Community Counsel: General Legal Considerations

Hi, 

I am reaching out to introduce myself! I am about to spin up a machine with you to run what is called a “nym node” - think of it as somewhat similar to a Tor exit node. 

You can always recognize a nym node by our domain names: nym-exit

Nym node runners are a decentralized community all over the world. We provide secure internet traffic routing services to ordinary people and businesses via the Nym platform and NymVPN app. 

The Nym platform implements strict encryption and security standards, which also means I simply relay traffic and do not know the end-destination nor its content. 

The Nym traffic pattern is somewhat unique, as we route traffic using the “sphinx” packet format (again, think onion routing), which makes all traffic look uniform. I’d like to ensure this unique traffic pattern doesn’t raise any flags or issues with you! See https://nym.com/ for more details. 

Feel free to ask any questions. 

Many thanks, 

<YOUR_NAME/PSEUDONYM>

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 I believe that the notice is likely based upon misunderstandings about the law and about some of the software I run.  I believe that the Digital Millennium Copyright Act's ("DMCA") safe harbor provisions likely protect you from liability arising from this complaint. 

As you know, the DMCA creates four "safe harbors" for service providers (such as ISPs) to protect them from copyright liability for the acts of their users, when the service provider fulfill certain requirements. (See 17 U.S.C. 512).  The requirements to meet the DMCA safe harbor provisions vary depending on the type of safe harbor claimed. 

You may be familiar with the "notice and takedown" requirements of section 512(c) of the DMCA, which require a service provider respond to expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.  However, we believe that the more appropriate safe harbor provision is under section 512(a), which applies when the service provider merely acts as a conduit. In such case, there are different and less burdensome eligibility requirements, as the D.C. Circuit Court of Appeals held in RIAA v. Verizon (see https://scholar.google.com/scholar_case?case=15815830240179540527) and the Eighth Circuit Court of Appeals confirmed in RIAA v. Charter (see https://scholar.google.com/scholar_case?case=11547531128234336420).

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.

In this case, the copyright notice you received was likely triggered by a program I run called Nym. Nym is a network software that helps users to enhance their privacy, security, and safety online.

The program 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 Nym tunnels the connections such that no intermediary 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. Nym protects users against hazards such as harassment, spam, and identity theft. 

Nym aims to improve on technology developed by Panoramix by building a decentralized authentication and payment protocol. It will enable developers to build their own sustainable privacy-enhanced services. Panoramix is an EU-funded Horizon 2020 programme with the goal of protecting communication privacy by building a comprehensive mixnet infrastructure. This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Grant Agreement No 653497, "Privacy and Accountability in Networks via Optimized Randomized Mix-nets (Panoramix)” (For more on Nym, see https://www.nym.com/, For more on Panoramix, see https://panoramix.me/ .) I hope, as an organization committed to protecting the privacy of its customers, you'll agree that this is a valuable technology.

While the Nym node that I run may appear to be the source of material that is alleged to be infringing, I do not host that material. I do not select the material transmitted through the Nym node that I run, and I have no practical means of either identifying the source of such material or preventing its transmission. In addition, I do nothing to encourage or promote the use of the Nym network for copyright infringement or other prohibited activities. For these reasons, I am not an infringer of copyright in any materials that are transmitted through the Nym node that I run, either directly or under a theory of contributory or vicarious liability. In addition, as you are just acting as a conduit, you should continue to be protected under the DMCA 512(a) safe harbor provision 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, <YOUR_NAME/PSEUDONYM>