Written Plan Addressing DMCA and Peer-to-Peer File Sharing Provisions of the HEOA

Last Updated:  August 2018

This written plan has been prepared by FIT under the Digital Millennium Copyright Act (DMCA) and the peer-to-peer file sharing provisions of the Higher Education Opportunity Act (HEOA).  This plan applies to all members of FIT’s community that use or access FIT’s information technology networks and systems, including students, faculty, staff, contractors, and guests. FIT also publishes policies, available on the College Policy Library and referenced throughout this plan, that governs computer and network use and promotes safe, responsible, and legal uses of FIT’s systems. All members of FIT’s community should review these policies, in addition to this written plan. This written plan will be reviewed for effectiveness upon review of FIT’s Computer and Network Use policy, which is reviewed by the Office of Policy and Compliance every five years.

Prohibition on Intellectual Property Infringement
Under FIT’s Computer and Network Use policy, FIT prohibits using any FIT system to infringe upon the intellectual property rights of others. Allegations of infringement are subject to investigation and sanctioning under FIT policies, as outlined in the Computer and Network Use policy.  

DMCA Procedures
As provided in FIT’s Computer and Network Use policy, FIT reserves all rights under applicable safe harbors of the DMCA.  FIT has designated the following official to serve as its designated agent for receipt of notices of infringement under the DMCA:

Walter Kerner
Fashion Institute of Technology
7th Avenue and 27th Street
New York, NY  10001
Phone: 212-217-3415
Email: cybersafe@fitnyc.edu

All references to the designated agent in this plan include the designated agent’s designee. Upon receipt of a valid notice under the DMCA (or any other complaint of infringement under the Computer and Network Use policy), the designated agent will, pursuant to FIT policy, work with relevant FIT offices (e.g., Enrollment Management and Student Success, Office of Human Resources, Office of General Counsel) to respond to such notices appropriately and expeditiously, including removing and disabling access to infringing material, where applicable.

Reviewing the Validity of a DMCA Notice
Under the DMCA, a claimed infringement notice must be a written communication (email or hard copy letter) to the designated agent and include the following:

  1. Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. Identification of the material that is claimed to be infringing or claimed to be the subject of infringing activity and that is sought to be removed or access to which is sought to be disabled, and information reasonably sufficient to permit the location of the material;
  4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
  5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement, made under penalty of perjury, that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If a notice does not contain substantially all of the information described above, FIT’s designated agent will attempt to contact the complaining party and take reasonable steps to obtain a notice that complies with the DMCA. If a complaining party fails to provide the required information after such attempts, FIT is not considered on notice and reserves the right to not further follow any takedown procedures. FIT retains the discretion to comply with takedown notices that, despite minor technical errors, are made in good faith.  

Response to Infringement Claims
Following receipt of a valid DMCA notice or other good faith reports of infringement tied to FIT systems, a member of IT will attempt to identify a specific user assigned to the IP address during the timeframe identified, if not otherwise already known.

  1. If FIT is unable to identify a specific FIT student, employee, or other FIT community member associated with the IP address during the timeframe at issue, an assigned IT employee will remove or verify the removal of the copyrighted information if the computer or device can be identified as an FIT-issued computer by the IP address.
  2. If FIT is able to identify a specific FIT student, employee, or other FIT community member associated with the IP address during the timeframe at issue, the procedure will continue as outlined below.

Claimed Infringement Involving an FIT Student
The designated agent or designee will contact the Dean of Students or designee with the receipt of the claimed infringement and the name of the individual identified.  

First Offense

  1. The Dean of Students or designee will email the student a cease and desist notification regarding this alleged infringement and will notify the student by email regarding the claimed infringement. The student is directed via email to remove any materials which violate the FIT Computer and Network Use policy from their device(s).
  2. Student is expected to comply within 72 hours.
  3. Should the student fail to comply, a second notice will be sent out via the Dean of Students or designee.
  4. A third notice will include a summons to meet with the Dean of Students or designee to discuss the allegation. During the meeting, the student will be informed of FIT’s Computer and Network Use policy as well as processes involving policy violations.
  5. Following the meeting, the incident will be kept on file. A follow-up communique will be sent to the student with no further action required.

Second and Subsequent Offenses

  1. The Dean of Students or designee notifies the student by email of the claimed infringement and the student is directed to attend a meeting.
  2. During the meeting, the student will be informed of FIT’s Computer and Network Use policy as well as processes involving policy violations.
  3. The student is directed to remove any materials which violate the FIT Computer and Network Use policy from their device(s) within 24 hours.
  4. The Dean of Students or designee may require the student to sign an acknowledgment related to the offense.
  5. Failure to meet with the Dean of Students or designee or engaging in repeat offenses may result in the student’s loss of access to FIT’s network as well as disciplinary action via the Code of Student Conduct.

