Click on the policies below to learn more about them.
Fair Use and Copyrighted Material
The Office of General Council establishes guidelines for fair use of copyrighted material for the entire university. For a full explanation please download their PDF: Copyright and Fair Use: A Guide for the Harvard Community or visit their website here: Copyright and Fair use.
What is “fair use”?
Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner. The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster. It allows one to use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from their works. Together with other features of copyright law like the idea/expression dichotomy discussed above, fair use reconciles the copyright statute with the First Amendment.
What is the test for fair use?
The fair use defense is now codified in Section 107 of the Copyright Act. The statutory formulation is intended to carry forward the fair use doctrine long recognized by the courts. The statute provides that fair use of a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use, scholarship, or research)” is not an infringement of copyright. To determine whether a given use is fair use, the statute directs, one must consider the following four factors:
• The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.
These factors are not exclusive, but are the primary—and in many cases the only—factors courts examine.
What are the rules for performing a musical or literary work, or showing a film or video, in class?
Apart from fair use, the Copyright Act contains a special provision, Section 110(1), that allows teachers to perform or display a copyrighted work, either live or recorded, “in the course of face-to-face teaching activities . . . in a classroom or similar place devoted to instruction.” Thus, you can use sound recordings, live performances, readings, films or videotapes, slides or any other performance or display of copyrighted works without restriction and without permission, so long as you are teaching students in a classroom or similar place such as a studio. The only exception is that you may not use a film or videotape that you have reason to believe is an illegally made copy.
Note, however, that this special classroom dispensation applies to performance and display only; it does not authorize making copies. Nor does it enable you to put materials on your web page, even for course use, because websites are not considered “face-to-face teaching.” Similarly, if you wish to videotape a class session in which you have performed or displayed others’ copyrighted material and to transmit the video to remote students (e.g., via streaming), a different set of considerations comes into play. Amended by the TEACH Act in 2002, Section 110(2) of the Copyright Act provides a special exemption for such distance learning activities. The exemption is conditioned on a detailed set of requirements. You can find useful descriptions of the TEACH Act requirements at http://www.ala.org/advocacy/copyright/teachact/distanceeducation. If you cannot meet all of the TEACH Act requirements, you may be able to rely on fair use, if the statutory four factor test is satisfied, or you should obtain permission to use the copyrighted material in the video of your class session.
Computer & Network Resources Usage Agreement
No one may use a computer and/or the network in a way that would damage or inappropriately degrade these resources, or disrupt the work of others. Students are prohibited from attempting to:
- Interfere with the work of others
- Gain unauthorized access to computer or network resources
- Circumvent or violate local network, electronic accounts, or web security systems
- Use other people’s Harvard Law School electronic accounts
- Damage or inappropriately degrade performance of computer and network resources
- Willfully misrepresent the identifying attributes of any electronic communications (e.g., date and time of creation or transmission, message identification number, IP address, etc.)
- Unlawfully use, duplicate, or distribute software and files
- Use computer or network resources for commercial purposes without authorization
- Use computer or network resources in violation of any applicable law or Harvard Law School policy
In addition to possible disciplinary action and/or termination of network privileges, the violation of any of these restrictions may result in legal penalties.
Users are responsible for the use of their electronic accounts (e.g., email, network, course web sites, and printing) and are not permitted to grant others access to these accounts. Nor should you disclose your password to anyone, including your friends or family. ITS staff will not ask for your password when ITS assistance is requested. ITS does not share users’ passwords.
The University prohibits the use of the Harvard network for illegal activities. Federal law prohibits the reproduction, distribution, public display or public performance of copyrighted materials over the Internet without permission of the copyright holder, except in accordance with fair use or other specifically applicable statutory exceptions. Harvard may terminate the network access of users who are found to have repeatedly infringed the copyrights of others. In addition, unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject a student to civil and criminal liabilities. Harvard complies fully with the federal Digital Millennium Copyright Act of 1998 (“DMCA”) and has in place the mandated process for receiving and tracking alleged incidents of copyright infringement.
Harvard network users should be aware of recent changes in the pre-subpoena notification approach employed by the Recording Industry Association of America (RIAA). These changes include notices requesting the preservation of records in advance of a subpoena, and notices providing an option for users to settle in advance of potential lawsuits. University policy remains unchanged. We will continue to comply with the Digital Millennium Copyright Act and federal law pertaining to DMCA subpoenas, and will continue to update the community of significant changes to process or law.
The University is committed to maintaining the integrity and availability of the Harvard network for vital educational and research purposes for which it was designed. We recommend that all students become familiar with the laws pertaining to the use of digital material and to comply with federal law and University policy regarding use of copyrighted materials. More information may be found on Harvard’s Digital Millennium Copyright Act page.
BitTorrent, Gnutella, eDonkey, and other filesharing programs can transmit files on a student’s computer to others in violation of copyright laws, with or without the student’s knowledge. If these programs are on a student’s computer, he or she will be held responsible for any copyright violations that may result.
Electronic communications, communicative attributes of electronic communications (e.g., date and time of transmission, subject, identification number, parties with whom a student communicates, how often, etc.), and files stored on Harvard Law School servers will be kept confidential in accordance with privacy policies set by Harvard Law School, Harvard University, and by law.
Effective March 31, 2014, Harvard established a policy that sets out guidelines and processes for University access to user electronic information stored in or transmitted through any University system. This policy applies to all Schools and units of the University and can be found at: Policy On Access to Electronic Information.
