The Digital Millennium Copyright Act (“DMCA“) protects businesses operating on the Internet (called “Service Providers”) from liability for copyright infringement for the actions of their users under certain conditions.  Whether you realize it or not, you are probably familiar with the DMCA process, which is implemented through a notice-and-takedown procedure present on practically every website that allows users to upload content. We’ve previously discussed the DMCA here.

To be protected by the DMCA’s “Safe Harbor” provisions, a website operator must take a few simple steps.   Essentially, a service provider may qualify for protection under the DMCA Safe Harbor if it does not actually know about the copyright infringement, does not benefit from the infringement, and promptly removes any infringing materials upon discovery. In addition, the service provider must designate an agent to receive notifications of claimed copyright infringement under the DMCA, make certain contact information of the agent available to the public on its website, and register the designated agent with the U.S. Copyright Office.  It is this last requirement–designating an agent with the Copyright Office–that is changing.

No DMCA safe harbor, unless you have a properly registered designated agent with the Copyright Office!

Registering a DMCA Designated Agent

For almost the last two decades, the Copyright Office ran the designated agent database using a paper-based “interim” system.  Service providers were required to mail-in paper applications, which were scanned into a searchable database.  The Copyright Office charged a fee of about $100 to designate an agent.  Perhaps not surprisingly, many website operators, even those that listed agents on their websites, do not appear to have submitted the paper application and fee.  And, according to the Copyright Office, much of the information in the paper-based system is incorrect or out of date.  As one company found out the hard way, service providers that fail to do so are not protected by the safe harbor and may be liable for their user’s copyright infringement activity.

It was always ironic that the Copyright Office implemented the Digital Millennium Copyright Act using a paper system, but as of December 1, 2016, the Copyright Office has moved into the 21st century with a new online registration service for designating agents.  And it is an enormous improvement!

Service providers (or their attorneys) wishing to designate agents can now create an account on the Copyright Office’s new system (sadly, existing logins do not appear to work). Using the new system, agents can be designated quickly and easily online.  As an extra bonus, the registration fee has been reduced from $105 to only $6. There is no excuse not to register or update your designated agent information.

Old DMCA designated agents will expire on December 31, 2017!

While the new system is a welcome development, it comes with a few important issues that service providers must keep in mind to avoid losing their protection under the DMCA.  First, service providers who have already registered their designated agents using the paper process have until December 31, 2017 to re-register using the online system.  Designations done by paper will expire at that time, so a service provider that fails to register online by the end of 2017 will lose its safe harbor protection on January 1, 2018.

Second, the Copyright Office now requires periodic renewal of designated agent registrations.  The office views this as a positive development meant to ensure that the information in its database is (at least moderately) up-to-date.  But for the business owner, the renewal requirement is a chance to forget a once-every-three-year deadline and potentially lose the protection of the Safe Harbor provided by the DMCA.  Businesses should be vigilant about calendaring this deadline and renewing their designation.

Satisfying the requirements of the DMCA is not hard, but can be confusing.  Contact us if you or your business would like help implementing the necessary policies.

Law 4 Small Business, P.C. (L4SB). A little law now can save a lot later.

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