Higher Education Opportunity Act (HEOA) of 2008,
Pub. L. 110-315 added provisions to the Higher Education Act (HEA) of 1965, as amended, requiring institutions to take steps to combat the unauthorized distribution of copyrighted materials through illegal downloading or peer-to-peer distribution of intellectual property.
Review the regulations effective July 1, 2010.
The requirements of the final regulations, along with a summary of civil and criminal penalties for copyright infringement that may be used by institutions of higher education to meet the requirements of those regulations, are given below:
Under 34 CFR 668.14(b)(30), an institution, as a condition of participation in any Title IV, HEA program, must have developed and implemented written plans to effectively combat the unauthorized distribution of copyrighted material by users of the institution's network without unduly interfering with the educational and research use of the network. An institution must include in its plans:
- The use of one or more technology-based deterrents;
- Mechanisms for educating and informing its community about appropriate versus inappropriate use of copyrighted material, including the consumer information an institution must provide, upon request, in accordance with 34 CFR 668.43(a)(10) (described below). These mechanisms may include any additional information and approaches determined by the institution to contribute to the effectiveness of the plans, such as including pertinent information in student handbooks, honor codes, and codes of conduct in addition to e-mail and/or paper disclosures;
- Procedures for handling unauthorized distribution of copyrighted material, including disciplinary procedures; and
- Procedures for periodically reviewing the effectiveness of the plans to combat the unauthorized distribution of copyrighted materials by users of the institution's network using relevant assessment criteria. It is left to each institution to determine relevant assessment criteria. No particular technology measures are favored or required for inclusion in an institution's plans, and each institution retains the authority to determine what its particular plans for compliance will be, including those that prohibit content monitoring.
Institutions of Higher Education are given the discretion to determine how many and what type of technology-based deterrents it uses as a part of its plans-although every institution must employ at least one. Technology-based deterrents can include bandwidth shaping, traffic monitoring, accepting and responding to Digital Millennium Copyright Act (DMCA) notices and commercial products designed to reduce or block illegal file sharing. Institutions are also given discretion in determining what relevant assessment criteria are for reviewing the effectiveness of its plans.
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34 CFR 668.14(b)(30) also requires that an institutions, in consultation with the chief technology officer or other designated officer of the institution, to the extent practicable, offer legal alternatives to illegal downloading or otherwise acquiring copyrighted material, as determined by the institution. An institution must periodically review the legal alternatives for downloading or otherwise acquiring copyrighted material, and make the results of the review available to its students through a Web site or other means.
Under 34 CFR 668.43(a)(10), an institution must include information regarding institutional policies and sanctions related to the unauthorized distribution of copyrighted material in the list of institutional information provided upon request to prospective and enrolled students. This information must:
- Explicitly inform its students that unauthorized distribution of copyrighted material, including peer-to-peer file sharing, may subject a student to civil and criminal liabilities;
- Include a summary of the penalties for violation of Federal copyright laws; and
- Describe the institution's policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution's information technology system.
Under 34 CFR 668.41(c), an institution must provide to enrolled students an annual notice containing a list and brief description of the consumer information it must disclose and the procedures for obtaining this consumer information. An institution must add to this list information regarding institutional policies and sanctions related to the unauthorized distribution of copyrighted material. Consistent with current regulations (34 CFR 668.41(a)), an institution must provide this annual notice on a one-to-one basis through a direct individual notice to each enrolled student. This notice must be made through an appropriate mailing or publication, including direct mailing through the U.S. Postal Service, campus mail, or electronic mail. Posting on Internet or Intranet Web sites does not constitute notice. If the institution discloses the consumer information by posting the information on a Web site, it must include in the notice the exact electronic address at which the information is posted, and a statement that the institution will provide a paper copy of the information on request. UHD has chosen to notify students more frequently by providing information regarding copyright infringement to students via university supplied email access each semester. The university also notifies students of the provisions of this important law during initial and periodic resets of student passwords. And, although an institution is required to disclose the required information only to students, UHD makes this information also available to faculty, staff, alumni and the public via this website in an effort to keep all those that visit this website appropriately informed.
Summary of Civil and Criminal Penalties for Violation of Federal Copyright Laws
Copyright infringement is the act of exercising, without permission or legal authority, one or more of the exclusive rights granted to the copyright owner under section 106 of the Copyright Act (Title 17 of the United States Code). These rights include the right to reproduce or distribute a copyrighted work. In the file-sharing context, downloading or uploading substantial parts of a copyrighted work without authority constitutes an infringement.
Penalties for copyright infringement include civil and criminal penalties. In general, anyone found liable for civil copyright infringement may be ordered to pay either actual damages or "statutory" damages affixed at not less than $750 and not more than $30,000 per work infringed. For "willful" infringement, a court may award up to $150,000 per work infringed. A court can, in its discretion, also assess costs and attorneys' fees. For details, see Title 17, United States Code, Sections 504, 505.
Willful copyright infringement can also result in criminal penalties, including imprisonment of up to five years and fines of up to $250,000 per offense. For more information, please see the website of the U.S. Copyright Office at
www.copyright.gov, or access frequently asked questions at
Much of the information contained on this webpage was taken directly from a US Department of Education Dear Colleague Letter from Daniel T. Madzelan on behalf of the Assistant Secretary for Postsecondary Education (DCL ID: GEN-10-08; Publication Date: June 4, 2010; Subject: Institutional requirements for combating the unauthorized distribution of copyrighted material by users of the institution's network).