Users should understand that no network is perfectly secure, and that there are substantial risks that communications can be intercepted, or that any message intended for one person can be easily forwarded to another by the recipient. Users should take care that particularly sensitive documents not remain on computer or network systems that are publicly accessible or that others may easily access. Likewise, users are responsible prior to forwarding a message for ensuring that doing so is consistent with the originator’s reasonable expectations.
Network-based system activity, such as network connection and email message transmission, is automatically logged on a continuous basis. These logs include a record of user processes, message subjects, and other user-related data that may be examined by ITS system administrators to maintain system performance and/or prevent damage or degradation, or to ensure compliance with Harvard Law School guidelines. ITS also maintains regular backups of network servers, including email messages and files. The purpose of these backups is to restore the system in case of data loss due to a system crash. These backups are subject to the same privacy protections as any network data, but also, obviously, present additional risk.
The rules governing whether electronic communications may be anonymous or pseudonymous are determined by the particular context within which the communication occurs, and the violation of such rules may result in disciplinary action. Three general rules, however, govern all electronic communications:
- Electronic communication systems, whether email or discussion groups, produce records that facilitate the ability to trace such communications. These records may not in all cases reveal the identity of the sender, but they do facilitate the identification of a particular communication’s origin. You are prohibited from modifying this data in a manner that will interfere with the ability to trace a communication.
- Members of the Law School community are given accounts based on their legal names; you may not take steps to hide your identity in electronic communication when using Law School accounts, computers, networks or servers.
- In no context may you fraudulently misrepresent your identity.
In accordance with “Rights and Responsibilities” written in Appendix A of the Harvard Law School Catalog, the Law School neither endorses nor censors any opinion expressed on, or originated on, its computer systems or network. However, because the electronic communications originating from Harvard Law School community automatically carry the Harvard Law School domain name (“law.harvard.edu”), you should be particularly careful not to inaccurately identify yourself as representing or speaking for the institution. More generally, in the use of email or other electronic communication, the same standards of conduct governing the use of telephones, oral, and written communication apply. You may not use email to broadcast messages or “spam” the Harvard Law School community.
As with any Law School resource, “misuse” includes the theft or deliberate damage of any Harvard Law School equipment or resource. With regard to Harvard Law School computer and network resources, it also includes other activities that interfere with the efficient and reliable provision of computer and network services.
All Harvard users must respect the copyrights in works that are accessible through computers connected to the Harvard network. Federal copyright law prohibits the reproduction, distribution, public display or public performance of copyrighted materials without permission of the copyright owner, unless fair use or another exemption under copyright law applies. In appropriate circumstances, Harvard will terminate the network access of users who are found to have repeatedly infringed the copyrights of others, and may also take disciplinary action.
Users may not install software on Harvard owned and operated computers without evidence of a valid software license or other right or privilege to install such software.
Whenever a case of misconduct is suspected by or reported to ITS, ITS will immediately notify the person or persons accused of such misconduct and the appropriate supervisory authority, such as the Dean of Students or the Dean for Administration. As the situation warrants, the supervisory authority will determine the course of any investigation or disciplinary action. After such notification and while any inquiry is pending, ITS has the right to deny access to Harvard Law School equipment and network services to any person or persons believed to be violating the guidelines set forth here.
In addition to possible disciplinary action on the part of the Harvard Law School and/or termination of network privileges, misuse of electronic communications, use of computers for unlawful purposes, and violations of copyright laws carry civil and criminal penalties under Massachusetts and federal law. All users are expected to learn and abide by these laws. Harvard’s policy is to cooperate with law enforcement officials in the detection, investigation, and prosecution of unlawful activity. Unless lawfully prohibited by the authorities, you will be notified if information specific to your account or communications is turned over to non-Harvard authorities.
Before you leave Harvard Law School, you must remove all software for which the license belongs to Harvard Law School that is installed on your personally owned computer(s).
Electronic Copyright Violation Policies
Under the terms of the Digital Millennium Copyright Act, Harvard must respond to notifications of infringing content on its network, and implement a policy that provides for the restriction or termination of network services for repeat offenders. In accordance with the HLS Network Usage Agreement, which states:
“In appropriate circumstances, Harvard will terminate the network access of users who are found to have repeatedly infringed the copyrights of others, and may also take disciplinary action.” Violators are subject to the following consequences:
First violation: warning. User must remove infringing content and assert in writing their commitment to upholding copyright and acceptable use policy (see Electronic Copyright First Violation Student Agreement). Failure to respond to the warning within 7 days will result in the suspension of network privileges until the matter is resolved.
Second violation: immediate temporary suspension of HLS network privileges. User will not be able to register their computer system(s) for use on the HLS network for a period of 90 days.
Third violation: indicates a serious disregard for HLS policy, appropriate use of HLS network resources, and for federal copyright law. Your network privileges will be immediately suspended indefinitely. A permanent loss of HLS network privileges may be incurred and matter is referred to the Dean of Students for possible disciplinary action.
Violators may also be criminally liable for their actions and be subject to other fines, civil damages and prosecution as applicable by law.
If you think your second violation may be the result of a security compromise that allows a third party to share copyrighted material via your personal computer without your knowledge, you may appeal the standard 90-day suspension. Your network privileges will be suspended while the matter is investigated. If it is determined that the violation was in fact the result of a security compromise and the content was being shared without your knowledge, your network privileges will be reinstated after 30 days from the date of the notice. If no evidence of a security compromise is found, your network privileges will be suspended for the full 90 days.
Harvard Information Security Policy
Harvard Law School subscribes to the university-wide policy regarding Information Security.
To learn more about this policy, please see the official page managed by Harvard University IT.