REPEAT INFRINGER POLICY

Comprehensive Policy Template, Implementation Guide, and Case Law Analysis

Prepared for: [________________________________]
Prepared by: [________________________________]
Date: [__/__/____]
Matter/File No.: [________________________________]

TABLE OF CONTENTS

• Part I: Legal Framework
• Part II: Policy Statement
• Part III: Definitions
• Part IV: Strike System
• Part V: Counter-Notice and Restoration Process
• Part VI: Record-Keeping Requirements
• Part VII: Implementation Guide
• Part VIII: Case Law Analysis
• Part IX: Platform-Specific Adaptations
• Part X: Practice Tips
• Sources and References

PART I: LEGAL FRAMEWORK

1.1 The § 512(i) Requirement

Section 512(i)(1)(A) of the Digital Millennium Copyright Act ("DMCA") establishes a threshold eligibility condition for all four safe harbors under § 512. To qualify for any safe harbor, an online service provider ("OSP") must have:

"adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers."

1.2 Three Prongs of § 512(i)(1)(A)

1.3 Standard Technical Measures

In addition to the repeat infringer policy, § 512(i)(1)(B) requires that the OSP must:

"accommodate[] and [not] interfere with standard technical measures" used by copyright owners to identify or protect copyrighted works.

Standard technical measures are defined as measures that (A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process, (B) are available to any person on reasonable and nondiscriminatory terms, and (C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.

1.4 Legislative History and Purpose

The repeat infringer policy requirement was included in the DMCA to ensure that OSPs would not provide a haven for users who repeatedly infringe copyrights. Congress recognized that the safe harbor protections were a "quid pro quo" — OSPs receive immunity from secondary liability in exchange for cooperating with copyright holders and taking action against repeat offenders.

1.5 "Repeat Infringer" — Statutory Interpretation

The statute does not define "repeat infringer," which has led to significant litigation:

1.6 "Appropriate Circumstances" and "Reasonable Implementation"

The statute provides flexibility through the phrases "appropriate circumstances" and "reasonably implemented":

• "Appropriate circumstances" — Not every accusation of infringement requires termination; the OSP has discretion to evaluate the circumstances, including the credibility of the complaint and whether the user has filed a valid counter-notice
• "Reasonably implemented" — The policy need not be perfect, but it must be more than a "paper tiger"; the OSP must actually follow its own procedures and take meaningful action against repeat infringers

PART II: POLICY STATEMENT

2.1 Complete Repeat Infringer Policy (Ready to Adopt)

The following is a complete, ready-to-adopt repeat infringer policy that can be integrated into an OSP's Terms of Service, Acceptable Use Policy, or standalone Copyright/IP Policy.

COPYRIGHT REPEAT INFRINGER POLICY

Effective Date: [__/__/____]

[________________________________] ("Company," "we," "us," or "our") respects the intellectual property rights of others and expects our users to do the same. In accordance with the Digital Millennium Copyright Act of 1998 ("DMCA"), the text of which may be found on the U.S. Copyright Office website at https://www.copyright.gov/legislation/dmca.pdf, we have adopted and implemented a policy for the termination, in appropriate circumstances, of users and account holders who are repeat infringers of copyright.

1. Repeat Infringer Policy. It is our policy to terminate, in appropriate circumstances, the accounts of users who are repeat infringers of copyright. A "repeat infringer" is any user or account holder who has been the subject of more than [____] (☐ two ☐ three) valid DMCA takedown notifications within any rolling [____]-month period (☐ 12 months ☐ 6 months ☐ 24 months), or who has been found by a court of competent jurisdiction to have infringed copyright on more than one occasion.

2. Strike System. We operate a graduated strike system to address copyright infringement:

• First Strike: Written warning and removal of the infringing content. The user is notified of our repeat infringer policy.
• Second Strike: Written warning, removal of the infringing content, and temporary suspension of the user's account for [____] days (☐ 7 days ☐ 14 days ☐ 30 days).
• Third Strike: Termination of the user's account and permanent ban from our service. We reserve the right to refuse to create new accounts for users previously terminated under this policy.

