United States: Don't Lose Your DMCA Safe Harbor Protection!

The U.S. Copyright Office's new electronic system for copyright-agent registration and maintenance goes into effect on December 1, 2016, and with it comes new rules. Beginning December 1, all online service providers must submit new designated-agent information to the Copyright Office through the online registration system. Electronic designations should be filed on December 1, 2016, or as soon as possible thereafter. Service providers who fail to timely submit electronic designations will be ineligible for the safe harbor from copyright-infringement liability provided by § 512(c) of the Digital Millennium Copyright Act.

Companies that provide online services (such as a website, email service, discussion forum, or chat room) generally qualify as online service providers under the DMCA. To take advantage of § 512(c)'s safe harbor, service providers must designate agents to receive notifications of claimed infringement. Until now, service providers have identified designated agents through paper filings. But beginning December 1, 2016, the Copyright Office will no longer accept paper designations.

All service providers who wish to remain eligible for § 512(c)'s safe harbor must submit designations through the new electronic system. Service providers that previously filed paper designations must submit new designations through the electronic system no later than December 31, 2017. Previously filed paper designations will continue to qualify service providers for § 512(c)'s safe harbor until the new electronic registration is filed with the Office, or through December 31, 2017, whichever occurs earlier.

What you need to do:

  • Create a DMCA Designated Agent Registration Account. On December 1, go to dmca.copyright.gov/login.html to create an online account with the Copyright Office that will be used to log into the system and register service providers and agent designations. A single account can be used to register and manage designations for multiple service providers (e.g., a parent company may manage designations for its subsidiaries through a single account). However, related companies that are separate legal entities, such as a parent and subsidiary, are considered separate service providers that must register separately to take advantage of the safe harbor.
  • Register service providers. Once a registration account has been created, you may log into the account to register service providers with the Office. There is a $6 registration fee. Service providers will be required to provide contact information similar to the paper system. Service providers must also list all alternate names that the public would be likely to use to search for the service provider's designated agent, including d/b/a names, websites, software application names, and other common names. The system is designed to allow names to be uploaded in bulk using an Excel spreadsheet.
  • Designate your agent. Section 512(c) specifies that to invoke safe harbor the service provider must provide ''the name, address, phone number, and electronic mail address of the agent.''. You may designate an agent either by name or by position or title. While service providers must continue to provide a physical address for registration, a P.O. Box may now be used for a service provider's agent.
  • Renew your designations every three years. To ensure accuracy, service providers must renew and resubmit agent designations at least every three years. Failure to timely renew designations will result in expiration and ineligibility for safe harbor. The registration system will send out a series of reminder emails at various intervals before the service provider's renewal deadline.

Failure to comply with these requirements will result in a loss of entitlement to the DMCA safe harbor protection. While the foregoing are necessary conditions, other steps must also be taken to benefit from the safe harbor. Among other things, the DMCA agent contact information must be prominently disclosed on the website, timely removing or disabling access to infringing material must occur in response to a proper DMCA takedown notice, and the service providers must adopt and reasonably implement a policy to terminate repeat infringers.

The DMCA is a powerful tool for online service providers to avoid liability for infringement for content posted by its users. This protection does not happen automatically. The online service provider must strictly comply with all of the requirements of the DMCA. Courts have refused to bestow this liability protection where companies have not strictly complied. If you have questions on how to fully comply, contact an attorney who regularly handles these matters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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