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HECN Digital Millennium Copyright Act Policy

1. Introduction

Title II of the Digital Millennium Copyright Act (“DMCA”) of 1998 limits the liability of online service providers, such as the North Dakota University System (“NDUS”) and the Higher Education Computer Network (“HECN”) for certain copyright infringement liability if various procedures are followed. This policy is intended to take advantage of the liability protections in the DMCA.The NDUS and its member institutions respect the rights of holders of copyrights, their agents and representatives and will implement appropriate policies and procedures to support these rights without infringing on the legal use, by individuals, of those materials. Legal use can include, but is not limited to, ownership, license or permission, and fair use under the Federal Copyright Act. Employees and students need to be aware of the rights of copyright owners. Information on copyright law and these rights can be found in a number of places, but general information particularly can be found by going to the following sites:

http://www.utsystem.edu/ogc/intellectualproperty/offsite.htm;

http://www.lcweb.loc.gov/copyright/

Users who are found to intentionally or repeatedly violate the copyright rights of others may be denied access to all NDUS/HECN/institutional computing facilities. All instances of reported copyright violations will be reported to the individual’s institution for possible additional disciplinary actions.

2. Designated Agent

The Designated Agent for complaints under the DMCA is Brad Miller, North Dakota University System IT Security, 4349 James Ray Drive Stop 7131, Grand Forks, ND 58202, copyright.abuse@ndus.edu, 701-777-3587. Complaints made to the Designated Agent will be communicated to the appropriate host institution under the NDUS. In North Dakota, the NDUS is represented by the HECN for computing issues for all the institutions.

3. Complaint Notice Procedures for Copyright Owners

A notice of alleged copyright infringement to the Designated Agent must have the following:

(1) A physical or digital signature of the owner of an exclusive copyright right or the owner’s authorized agent.

(2) A description of the works claimed to be infringed.

(3) A description of the allegedly infringing works or site sufficient to enable the Designated Agent to find them.

(4) Sufficient information to enable the Designated Agent to contact the complaining party.

(5) A statement that the complaining party believes in good faith that the use of the material is not authorized by the copyright owner, the owner’s agent, or the Copyright Act.

(6) A statement that the information provided by the complaining party in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner of one or more of the exclusive copyright rights.

4. Alleged Infringing Site Take Down Procedures

When properly notified of the potential copyright infringement, the Designated Agent will make a reasonable effort to contact the site or page owner of the materials in question. There will be an attempt to secure the voluntary take down of the work, but, if not, then the HECN will immediately disable access to the work unless it is immediately determined that the work is lawful under the copyright law. The owner of the site or page of the alleged infringing material may exercise their counter notice procedure rights set forth below.

5. Counter Notice Procedures

After voluntary take down or if the site is involuntarily disabled, the University can proceed to counter notification on its behalf or on behalf of its employees or students or the owner of the site may provide counter notification to the Designated Agent. Counter notices can claim only that either the copyright owner is mistaken and that the work is lawfully posted or that the work has been misidentified. A site owner may also assert that use of another’s work is fair use, which falls under the provision that the copyright owner is mistaken in characterizing the work as infringing. Various university officials may be consulted in arriving at a fair use determination.Counter notices to the Designated Agent must contain the following:

(1) A physical or digital signature of the site or page owner.

(2) A description of the materials removed and its location before it was removed.

(3) A statement that the owner believes in good faith that the material was removed by mistake or that the work is not infringing or that it was misidentified.

(4) The owner’s name, address and phone number and his or her consent to jurisdiction of the federal district court with proper jurisdiction for any court actions arising from the infringement.

(5) A statement that the owner will accept service of process from the complaining party.

Access to the materials in question will be restored within 10 to 14 business days after the date the Designated Agent receives the counter notice unless the Designated Agent first receives a notice from the complaining party that he or she has filed an action seeking a court order to restrain the page owner.

The Designated Agent will promptly send a copy of any substantially conforming counter notice to the complaining party indicating that the site will be restored in the 10 to 14 business days unless the Designated Agent receives a notice of court action.

6. Reservation of Rights

By adopting this policy and taking advantage of the liability protection provisions of the DMCA, the HECN, the NDUS or its member institutions, or the State of North Dakota do not waive any sovereign immunity or immunity under the Eleventh Amendment to the United States Constitution.