BOTTOM LINE
Website operators and other online service providers must re-register their DMCA designated agents using the Copyright Office’s new online filing system by December 31, 2017 to avoid losing DMCA safe harbor protection.
The Copyright Office recently implemented new regulations governing how websites and other online service providers must register a designated agent for receiving copyright infringement notices under Section 512(c) of the Digital Millennium Copyright Act (DMCA) to qualify for the DMCA safe harbor from copyright infringement. Beginning on December 1, 2016, online service providers must register their DMCA agents using the Copyright Office’s new online system. More significantly, online service providers who had already registered DMCA agents must re-register using the new online system by December 31, 2017, or they will lose their DMCA protections against copyright infringement.
Background
The DMCA protects online service providers (such as operators of websites, social media platforms or any service that permits user-generated content) against copyright infringement claims arising out of content posted by third-party users. Under the DMCA safe harbor, an online service provider that hosts user-generated content that infringes a third-party copyright will be immune from both direct and contributory copyright infringement liability for that user-generated content, as long as the service provider complies with the requirements of the DMCA.
Among those requirements is registration with the Copyright Office of the name and contact information of a designated agent to receive notices of copyright infringement. Since the passage of the DMCA in 1998, service providers have identified their designated agents through paper registrations with the Copyright Office. But as of December 1, 2016, the Copyright Office has moved to an all-electronic, web-based system, and the Copyright Office will no longer accept paper DMCA registrations.
Re-Register DMCA Agents to Avoid Losing Safe Harbor Protection
Online service providers that previously registered a DMCA designated agent with the Copyright Office under the paper system must file new registrations through the electronic system by no later than December 31, 2017. Service providers that fail to register a DMCA designated agent through the electronic system will lose their DMCA safe harbor protection. Organizations that operate multiple online services may file one registration listing all their services, unless the services are operated by separate legal entities, in which case each entity must file its own registration.
In addition to requiring online registrations, the new regulations also require online service providers to renew their DMCA agent designations every three years. If a designation is not timely renewed or amended, the DMCA agent designation will expire, and the service provider will no longer be entitled to DMCA safe harbor protection.
The DMCA requires service providers to make publicly available on their websites or other online services certain contact information for their designated DMCA agent. This information must remain current and also must match the information registered with the Copyright Office. If the contact information for the designated DMCA agent changes, the service provider must update its agent designation information on its online service, as well as amend its agent designation with the Copyright Office. Failure to keep its agent designation accurate on its website and Copyright Office registration can cause a service provider to lose its DMCA safe harbor protection.
The consequences of losing safe harbor protection, even for a short period of time, can be significant. A website that lacks a valid DMCA agent designation at the time it hosts allegedly infringing user-generated content will not be able to avail itself of the DMCA safe harbor protection for that content, even if the website thereafter registers a designated agent.
For example, in Allvoices v. Oppenheimer, a federal district court in California refused to extend DMCA safe harbor protection to a website that failed to register its DMCA agent until two months after the alleged copyright infringement occurred. In that case, Allvoices operated a website that encouraged “citizen journalists” to “share and discuss news, by contributing related text, video and images and commenting – adding a voice.” A photographer whose photographs were posted to the site by third-party users sued the website operator for infringement. Allvoices argued that the DMCA’s safe harbor provisions protected it from liability for the claimed copyright infringement. However, at the time the photographs were uploaded to the site, Allvoices had not yet registered its DMCA agent with the Copyright Office. As a result, the court held that Allvoices could “not invoke the safe harbor found at Section 512(c)(1) with respect to infringing conduct that occurred prior to Allvoices designating a DMCA-related agent with the Copyright Office.”
Action Items
- Re-register designated DMCA agents using the Copyright Office’s new online filing system by December 31, 2017.
- Set reminders to renew each designated DMCA agent registration before it expires three years after the registration was made.
- Ensure that the contact information required by the DMCA is posted on websites and other online services. This information should be current and should match the DMCA designated agent information registered with the Copyright Office.
- DMCA agent contact information and designations should be amended as necessary to ensure that they are up-to-date.