RIAA DMCA Letter Creation Explained

So just how does the RIAA decide when it's time to send a threatening letter about possible copyright infringement? That's a good question, isn't it? It's of particular interest to colleges and universities, which have seen a spike in copyright infringement notices from the RIAA over the last month.

It's become such an issue that it was a topic of discussion at a recent EDUCAUSE gathering of campus IT administrators.

In a post to an EDUCAUSE listserv, EDUCAUSE VP Mark Luker describes the two different approaches the RIAA uses to determine who gets a letter. The two types of approaches are "folder-based" and "transmission-based."

• Folder-based notices are triggered by the presence in a "shared folder" of a file whose distribution from that shared folder would be unauthorized.
  

• Transmission-based notices are triggered by observation of distribution.

According to Luker, "We are told that the RIAA's DMCA notices are almost completely folder-based, and have been so for many years." An exception to this is BitTorrent - and since that's a very popular P2P transmission medium, it's a notable exception.

It's interesting that they use the "making available" approach as the primary form of detection, since a recent decision in the Atlantic vs. Howell case rejected that approach.

The RIAA also indicated that while their DMCA "takedown" notices are folder-based, Early Settlement Letters and lawsuits are transmission-based. At the same time, Luker made the following points in his post:

The distinction between folder- and transmission-based infringement claims is important to campuses for a variety of reasons:

1- Confirmation. Upon receipt of a DMCA notice, some campuses use resources such as NetFlow logs to "sanity check" the data included in the notice, attempting to confirm that the claimed infringement was consistent with recorded network activity at the indicated time. Network activity characteristic of a folder-based infringement claim is radically different from network activity characteristic of a transmission-based claim.

2- Judicial charges. In response to a DMCA notice, some campuses initiate formal or informal judicial charges against the individual associated with the identified IP address, apply administrative penalties, or notify the individual and log the complaint for possible future action. In order to appropriately carry out these and other related processes -- and to best capture the "teachable moment" -- the campus must know whether the notice is folder- or transmission-based.

3- Repeat notifications. We are told that the RIAA will not generally send multiple notices based on the presence of a particular file in a particular shared folder on a particular machine. If the IP address of such a machine changes, however -- as is the norm in DHCP-based networks -- it may appear to the RIAA that multiple folder-based infringements have occurred, and multiple notices for the same file on the same machine may be generated.

4- Network filters. Some systems -- such as Audible Magic -- attempt to block transmission of nominally infringing content but do not attempt to block visibility of files in shared folders. Such systems might thus be expected to lower the number of transmission-based notices but would have little or no effect on folder-based notices.

A little more detail was dished over at The Chronicle for Higher Education, where an anonymous RIAA employee (anonymous because he feared hate email) indicated that Media Sentry, one of the RIAA's watchdogs, at least when checking for violations on LimeWire, used nothing more than the app itself and some scripting.

The RIAA maintains a list of songs whose distribution rights are owned by the RIAA's member organizations. It has given that list to Media Sentry, a company it hired to search for online pirates. That company runs copies of the LimeWire program and performs searches for those copyrighted song titles, one by one, to see if any are being offered by people whose computers are connected to the LimeWire network.

Using public, online databases (such as those at arin.net or samspade.org), Media Sentry locates the name of the Internet-service provider and determines which traders are located at colleges or universities.

The process mimics how pirates themselves locate files but with a significant difference: speed. Media Sentry has automated the process by using scripting software that types in the songs, grabs the IP addresses, checks them, and forwards the information to the RIAA.

Interesting how the guy was afraid of reprisal. On the other hand, he could have a worse job. According to what he said, before an Early Settlement Letter goes out, live people have to listen to any possible infringing songs to verify them, not exactly a thought-provoking or stimulating job.