3. Counter-Notice and Strike Reversal. If a user files a valid counter-notification pursuant to 17 U.S.C. § 512(g) and the original notifying party does not file a federal court action within ten (10) business days, the strike associated with that notification will be reversed and the content will be restored in accordance with the DMCA.

4. Discretion. We reserve the right, in our sole discretion, to terminate any user's account at any time for any infringement of copyright, with or without prior notice, if we believe it is appropriate under the circumstances. Circumstances that may warrant immediate termination without following the graduated strike process include, but are not limited to: (a) clear evidence of willful or commercial-scale infringement; (b) uploading of content known to be infringing; (c) use of our service as part of a scheme to facilitate infringement; or (d) court orders or injunctions requiring termination.

5. Designated Agent. To report copyright infringement on our service, please send a DMCA notification to our Designated Agent:

[________________________________] (Agent Name)
[________________________________] (Company Name)
[________________________________] (Street Address)
[________________________________] (City, State, ZIP)
[________________________________] (Email)
[________________________________] (Telephone)

Our Designated Agent is registered with the U.S. Copyright Office. Registration can be verified at: https://www.copyright.gov/dmca-directory/

6. Misuse Warning. Pursuant to 17 U.S.C. § 512(f), any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages, including costs and attorneys' fees incurred by us, the alleged infringer, or any copyright owner or authorized licensee who is injured by such misrepresentation.

7. Accommodation of Standard Technical Measures. We accommodate and do not interfere with standard technical measures used by copyright owners to identify or protect copyrighted works, as defined in 17 U.S.C. § 512(i)(2).

8. Modifications. We reserve the right to modify this policy at any time. Changes will be effective upon posting to our website. Continued use of our service following the posting of changes constitutes acceptance of such changes.

2.2 Abbreviated Policy Clause (For Insertion into Terms of Service)

For OSPs that prefer a shorter clause within their Terms of Service:

Copyright Infringement and Repeat Infringer Policy. We respect copyright and comply with the Digital Millennium Copyright Act (DMCA). We have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the copyrights of others. If you believe that content on our service infringes your copyright, please contact our Designated Agent at [________________________________]. DMCA notifications must comply with 17 U.S.C. § 512(c)(3). Knowingly submitting a materially false infringement notification may subject you to liability under 17 U.S.C. § 512(f). For our complete Copyright Policy, including our repeat infringer policy and counter-notice procedures, please visit [________________________________] (URL).

PART III: DEFINITIONS

3.1 Key Terms

3.2 Determining Whether a Notification is "Valid"

A notification is considered "valid" for strike purposes if it substantially complies with § 512(c)(3)(A), which requires:

• ☐ Physical or electronic signature of an authorized person
• ☐ Identification of the copyrighted work claimed to be infringed
• ☐ Identification of the infringing material with information sufficient to locate it
• ☐ Contact information for the complaining party
• ☐ Good-faith belief statement
• ☐ Accuracy and authorization statement under penalty of perjury

Practice Note: A notification that fails to substantially comply with elements (1), (5), or (6) of § 512(c)(3)(A), but substantially complies with (2), (3), and (4), triggers a duty under § 512(c)(3)(B)(i) for the OSP to promptly attempt to contact the complaining party to assist in receipt of a compliant notification. Such a deficient notice should not result in a strike unless and until it is cured.

PART IV: STRIKE SYSTEM

4.1 Graduated Response Framework

The following graduated response framework balances the rights of copyright holders, users, and the OSP:

4.2 Strike Assignment Rules

(a) One strike per notification. Each valid DMCA notification results in a single strike, regardless of how many individual works or URLs are identified in the notification.

