The Digital Millennium Copyright Act (''DMCA'') contains an important safe harbor provision for online service providers that helps protect them from liability for copyright infringement for material posted on their services by their users. The safe harbor provision provides that an administrator of a website or other online service will not be held liable for monetary damages for infringing content posted by users, as long as the administrator has no knowledge that the material in question is infringing; it does not receive a financial benefit directly attributable to the infringing activity; and acts expeditiously to remove or disable access to the infringing material when a copyright owner notifies it that it is infringing.
In order to receive the safe harbor protection, online service providers who allow users to post material on their websites must designate an agent to receive notifications of claimed copyright infringement. To designate an agent, a service provider must (1) make contact information for the agent available to the public on its website; and (2) provide the same information to the U.S. Copyright Office, which maintains a centralized directory of designated agent contact information for the public.
Effective December 1, 2016, the U.S. Copyright Office adopted new regulations governing the submission of a designated agent and service provider information to the Office. With this change, the Office introduced a new online registration system and electronic directory to replace its paper-based system and directory. Accordingly, the Office no longer accepts paper designations.
Under this system, all online service providers seeking safe harbor, including those that have previously designated an agent with the Copyright Office, are required to submit designations through the new electronic system. Service providers that previously designated a copyright agent via the paper system must submit a new designation through the electronic system by December 31, 2017 or risk losing their safe harbor protection. Thus, all online service providers who allow users to post content on their site should register electronically with the U.S. Copyright Office. Those who have already submitted paper registrations should file electronically prior to December 31, 2017.
Below we have highlighted the changes to the system as well as a list of steps to take in order to register online.
Changes to the System
Designating an agent through the electronic system requires online service providers to create an online account with the U.S. Copyright Office and providing information similar to what was required under the paper-based system (e.g., name and address of the service provider and agent contact information), but with some changes. As before, service providers must provide a physical address. However, a P.O. Box may now be used for a service provider's agent, whereas under the paper-based system P.O. Boxes were not allowed.
Further, with the new system, an agent's name does not need to be an actual individual's name. Instead, a department within the service provider's organization or a third-party entity is acceptable.
Finally, the paper-based system allowed but did not require service providers to include "alternative names," such as names under which the service provider is doing business. Under the new system, service providers must list "all alternate names that the public would be likely to use to search for the service provider's designated agent in the directory, including all names under which the service provider is doing business, website names and addresses (i.e., URLs, such as "__.com" or "__.org"), software application names, and other commonly used names."
How to Electronically Submit Agent Designations
Below are the steps for submitting agent designations through the new electronic system. Changes to the paper system are also noted.
- Create a DMCA Designated Agent Registration Account. Visit the US Copyright Office site https://www.copyright.gov/dmca-directory/ or https://dmca.copyright.gov/osp/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. To begin registering, you will need to choose a "registration account holder" who will serve as the primary point of contact. The following information is needed: full name, organization name (optional), phone number, and email address. You must also create a unique "login ID" and password. You may choose to add a secondary contact person whom the Office may send reminders to and correspond with in the event that the primary contact cannot be reached. This secondary contact person is optional.
- 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 $6.00 registration fee. Service providers will be required to provide contact information similar to the paper-based 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, such as d/b/a names, websites and website addresses, software application names, etc. The system is designed to allow these alternative names to be uploaded all at once, using an Excel spreadsheet.
- Designate your agent. Section 512(c) of the DMCA specifies that to invoke the safe harbor protections, the service provider must provide ''the name, address, phone number, and electronic mail address of the agent.'' Service providers may designate an agent either by name or by position/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.
- Designations also must be renewed at least once every three years. Note that the old paper-based system did not require renewal. Failure to timely renew designations will result in expiration of the safe harbor protection. The information from the U.S. Copyright Office states that the registration system will send out a series of reminder emails prior to your renewal deadline. Thus, it is important to keep the email addresses listed with the U.S. Copyright updated.
The DMCA safe harbor provision is an important tool for avoiding copyright infringement liability from content posted by users and can provide valuable protections for online service providers. However, this protection does not exist automatically and it is important to register electronically to receive protection, even for those service providers who have previously registered using the paper-based system.
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.