Guidelines for DMCA Agents at Evergreen
The following procedures, including use of the DMCA agent and educating users, should prove suitable to Evergreen's enforcement of the U.S. Digital Millennium Copyright Act of 1998.
- The College's registered DMCA agent will receive claims of infringement. Claims may come from inside or outside the College. The law requires such claims to contain certain information including location of infringing materials.
- The DMCA Agent should promptly acknowledge receipt of each infringement claim. DMCA (512)(c)(3)(B)(ii) requires that if the claim fails to comply substantially in supplying information, the service provider should promptly attempt to contact the person making the notification or take other reasonable steps to assist in the receipt of notification that substantially complies. ALERT: Do not affirm or deny the correctness of the claim in any correspondence.
- The registered DMCA agent will coordinate activities, keep records required to track repeat offenses, and assure proper closure of all incidents. The DMCA Agent and those acting for the DMCA Agent must be careful to:
- protect rights of intellectual property owners as defined by law, Evergreen's policy, and accepted standards of academic behavior;
- protect rights and due process of those accused of infringement-particularly if Fair Use protection may apply;
- generally support the authorized instruction, research, and service mission of the College; and
- check with Evergreen's legal counsel when any question arises in pursuing the above.
- On receipt of an acceptably complete claim of infringement, DMCA (512) (g) requires the registered agent to direct prompt removal of material or removal of all local or wide-area network access to the material or activity claimed to be infringing. This takedown may proceed regardless of fees paid to college agencies. This takedown must impact essential college activities as little as possible in effecting immediate compliance, and must arrange that college agents can restore the material or activity.
- The registered college agent or the agent's delegate will take reasonable steps to promptly notify the subscriber/user of the takedown. This notice will specify information required to make a counter claim, and other information explaining applicable due process rights. It may also be prudent to serve this notice also by telephone, the postal service, or a face-to-face visit.
- If the subscriber/user files a DMCA counter-claim through the registered College agent, then the College will restore materials or access if both: (a) the College has not received notice of a court order regarding these materials or activities, in the manner and time that the law defines; and (b) if the registered College agent judges that the material does not pose significant legal risk which the College is unwilling to support, and that the material positively fulfills College missions and standards of acceptable use.
- Regarding this latter judgment, the institution may lose DMCA protection [under DMCA (512)(e)(1)(C)] if within the preceding 3-year period it has received more than two notifications of claimed infringement by a faculty member or graduate student in teaching or research. The College may lose liability protection for even the first infraction for non-teaching, non-research materials made for the College. Materials that do not serve a College mission may pose more risk than perquisite value. Thus, the College may require broad reduction of technology access as part of containment or disciplinary measures for repeat problems.
- Beyond the messenger role defined by the Digital Millennium Copyright Act, the College is not obligated to assist in counter-claims involving materials or activities not essential to College missions. For materials used for authorized instruction, research, service, or journalism, the College may have a stake in assisting its members, as the DMCA defines special treatment for these. For materials or activities created typically by College staff in support of college business, the College would not typically enjoy DMCA legal protections. College officers should promptly determine whether the material or activity merits withdrawal or defense.