Increasingly, almost every aspect of our lives, from paying bills to ordering takeout or holiday gifts is done online. The U.S. Copyright Office is catching up, and realizing the time is right to do away with paper registrations for DMCA agents, and shift to an Internet based registration system. Online service providers (OSPs) should mark their calendars because they must register or re-register their DMCA agent’s contact information with the Copyright Office by December 31, 2017, or risk losing DMCA safe harbor protections.
What is the DMCA?
The Digital Millennium Copyright Act (DMCA) is U.S. copyright legislation enacted in 1998. The DMCA updated the U.S. Copyright Act, and made it easier to pursue damages for copyright infringement that occurs online. The DMCA also has some added protections (safe harbors) for OSPs. OSPs include people or entities that own and run websites and apps, or any other place people can post information online. For example, YouTube, Facebook, Craigslist, or even a website for your favorite local food blogger with comments enabled, or neighborhood association message board would likely count as an OSP. The DMCA grants OSPs that qualify and comply with its takedown provisions immunity from copyright infringement. It also provides an effective mechanism for copyright owners to get infringing content removed from the Internet. Without the DMCA, the interactive web as we know it would not exist.
It is important to understand if you or your business are an OSP and if so to take the necessary steps to comply with the DMCA safe harbor provisions, and avoid paying money damages for visitors posting infringing content to a website or online platform that you control.
What is a DMCA Agent?
One of the requirements for OSPs to take advantage of the DMCA safe harbor is that they must register an official agent with the Copyright Office. This agent is responsible for receiving notice from copyright holders regarding alleged infringements. For example, if I were a photographer and posted examples of my work on my website, and noticed that some of my posts and corresponding original photographs were appearing without permission on another website, as a first step, I could reach out that website’s DMCA agent to request that the content be removed. An OSP should have a written policy that guides its conduct in the event that it receives a notice of copyright infringement from a copyright holder to ensure that its safe harbor protection is not lost. Once that DMCA agent receives a written notice of a possible infringement, he or she must act diligently and comply with time-sensitive obligations to achieve DMCA compliance. In practice, the OSP will usually suspend or take down the potentially infringing material within 24 hours of receiving the notice and then take reasonable steps to alert the user that posted the content that the allegedly infringing material has been disabled or removed.
Steps to Ensure Ongoing DMCA Compliance
The new registration system opened on December 1, 2016, and it closes on December 31, 2017. Even if you have previously registered under the old paper system, you must re-register within this window if you want to preserve your safe harbor. If you have not designated a DMCA agent in the past, a new DMCA agent must now be registered electronically because the Copyright Office is doing away with the paper system. Registration under the new system is fairly streamlined. It simply requires filling out an electronic two page form and it only costs $6.00. Check out the login page with a link to the registration page here: https://dmca.copyright.gov/login.html
Consider the following steps to help ensure that you get and maintain the benefits of the DMCA safe harbor:
- Contact counsel if you have not previously designated a DMCA agent to evaluate whether you need one.
- If you qualify as an OSP, designate a DMCA agent with knowledge of the time-sensitive DMCA takedown obligations. Some OSPs choose their copyright attorneys as their agents.
- Register or re-register your DMCA agent using the Copyright Office’s new registration system.
- Post a DMCA compliant takedown policy on your website or online platform.
- Work with counsel to put internal procedures in place to help you evaluate whether a DMCA notice of claimed infringement is valid and how to respond and preserve your safe harbor.