DMCA Response Template for Open Wireless Operators

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 both of us from liability arising from this complaint.

Because I believe a ubiquitous open Internet is an important social good, I have chosen to open my home network. Thus I, like you, am a conduit for Internet content. Under established case law, neither of us should be held liable for the infringing acts of others where we are neither encouraging nor directly benefiting from such infringement.

That said, I have chosen to avail myself of the additional protections of the DMCA safe harbors. 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. ยง 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 https://www.eff.org/sites/default/files/filenode/RIAA_v_Verizon/20030121-riaa-v-verizon-order.pdf) and the Eighth Circuit Court of Appeals confirmed in RIAA v. Charter (see https://w2.eff.org/IP/P2P/Charter/033802P.pdf).

Under DMCA 512(a), service providers are typically protected from damages for copyright infringement claims if they 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, both of us should continue to be protected under the DMCA 512(a) safe harbor without taking any further action.

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]

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