☐ Alternative: One strike per work. Each copyrighted work identified in a valid DMCA notification results in a separate strike.

(b) Rolling period. Strikes are tracked over a rolling [____]-month period (☐ 6 months ☐ 12 months ☐ 24 months). Strikes older than the rolling period are expired and no longer count toward the repeat infringer threshold.

(c) Strike expiration. A strike that has been on file for more than [____] months shall expire and no longer count toward the repeat infringer threshold, provided the user has not received any new strikes during that period.

(d) Multiple accounts. If the OSP determines that a user has created multiple accounts to circumvent the repeat infringer policy, all associated accounts may be terminated.

4.3 Immediate Termination Circumstances

The OSP may bypass the graduated strike system and immediately terminate a user's account in the following circumstances:

• ☐ Evidence of willful, commercial-scale, or systematic infringement
• ☐ Use of the service to operate a piracy or file-sharing operation
• ☐ Court order or injunction requiring termination
• ☐ User has been previously terminated and created a new account
• ☐ User's conduct poses a risk of substantial liability to the OSP
• ☐ User uploads content known to be infringing (e.g., pre-release copyrighted works, cam recordings)

4.4 Account Reinstatement

☐ No reinstatement. Users whose accounts are terminated under the repeat infringer policy are permanently barred from creating new accounts or using the service.

☐ Reinstatement available. Users whose accounts are terminated may apply for reinstatement after [____] months by submitting a written request demonstrating that they understand and will comply with the copyright policy. Reinstatement is at the sole discretion of the OSP.

PART V: COUNTER-NOTICE AND RESTORATION PROCESS

5.1 Counter-Notice Processing

When the OSP receives a valid counter-notice under § 512(g)(3):

5.2 Strike Reversal Upon Successful Counter-Notice

(a) If a counter-notice is filed and the original notifying party does not file a federal court action within 10 business days:

• ☐ The strike associated with that notification is automatically reversed
• ☐ The content is restored
• ☐ Any account suspension imposed as a result of that strike is lifted

(b) If a counter-notice is filed but the original notifying party files a federal court action within 10 business days:

• ☐ The strike remains pending until the court resolves the dispute
• ☐ The content remains removed
• ☐ The strike is reversed if the court rules in favor of the subscriber

5.3 Impact on Repeat Infringer Status

A reversed strike shall not count toward the repeat infringer threshold. However, an OSP may consider the totality of circumstances, including patterns of takedowns and counter-notices, in assessing whether a user's conduct warrants further action.

PART VI: RECORD-KEEPING REQUIREMENTS

6.1 Required Records

The OSP should maintain the following records to demonstrate adoption and reasonable implementation of its repeat infringer policy:

• ☐ Policy documentation — Current and prior versions of the repeat infringer policy, with effective dates
• ☐ DMCA notifications received — Complete copies of all takedown notices, with date of receipt, action taken, and date of action
• ☐ Counter-notices received — Complete copies of all counter-notices, with date of receipt, forwarding date, and outcome
• ☐ Strike log — Record of all strikes assigned, including user account, date, associated notification, and current status (active, expired, reversed)
• ☐ Account actions — Records of all warnings, suspensions, and terminations, with dates and reasons
• ☐ Communication log — Copies of all notifications sent to users regarding strikes, suspensions, and terminations
• ☐ Designated agent registration — Current and historical Copyright Office registrations

6.2 Record Retention Period

Records should be maintained for a minimum of:

• ☐ [____] years from the date of creation (recommended minimum: 5 years)
• ☐ The duration of any pending litigation plus [____] years
• ☐ As required by applicable legal hold obligations

6.3 Record Format

• ☐ Electronic records are acceptable and preferred for searchability
• ☐ Records should be stored in a secure, backed-up system
• ☐ Records should be organized to allow retrieval by user account, date, or notification

6.4 Audit Trail

The OSP should maintain an audit trail showing:

• ☐ Who processed each DMCA notification and counter-notice
• ☐ When content was removed and when (if applicable) it was restored
• ☐ When strikes were assigned and when they were reversed or expired
• ☐ When account actions (warnings, suspensions, terminations) were taken
• ☐ Who approved each account action

Practice Tip: Maintaining detailed records is critical for demonstrating "reasonable implementation" if the OSP's safe harbor status is challenged. In BMG v. Cox, the court found that Cox's failure to maintain consistent records of its enforcement actions contributed to its loss of safe harbor protection.