The designated agent or administrator handling the incident records the outcome of each complaint for future reference. FIT does not notify complainants of the outcome of each complaint.

Claimed Infringement Involving an FIT Employee
The designated agent or designee will contact the Vice President for Human Resource Management & Labor Relations or designee with the receipt of the claimed infringement and the name of the individual identified.  

First Offense

  1. The Office of Human Resources (HR) notifies the employee by email of the receipt of a claimed infringement.
  2. The employee is directed to meet with their Human Resources Generalist or designee to discuss the complaint.
  3. During the meeting, the employee will be informed of applicable college policies, including FIT’s Computer and Network Use policy.
  4. The employee is directed to remove any offending materials from their device. If the offending device is an FIT-owned computer or device issued to the employee, an assigned IT employee will verify the removal of the copyrighted material.
  5. If the employee does not comply with the request within 72 hours of the notification by HR, access to FIT’s network may be blocked and appropriate disciplinary action may be taken as outlined in the Collective Bargaining Agreement, the Employee Code of Ethical Conduct, and FIT’s Employee Policy Manual.

Second and Subsequent Offenses 

  1. The employee is blocked from accessing the FIT’s network and if the offending device is an FIT-owned computer or device issued to the employee it is also blocked.
  2. HR notifies the employee and their supervisor and/or department/division head by email of the receipt of a claimed infringement.
  3. The employee must meet with their Human Resources Generalist or designee to discuss the nature of the complaint to have access to the FIT network restored. Network access is restored for the device during normal business hours.
  4. During the meeting, the employee will be informed of applicable college policies, including FIT’s Computer and Network Use policy.
  5. The employee is directed to remove any offending materials from their device. If the offending device is an FIT-owned computer or device issued to the employee, an assigned IT employee will verify the removal of the copyrighted information.
  6. HR and the employee’s supervisor and/or department/division head determines additional disciplinary action to be taken as outlined in the Collective Bargaining Agreement, the Employee Code of Ethical Conduct, and FIT’s Employee Policy Manual.
  7. The employee’s Human Resources Generalist or designee will email and authorize the Division of Information Technology to restore network access after meeting with the employee. Network access is restored for the device during normal business hours.

The designated agent or administrator handling the incident records the outcome of each complaint for future reference. FIT does not notify complainants of the outcome of each complaint.

Claimed Infringement Involving Other Members of the FIT Community (Contractors, Vendors, Volunteers, Guests, etc.)
The designated agent will, after consultation with the Office of General Counsel, contact the relevant Vice President or other department head most closely associated with the alleged infringer. The administrative processes involved will vary depending on the nature of the notice or report, the role of the FIT community member, and any contractual or other legal relationship governing the connection between the alleged infringer and FIT. Appropriate remedies may include but are not limited to, termination of a contractual relationship, suspension or termination of access to FIT’s systems, suspension or termination of access to FIT’s campus, and increased supervision or other technical controls.       

Higher Education Opportunity Act
The Higher Education Opportunity Act requires academic institutions to notify and educate their communities on copyright infringement, including through the adoption of a plan to address peer-to-peer file sharing. FIT has adopted the following approach to comply with the HEOA and share information with its community:

  • Notifying and educating all users on copyright and DMCA issues
  • Preventing inappropriate use of peer-to-peer (P2P) programs and software through utilization of a variety of technologies to deter the behavior, and
  • Suggesting alternatives for downloading programs (Pandora, iTunes, etc.).

For education, on an annual basis FIT sends an email regarding P2P file sharing, DMCA, and copyright infringement to all FIT students and employees. This email includes a link to FIT’s Computer and Network Use policy, which itself states that unauthorized distribution of copyrighted material may bring civil and criminal penalties, a summary of those penalties, and includes the college’s policies on this topic. Additionally, for students, a copy of the Computer and Network Use policy is included in the Students Rights and Responsibilities Handbook, distributed to all students, and by the Vice President of Enrollment Management & Student Success or designee during the new student orientations. Every new employee is directed to review all college policies, including the Computer and Network Use policy, by the Office of Human Resources via the new hire onboarding HR webpage.

For preventing inappropriate use of P2P and copyright infringement, we employ a bandwidth-shaping technology to prioritize network traffic and limiting the amount of bandwidth available to P2P applications.

For alternatives for downloading programs, the list of P2P alternatives from EDUCAUSE is provided in the annual email and suggested during orientation sessions.