United States: DMCA Safe Harbor Protection Requires Action Under New Copyright Regulations

Last Updated: December 6 2016
Article by David O. Johanson and Jane W. Wise

The US Copyright Office has promulgated new regulations that will take effect on December 1, 2016 regarding the "safe harbor" provision of the Digital Millennium Copyright Act (DMCA), which will affect both internet service providers and others whose websites allow third parties to post content, such as chat rooms or discussion forums.1 

The regulations implement new electronic filing requirements for designating DMCA agents, as well as procedures requiring renewals at least every three years. Significantly, all persons who wish to institute or maintain the protection against copyright infringement liability afforded by the "DMCA safe harbor" must timely comply with the new electronic filing regulations—even if they have previously made their required hard copy filings with the Copyright Office—or risk losing their safe harbor protections.

Action Items

As detailed further below, service providers and website owners that wish to initiate or preserve DMCA safe harbor protections should take action in light of the new regulations:

  • Promptly after December 1, 2016, create a Copyright Office account, appoint the required representative(s), and designate a DMCA agent—all online. Service providers that previously designated DMCA agents must comply with the new regulations by December 31, 2017.
  • Institute a docketing or reminder protocol to ensure that the DMCA agent designation is updated or renewed at least every three years.

Background

The DMCA, enacted in 1998, contains a "safe harbor" provision that shields service providers and website owners from financial liability for copyright infringement based on third-party content posted to websites they control or operate.2 If service providers comply with certain eligibility requirements, including designating an agent to receive notifications of claimed copyright infringement and taking down allegedly infringing content upon notice, then the service providers are not liable for infringement damages. This notice and take-down policy has been widely regarded by both service providers and copyright owners as a generally effective mechanism to prevent copyright infringement liability for unauthorized content posted on websites and for removal of allegedly infringing content relatively quickly.

The DMCA requires the Copyright Office to maintain a "current directory" of service providers' designated agents to receive notifications from copyright owners who allege that content on the providers' website(s) infringes upon the copyright owners' rights. The current regulation requires each service provider to make a one-time paper filing (now routinely submitted by email) with the Copyright Office that lists the current name, address, telephone number, and email address for its designated agent. For the DMCA safe harbor to apply, the service provider must maintain the same contact information that it files with the Copyright Office on both its website and in the Copyright Office's directory. If a service provider fails to maintain current and accurate information in both places, it risks losing the protections of the safe harbor.

Despite the strong incentive for service providers to maintain current and accurate information, the one-time filing requirement resulted in much of the information in the Copyright Office's directory falling out of date. Moreover, a Copyright Office study of the accuracy of its directory revealed that many service providers may have inadvertently lost the protections of the DMCA safe harbor by either (i) failing to maintain matching contact information in the directory and the service providers' websites or (ii) not providing any contact information on those websites.

To improve both the overall accuracy and efficiency of the directory, in October 2016 the Copyright Office promulgated the new regulations, which require electronic filing and periodic updating of the designated agent information.

New Rules for Designation of DMCA Agents

The new electronic registration system will be launched on the same day that the regulation becomes effective—December 1, 2016. Registration, amendment, resubmission, and renewal require a (significantly reduced) fee of $6.

Beginning December 1, 2016, the Copyright Office will no longer accept paper designations. Service providers that have already designated an agent are required to refile electronically by December 31, 2017 to maintain their DMCA safe harbor protection. The new rules also require each service provider to renew, resubmit, or amend each designation no later than three years after each is registered with the Copyright Office. Amendment prior to the three-year renewal date resets the clock on the renewal for an additional three years. If a service provider fails to timely renew its designated agent information, it may reactivate its account, but the Copyright Office's directory will show a gap where no active designated agent was listed. Service providers' historical designated agent information from both the new electronic system and past paper records will be available through the new system.

Each service provider must create an account through which it will submit its DMCA agent designation, including amendment and renewal information. Related or affiliated service providers that are separate legal entities are considered separate service providers, and each must have its own designations. However, all of such affiliates' designations may be centrally managed and maintained through a single account.

The designated agent may be an individual, a specific position or role (e.g., General Counsel or Copyright Manager), a department within the service provider's organization, or a third-party entity. To designate an agent or amend or resubmit a designation, the user must attest to having authority to act on the service provider's behalf and to the accuracy and completeness of the information provided.

Create an Account and Appoint a Representative

  • To create a registration account, a service provider must provide the following information for both a primary and secondary representative for purposes of communications with the Copyright Office:
    • Full name
    • Position or title
    • Organization name
    • Physical mail address
    • Telephone number
    • Email address
  • Primary and secondary representatives will receive automated confirmation emails and may be contacted by the Copyright Office with questions regarding the designation or registration account.
  • Primary and secondary representatives' contact information will not be made public by the Copyright Office.
  • Primary and secondary representatives are not required to be listed on the service provider's website.
  • Primary and secondary representatives may be third parties (such as a parent company or a law firm), and a single registrant may designate agents on behalf of multiple service providers.
  • Payments will be made through pay.gov operated by the US Department of the Treasury with a credit card, debit card, or bank account.

Information Required to Designate an Agent

  • Service provider
    • Full legal name
    • Physical street address (not a post office box)
    • Telephone number (will not be made public)
    • Email address (will not be made public)
    • Any alternate name used by the service provider (not its affiliated or related entities), including any name that the public would be likely to search (e.g., a trade name or "Acme.com")
  • Designated Agent
    • Full name
    • Organization
    • Physical mailing address or post office box (new option)
    • Telephone number
    • Email address

For assistance and additional information, the Copyright Office has created a helpful website page that includes several video tutorials.

Footnotes

1 37 C.F.R. § 201.

2 17 U.S.C. § 512.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.