PART VII: IMPLEMENTATION GUIDE

7.1 Where to Publish the Policy

The repeat infringer policy should be published in at least the following locations:

• ☐ Terms of Service / Terms of Use — Include the full policy or a summary with a link to the complete policy
• ☐ Acceptable Use Policy — If the OSP maintains a separate AUP, include a cross-reference
• ☐ Copyright Policy / DMCA Policy — A standalone copyright policy page containing the full repeat infringer policy, designated agent information, and instructions for filing notifications and counter-notices
• ☐ Website footer — Include a link to the copyright policy page
• ☐ Account registration flow — Require new users to acknowledge the repeat infringer policy during account creation
• ☐ Help center / FAQ — Include a summary of the policy and links to the full text

7.2 How to Inform Subscribers

Under § 512(i)(1)(A), the OSP must "inform[] subscribers and account holders" of the policy. Methods include:

• ☐ Terms of Service agreement — Require users to accept terms that include or reference the repeat infringer policy
• ☐ Email notification — Send an email to all existing users when the policy is adopted or materially changed
• ☐ In-app/on-site notification — Display a notification or banner when users log in
• ☐ Strike notifications — Include the full repeat infringer policy (or a link) in every strike notification sent to users

7.3 Integration with Existing Terms of Service

To integrate the repeat infringer policy into existing Terms of Service:

Option A: Inline Integration

Insert the complete policy (Section 2.1 above) directly into the Terms of Service under a "Copyright Policy" or "Intellectual Property" section.

Option B: Incorporation by Reference

Include the following clause in the Terms of Service:

"Our Copyright Policy, including our Repeat Infringer Policy, is incorporated into these Terms of Service by reference. Our Copyright Policy is available at [________________________________] (URL). By using our service, you acknowledge and agree to comply with our Copyright Policy."

Option C: Standalone Policy with Cross-Reference

Maintain the repeat infringer policy as a standalone document and cross-reference it from the Terms of Service, the Acceptable Use Policy, and the website footer.

7.4 Internal Implementation Checklist

• ☐ Designate a DMCA agent and register with the U.S. Copyright Office
• ☐ Publish designated agent contact information on the website
• ☐ Adopt a written repeat infringer policy
• ☐ Publish the policy in the Terms of Service, website, and Copyright Policy page
• ☐ Set up a system to receive and process DMCA notifications (dedicated email, web form, or portal)
• ☐ Set up a strike tracking system (database, spreadsheet, or dedicated software)
• ☐ Create notification templates for warnings, suspensions, and terminations
• ☐ Train staff responsible for processing DMCA notifications
• ☐ Establish internal procedures for evaluating the validity of notifications
• ☐ Establish internal procedures for processing counter-notices
• ☐ Set up automated reminders for the 10-business-day putback window
• ☐ Conduct periodic audits of policy compliance

7.5 Notification Templates

Strike 1 — Warning Notification:

Subject: Copyright Infringement Notice — Warning ([Platform Name])

Dear [User],

We have received a valid DMCA takedown notification regarding content associated with your account. In accordance with the DMCA and our Copyright Policy, we have removed the following content:

[Description/URL of removed content]

This is your first copyright strike. Under our Repeat Infringer Policy, users who receive [____] or more copyright strikes within a [____]-month period may have their accounts suspended or permanently terminated.

If you believe this takedown was issued in error, you may file a counter-notice. Instructions are available at [URL] and in the attached document.

