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University Procedure For Dealing with Possible Infringement of Intellectual Property Rights*

     

I. INTRODUCTION

The University of Denver is committed to providing its students, faculty and staff with an information technology system that allows us to stay at the forefront of higher education institutions while creating a practical and lively communications community. In today’s digital world, the University, like all other academic institutions, must balance this commitment with its need to fully comply with copyright and information security laws. In an attempt to deal with issues created by advanced technologies, the federal government enacted the Digital Millennium Copyright Act of 1998 (“DMCA”). The DMCA amends federal copyright law to provide certain liability protections for online service providers, including universities, when their computer systems or networks carry materials that violate (infringe) copyright law. To qualify for liability protection, the University is required to have a policy under which the computer accounts of users will be terminated if they repeatedly infringe the copyrighted works of others.

 

READ THIS IMPORTANT NOTICE!

The Division of Intellectual Property, the University’s legal counsel and a committee formed by the Board of Trustees of the University have been closely following developments in the area of enforcement of intellectual property rights. Specifically, we have monitored the litigation pertaining to alleged infringement of rights to recorded music and motion pictures. In response to the mounting controversy and heated legal climate, we have taken a number of steps to more fully inform the University community regarding the hazards of downloading, file sharing and other forms of improper use of copyright protected materials. All members of the University community are urged to review carefully the policy presented here, and to be respectful of the valuable intellectual property rights of others.

II. POLICY STATEMENT

Compliance with federal copyright law is expected of all students, faculty, and staff at the University of Denver. A tutorial on Copyright and the University’s policies can be found at left on this site. Copying, distributing, downloading, and uploading information on the Internet may infringe the copyright for that information. Federal law prohibits the reproduction, distribution, public display or public performance of copyrighted materials over the Internet without permission of the copyright holder, except in accordance with fair use or other statutory exceptions. Violations of copyright law that occur on or over the University's networks or other computer resources may create liability for the University as well as the computer user. In accordance with the University Computer and Network Acceptable Use Policy repeat infringers will have their computer account and other access privileges terminated.

Copyright violations also violate the University Computer and Network Acceptable Use Policy. Violators may be referred to the appropriate disciplinary procedure. In accordance with University practices, policies and procedures, confirmation of inappropriate use of University technology resources may result in termination of access, disciplinary review, expulsion, termination of employment, legal action, or other disciplinary action. University Technology Services will, when necessary, work with University Legal Counsel, the Division of Intellectual Property and Events, and other appropriate officials in the resolution of these issues. Violations of law may also be referred for criminal or civil prosecution. Since copyright infringement may constitute a violation of the University honor code and the student code of conduct, instances involving student infringement may be referred to the Office of Citizenship and Community Standards and the student Senate.

The University of Denver will turn over the name of a particular alleged infringing user, in response to a subpoena or a lawful complaining party request, if it believes it has a legal obligation to do so.

The University of Denver complies fully with the DMCA and has in place the mandated process for receiving and tracking alleged incidents of copyright infringement.

III. PROCEDURES

A. Notice, counter notice and removal of information when the University receives an infringement claim.

Notice. A copyright owner, or person authorized to act on the owner’s behalf, must provide the University's designated DMCA agent (current name, address, phone number and e-mail address can be found at the end of this document), with written notice that information residing on the University's computer systems or networks is an infringement of the copyright. This notice must meet the requirements of 17 U.S.C. 512(c) (3), which states:

Elements of Notification.

(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(i) Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(B) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1) (A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

The notice requirement also applies to information in system cache and to information location tools (e.g., hypertext links) that infringe copyright.

Removal of information. Per 17 U.S.C. 512(c) (1), the University will promptly remove or disable access to the allegedly infringing material.

Notice to computer user. Per 17 U.S.C. 512(g) (2), the University will promptly inform the computer account holder/user that the allegedly infringing material has been removed or access has been disabled.

Counter notice from computer user. The computer account holder/user may send the University's designated DMCA agent (dmcaagent@du.edu), a written statement that the removal or disabling of access was based on a mistake or misidentification. This counter notice must meet the requirements of 17 U.S.C. 512(g) (3):

B. Contents of counter notification. To be effective under this subsection, a counter notification must be a written communication provided to the service provider's designated agent that includes substantially the following:

  1. A physical or electronic signature of the subscriber.
  2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
  3. A statement, under penalty of perjury, that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
  4. The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c) (1) (C) or an agent of such person.

Transmittal of counter notice. Per 17 U.S.C. 512(g)(2)(b), the University’s DMCA agent will promptly transmit a copy of the counter notice to the person who complained of infringement, and will inform that person that the removed material or disabled access will be restored in ten business days.

Final University action. Per 17 U.S.C. 512(g)(2)(c), the University will restore the material or access no less than 10 business days and no more than 14 business days from receipt of the counter notice, unless the University’s DMCA agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed a court action to restrain the computer account holder/user from the infringing activity that was the subject of the original notice to the University.

University Employee Responsibility. In order to maintain compliance with the requirements of 17 U.S.C. 512, a University employee with independent knowledge of a copyright violation on a University computer system or network should report the violation to University Technology Services.

C. Procedure to be used when the University has notice that material provided for an official University website, or provided for another Internet communication on behalf of the University, may infringe on intellectual property rights.

The University desires to ensure that official web sites, official email, and other official communications do not violate the intellectual property rights of third parties. The most common intellectual property rights found on the Internet involve copyright and trademark/service marks.

" Official" web sites and communications include those that are funded or otherwise sponsored by the University for a University purpose, or which are created by an employee or agent of the University who is acting within the authorized scope of employment or agency on behalf of the University (e.g., posting course materials on the web for educational use of enrolled students).

The University has "notice" of possible infringement when a third party advises a University official that there is an infringement, or when it appears to a University official that material is likely to be infringing based on the circumstances.

When the University has notice of a possible intellectual property infringement in official University-provided content, it will in good faith:

  • Attempt to establish who truly owns the copyright (or other intellectual property) through consultation with the author of the University content and the party claiming ownership.
  • Attempt to determine if any legal defense (e.g., "fair use") exists to allow the material to be used by the University.
  • Attempt to negotiate a permission or settlement if it appears that the content is infringing or if it appears that settlement is preferable to litigating an unclear claim. If permission or settlement is not feasible and it appears that the material is infringing, the University will remove the material.
  • Determine if any disciplinary action is appropriate against the person who posted infringing content. In the case of repeated infringement or bad faith infringement, disciplinary sanctions may include termination of computer privileges. Violations of the above terms of agreement may result in suspension of computing privileges, disciplinary review, termination of employment, and/or legal action. ATN will refer serious violations to the appropriate department for disciplinary action.

Removal of official University content, especially course materials, can be harmful to academic freedom, to teaching effectiveness, and to the University's educational mission. Therefore, faculty and staff are encouraged to secure copyright permission, or a license, or a legal basis for use of someone else's intellectual property, and to carefully review the University Fair Use guidelines, before using the material.

Direct questions to:
E-mail: dmcaagent@du.edu
Robert Stocker
Floral Building East 203
2343 East Evans Avenue
University of Denver
Denver, Colorado 80210

* This is an interim policy of the University which shall be applicable pending final approval by the Board of Trustees.


Office of Intellectual Property & Technology Transfer
Office: The Cable Center, 2000 Buchtel Blvd., Denver, CO 80210
Mail: Ritchie Center, 2240 E. Buchtel Blvd., Denver, CO 80208
Telephone: 303.871.4230· FAX: 303.871.4514· E-mail: cpavelka@du.edu

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