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[or-cvs] first cut at the dmca-response doc

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first cut at the dmca-response doc

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<h2>Response template for Tor node maintainer to ISP</h2>
<hr />
<p>Written by the Electronic Frontier
Foundation (<a href="http://www.eff.org/";>EFF</a>). Last updated 19 Feb 2005.</p>

<p>Note to Tor server operators:   In this litigous era, anyone
providing routing services may face copyright complaints under the
Digital Millennium Copyright Act. Thankfully, the DMCA safe harbors
provide immunity from many of them -- both to you and to your
upstream provider.  If your Internet host forwards a DMCA complaint
to you, here's a template you can use to write a response.  You can
tailor this to your own circumstances: if you think your host would
be disturbed to hear you're running a server on the network, you may
want to take that part out.  Of course it's up to you to comply with
your ISP's terms of service.  If you're not comfortable including so
much legal explanation, feel free to invite the ISP to contact EFF
for a fuller discussion.</p>

<p>Also, if you received this document from anywhere besides <a
it may be out of date. Follow the link to get the latest version.</p>

<hr />

<p>Dear [ISP]:</p>

<p>Thank you for forwarding me the notice you received from [copyright
claimant] regarding [content].  I would like to assure you that,
contrary to the assertions in the notice, 1) I am not hosting or
making available the claimed infringing materials, and 2) you are
already protected by the Digital Millennium Copyright Act's ("DMCA")
safe harbor from any liability arising from this complaint.   The
notice is incorrect, probably based upon misunderstandings about law
and about some of the software I run.

First, in terms of legal liability, this notice does not create any
risk for you as a service provider.  As you know, the DMCA creates
four "safe harbors" for service providers to protect them from
copyright liability for the acts of their users, when the ISPs
fulfill certain requirements. (17 U.S.C. § 512)   The DMCA's
requirements vary depending on the ISP's role.  You may be most
familiar with the "notice and takedown" provisions of DMCA 512(c),
but those apply only to content hosted on your servers, or to linking
and caching activity. The "takedown notice" provisions do not apply
when an ISP merely acts as a conduit.  Instead, the "conduit" safe
harbor of DMCA 512(a) has different and less burdensome requirements,
as the D.C. Circuit Court of Appeals held in RIAA v. Verizon (see
<a href="http://www.eff.org/legal/cases/RIAA_v_Verizon/opinion-20031219.pdf";>http://www.eff.org/legal/cases/RIAA_v_Verizon/opinion-20031219.pdf</a>)
and the Eighth Circuit Court of Appeals confirmed in RIAA v. Charter
(see <a href="http://www.eff.org/IP/P2P/Charter/033802P.pdf";>http://www.eff.org/IP/P2P/Charter/033802P.pdf</a>).

Here, any content that came from or through my computers merely
passed through your network, so DMCA 512(a) applies.  Under DMCA
512(a), you are immune from money damages for copyright infringement
claims if you maintain "a policy that provides for termination in
appropriate circumstances of subscribers and account holders of the
service provider's system or network who are repeat infringers."  If
you have and implement such a policy, you are free from fear of
copyright damages, period.

As for what makes a reasonable policy, as the law says, it's one that
only terminates subscribers who are repeat infringers. A notice
claiming infringement is not the same as a determination of
infringement. The notification you received is not proof of any
copyright infringement, and it certainly is not proof of the "repeat
infringement" that is required under the law before you need to
terminate my account.  I have not infringed any copyrights and do not
intend to do so.  Therefore, you continue to be protected under the
DMCA 512(a) safe harbor, without taking any further action.

You might be curious, though, about what did trigger the notice.  The
software that likely triggered the faulty notice is a program I run
called Tor.  Tor is network software that helps users to enhance
their privacy, security, and safety online. It does not host or make
available any content.  Rather, it is part of a network of nodes on
the Internet that simply pass packets among themselves before sending
them to their destinations, just as any Internet host does.  The
difference is that Tor tunnels the connections such that no hop can
learn both the source and destination of the packets, giving users
protection from nefarious snooping on network traffic.  Tor protects
users against hazards such as harassment, spam, and identity theft.
In fact, even the U.S. Naval Research Lab has recognized Tor's value
when it helped to fund development of the software. (For more on Tor,
see <a href="http://tor.eff.org/";>http://tor.eff.org/</a>.)  As an
organization committed to
protecting the privacy of its customers, I hope you'll agree that
this is a valuable technology.

Thank you for working with me on this matter.  As a loyal subscriber,
I appreciate your notifying me of this issue and hope that the
complete protections of DMCA 512 put any concerns you may have at
rest. If not, please contact me with any further questions.

Very truly yours,<br />
Your customer, [User]

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