For more information about our Copyright Policy, please visit [URL].

Strike 2 — Suspension Notification:

Subject: Copyright Infringement Notice — Account Suspended ([Platform Name])

Dear [User],

We have received a second valid DMCA takedown notification regarding content associated with your account. This is your second copyright strike within the past [____] months.

In accordance with our Repeat Infringer Policy, your account has been suspended for [____] days effective immediately. During the suspension period, you will not be able to [upload content / post / access your account / etc.].

The following content has been removed: [Description/URL]

IMPORTANT: A third copyright strike will result in permanent termination of your account.

If you believe this takedown was issued in error, you may file a counter-notice. Instructions are available at [URL].

Strike 3 — Termination Notification:

Subject: Copyright Infringement Notice — Account Terminated ([Platform Name])

Dear [User],

We have received a third valid DMCA takedown notification regarding content associated with your account within the past [____] months. This constitutes your third copyright strike.

In accordance with our Repeat Infringer Policy, your account has been permanently terminated effective immediately. You are no longer authorized to use our service, and you may not create a new account.

If you believe any of the takedowns were issued in error, you may file counter-notices for the respective takedowns. Instructions are available at [URL]. If a counter-notice results in the reversal of a strike, we will review whether reinstatement of your account is appropriate.

PART VIII: CASE LAW ANALYSIS

8.1 Key Cases on Repeat Infringer Policies

BMG Rights Management (US) LLC v. Cox Communications, Inc., 881 F.3d 293 (4th Cir. 2018)

UMG Recordings, Inc. v. Grande Communications Networks, LLC, No. 1:17-cv-00365 (W.D. Tex. 2019)

Capitol Records, Inc. v. Vimeo, LLC, 826 F.3d 78 (2d Cir. 2016)

Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004)

Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007)

8.2 Lessons from the Case Law

8.3 Pending Supreme Court Review: Cox Communications v. Sony Music Entertainment

The Supreme Court granted certiorari in Cox Communications, Inc. v. Sony Music Entertainment during its October 2025 term. The case addresses whether the statutory damages provision of 17 U.S.C. § 504(c) permits a damages award based on the number of works infringed by a service provider's subscribers when the service provider was found vicariously liable. The decision may also address the scope of secondary liability for ISPs that fail to implement repeat infringer policies. Practitioners should monitor this case for developments that may affect § 512(i) analysis.

PART IX: PLATFORM-SPECIFIC ADAPTATIONS

9.1 Internet Service Providers (ISPs)

9.2 Hosting Providers / Cloud Platforms

9.3 Social Media Platforms

9.4 Online Marketplaces

9.5 Search Engines and Directories

PART X: PRACTICE TIPS

10.1 Drafting the Policy

1. Be specific but retain discretion. Define the number of strikes and the rolling period, but include language reserving the right to take action "in appropriate circumstances" beyond the strict strike count.

2. Address counter-notices expressly. A policy that does not address what happens when a counter-notice is filed is incomplete. Specify that a successful counter-notice reverses the associated strike.

3. Include the designated agent information. The policy should include the designated agent's name, address, email, and phone number, matching the information on file with the U.S. Copyright Office.

4. Do not auto-delete infringement notices. BMG v. Cox demonstrated that systematically deleting infringement notices is catastrophic for safe harbor defense.

5. Align with actual practice. The biggest risk is having a policy on paper that is not followed in practice. If the policy says "three strikes," then three strikes must actually lead to termination.

10.2 Implementing the Policy

6. Train your team. Ensure that all personnel responsible for processing DMCA notifications understand the policy, the statutory requirements, and the internal procedures.

7. Use a tracking system. Implement a database or software system to track strikes, counter-notices, account actions, and timelines. Spreadsheets may be adequate for small platforms; larger platforms should invest in dedicated tools.

8. Conduct periodic audits. Regularly review the policy's implementation to ensure compliance. Identify and address any gaps between the written policy and actual practice.

