 6:16 AM, groupstudytac groupstudytac 
<groupstudytac () 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





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