The notice and subsequent apology appears to mark the first time that a faulty notification has been made public. The incident also shows just how easily automated programs that search for copyrighted material can be fooled, as well as how disruptive such notices can be on college campuses.
Last Thursday, the RIAA sent a stiff copyright warning to Penn State's department of astronomy and astrophysics. Department officials at first were puzzled, because the notification invoked the Digital Millennium Copyright Act and alleged that one of its FTP sites was unlawfully distributing songs by the musician Usher. The letter demanded that the department "remove the site" and delete the infringing sound files.
But no such files existed on the server, which is used by faculty and graduate students to publish research and grant proposals. Matt Soccio, the department's system administrator, said that he searched the FTP server "for files ending in mp3, wma, ogg, wav, mov, mpg, etc., and found nothing that would precipitate this complaint."
Except, that is, when Soccio realized two things. The department has on its faculty a professor emeritus named Peter Usher whose work on radio-selected quasars the FTP site hosted. The site also had a copy of an a capella song performed by astronomers about the Swift gamma ray satellite, which Penn State helped to design.
The combination of the word "Usher" and the suffix ".mp3" had triggered the RIAA's automated copyright crawlers.
In an e-mail sent after a query from CNET News.com, the RIAA said a temporary employee had caused the notice to be sent. "We have withdrawn, and apologize for, the DMCA notice that had been sent to Penn State University in error. In order to safeguard against errors like this one, we have individuals look at each and every notice we send out. In this particular instance, a temp employee made a mistake and did not follow RIAA's established protocol, and we regret any inconvenience this may have caused. We are currently reviewing any other notices this temp may have sent."
The RIAA confirmed that its policy does not require its Internet copyright enforcers to listen to the complete song that is allegedly infringing.
By way of additional apology, the RIAA said it will send Peter Usher an Usher CD and T-shirt "in appreciation of his understanding." An RIAA spokesman noted that the RIAA has sent out "conservatively tens of thousands of notices" in the last five years and that this incident to be the first error that has been discovered.
A representative of Penn State said Monday afternoon that the university accepts "that this was an honest mistake by the recording industry." Spokesman Tysen Kendig said Penn State "remains committed to working closely with the RIAA and other law enforcement entities" to take actions against the trading of copyrighted material. Penn State President Graham Spanier, who testified before Congress in February about online piracy, is the co-chairman of a working group that includes the entertainment industry.
The flap at Penn State occurred as the RIAA has stepped up its enforcement efforts against peer-to-peer users on campus. It recently sued four college students for running programs that create a searchable index of files on a local area network; the students settled the suits by paying $12,000 to $17,000 each to the RIAA. It has also used the messaging features built into Kazaa and Grokster to
Under section 512 of the controversial DMCA, a representative of a copyright holder can send a "takedown" notice to a university or other Internet provider, requesting that copyrighted material be removed. Anyone receiving a false notice can sue for damages and attorney's fees, but only if the sender "knowingly materially misrepresents" information.
Cindy Cohn, legal director for the Electronic Frontier Foundation, said that portion of the DMCA gives too much leeway to copyright holders. "If you have a good-faith belief that use of the material is not authorized by the copyright holder under copyright law, that's the only standard you have to meet," Cohn said. "You can't be liable if you're wrong unless you knowingly and materially misrepresented (the information). I think the situations where there will be liability will be very small."
Cohn said the RIAA's apology is the first time that an incorrect DMCA notice has become public.
Peter Meszaros, head of Penn State's department of astronomy and astrophysics, said "there are strict and well-advertised guidelines" about using the department’s computers, and that "infringements are reported to the central Penn State computer security office, which handles any breaches, if and when they occur."
According to department policy, faculty members and graduate students may place files on the FTP site, but undergraduate students have access only with a faculty member's sponsorship.
Soccio, the department's network and information systems manager, said he had been worried that the server would be yanked from the network during the middle of Penn State's final exams last week. "If our site was shut down as this was being investigated, I wouldn't even be able to have a conversation with you because (there would) be so many people in my office wanting to know when it would be back up," he said.
The RIAA's notice went to the university's central computing office, which told the department to delete the material or "we will need to disable access to the machine hosting the infringing song." The central office then notified the department. Soccio said: "The swiftness of the activity the university wanted to take just around finals time scared the living daylights out of me. I'm just glad the university took my word for it that we weren't violating copyright law."
Now, Soccio said, he's writing a letter to his members of Congress opposing the DMCA and will post it in the department for signatures. "I'm loath to think that our educational resources and years of valuable resources can be jeopardized just because some kid in a dorm room is downloading copyrighted material," he said. "That's not a price that society should have to pay."