9. Keep your designated agent registration current. The Copyright Office requires renewal every three years. Set calendar reminders well in advance.

10. Respond to all valid notifications. Every valid DMCA notification should be processed and documented, even if the volume is high. Failing to process notifications undermines the safe harbor defense.

10.3 Avoiding Common Pitfalls

11. Never reactivate terminated accounts without justification. If an account is terminated under the repeat infringer policy, do not reactivate it to retain the customer (as Cox did).

12. Do not rely solely on automated systems. While automated content identification tools (like YouTube's Content ID) are valuable, they should be supplemented with human review, especially for edge cases and counter-notices.

13. Balance enforcement with user rights. An overly aggressive policy may expose the OSP to § 512(f) liability if it leads to improper removals, while an overly lax policy may jeopardize safe harbor protection.

14. Document, document, document. If the OSP's safe harbor is ever challenged, the court will examine the evidence of implementation. Detailed records of every notification, action, and decision are essential.

15. Monitor evolving legal standards. The law in this area continues to develop. Follow the Supreme Court's decision in Cox v. Sony and other pending cases that may refine the "reasonable implementation" standard.

SOURCES AND REFERENCES

Statutes

• 17 U.S.C. § 106 — Exclusive Rights in Copyrighted Works
• 17 U.S.C. § 504(c) — Statutory Damages
• 17 U.S.C. § 512 — Limitations on Liability Relating to Material Online
• 17 U.S.C. § 512(c) — Information Residing on Systems or Networks at Direction of Users
• 17 U.S.C. § 512(c)(2) — Designated Agent
• 17 U.S.C. § 512(c)(3) — Elements of Notification
• 17 U.S.C. § 512(f) — Misrepresentations
• 17 U.S.C. § 512(g) — Replacement of Removed or Disabled Material
• 17 U.S.C. § 512(g)(3) — Counter-Notification Elements
• 17 U.S.C. § 512(i) — Conditions for Eligibility
• 17 U.S.C. § 512(i)(2) — Standard Technical Measures

Key Cases

• BMG Rights Management (US) LLC v. Cox Communications, Inc., 881 F.3d 293 (4th Cir. 2018)
• UMG Recordings, Inc. v. Grande Communications Networks, LLC, No. 1:17-cv-00365 (W.D. Tex. 2019)
• Capitol Records, Inc. v. Vimeo, LLC, 826 F.3d 78 (2d Cir. 2016)
• Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004)
• Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007)
• Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016)
• Cox Communications, Inc. v. Sony Music Entertainment (U.S. Supreme Court, cert. granted, Oct. Term 2025)

Government Resources

• U.S. Copyright Office — DMCA Designated Agent Directory: https://www.copyright.gov/dmca-directory/
• U.S. Copyright Office — Section 512 Study: https://www.copyright.gov/512/
• U.S. Copyright Office — Section 512 Full Report (2020): https://www.copyright.gov/policy/section512/section-512-full-report.pdf
• Library of Congress — DMCA Safe Harbor Legal Overview: https://www.congress.gov/crs-product/IF11478

Practice Resources

• Electronic Frontier Foundation — DMCA Resources: https://www.eff.org/issues/dmca
• Harvard Journal of Law & Technology — BMG v. Cox Analysis: https://jolt.law.harvard.edu/digest/bmg-v-cox-court-of-appeals-denies-dmca-safe-harbor-in-landmark-copyright-case

DISCLAIMER: This template is provided for informational purposes only and does not constitute legal advice. The use of this template does not create an attorney-client relationship. Laws and procedures change frequently, and the applicability of this template to specific facts may vary. You must have this template reviewed and customized by a qualified attorney licensed in your jurisdiction before use. ezel.ai is not a law firm and does not provide legal services.

Template prepared for ezel.ai — Legal Template Repository for Solo Practitioners
Last Updated: 2026-02-26