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tor-dmca-response.wml

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<h2>Response template for Tor relay operator to ISP</h2>
<hr>
Written by the Electronic Frontier Foundation (<a
href="https://www.eff.org">EFF</a>). Last updated May 31, 2011.
Note to Tor relay operators: In this litigious era, anyone providing
routing services may face copyright complaints for transmitted content.
Fortunately, the Digital Millennium Copyright Act safe harbors should
provide protections from many of them both to you and to your upstream
provider. If your Internet host forwards a DMCA copyright complaint to
you, you can use this template to write a response, though you will need
to customize it to your situation. Please also ensure all the statements
are true for you. (The Tor Project has an <a
href="https://trac.torproject.org/projects/tor/wiki/TheOnionRouter/TorAbuseTemplates">abuse
collection of templates</a> to help you respond to other types of abuse
complaints, too.) Before sending any response to your ISP, you may want
to seek the advice of an attorney licensed to practice in your
jurisdiction.
This template letter is for informational purposes only and does not
constitute legal advice. Whether and how you should respond when you or
your ISP has received a DMCA notice will turn on the particular facts of
your situation. This template is intended as a starting point, but you
should tailor it to your own circumstances. In addition, 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. 
If you do not believe the safe harbors apply to your particular
situation, don't use this template as a basis for your response.
Specific information about safe harbor qualification for "transitory
digital network communications" is provided on the Chilling Effects
website <a
href="https://www.chillingeffects.org/dmca512/faq.cgi#QID586">here</a>
and also in the template, below.

Also, if you received this document from anywhere other than the EFF
web site or <a
href="<page eff/tor-dmca-response>"
title="<page eff/tor-dmca-response>"><page eff/tor-dmca-response></a>,
it may be out of date. Follow the link to get the latest version.
<blockquote>
Dear [ISP]:
Thank you for forwarding me the notice you received from [copyright
claimant] regarding [content]. I would like to assure you that I am not
hosting the claimed infringing materials, and furthermore, the Digital
Millennium Copyright Act's ("DMCA") safe harbors likely protect you from
liability arising from this complaint. The notice is likely based upon
misunderstandings about the law and about some of the software I
run.
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. &sect; 512) The
DMCA's requirements vary depending on the ISP's role. You may be
familiar with the "notice and takedown" provisions of section 512(c) of
the DMCA; however, those do not apply when an ISP merely acts as a
conduit. Instead, the "conduit" safe harbor of section 512(a) of the
DMCA has different and less burdensome eligibility requirements, as the
D.C. Circuit Court of Appeals held in RIAA v. Verizon (see <a
href="https://www.eff.org/legal/cases/RIAA_v_Verizon/opinion-20031219.pdf"
title="https://www.eff.org/legal/cases/RIAA_v_Verizon/opinion-20031219.pdf">https://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="https://w2.eff.org/IP/P2P/Charter/033802P.pdf"
title="https://w2.eff.org/IP/P2P/Charter/033802P.pdf">https://w2.eff.org/IP/P2P/Charter/033802P.pdf</a>).
Under DMCA 512(a), service providers like you are typically protected
from damages for copyright infringement claims if you also 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, and you otherwise qualify for the safe harbor, you should be
free from fear of copyright damages.

As for what makes a reasonable policy, as the law says, it's one that
terminates subscribers who are repeat infringers. The notification you
received is certainly not proof of the "repeat infringement" that is
required under the law before you need to terminate my account. In fact,
it's not even proof of any copyright infringement; a notice claiming
infringement is not the same as a determination of infringement. I have
not infringed any copyrights and do not intend to do so. Therefore, you
should continue to be protected under the DMCA 512(a) safe harbor
without taking any further action. 
You may be curious about what prompted the faulty notice. It was
likely triggered by 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 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 intermediary 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. The result is
that, unlike most other Internet traffic, the final IP address that the
recipient receives is not the IP address of the sender. Tor protects
users against hazards such as harassment, spam, and identity theft.
Initial development of Tor, including deployment of a public-use Tor
network, was a project of the U.S. Naval Research Laboratory, with
funding from ONR and DARPA. (For more on Tor, see <a
href="https://www.torproject.org/"
title="https://www.torproject.org/">https://www.torproject.org/</a>.) I
hope, as an organization committed to protecting the privacy of its
customers, 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
protections of DMCA 512 put any concerns you may have to rest. If not,
please contact me with any further questions. 
Very truly yours, 
Your customer, [User]</blockquote>

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