Online service providers have until December 31, 2017, to re-register a designated agent with the Copyright Office if they want to remain eligible for protection from copyright infringement liability under the Digital Millennium Copyright Act’s “safe harbor”.
The 1989 Digital Millennium Copyright Act, also known as the “DMCA,” made significant changes to U.S. copyright law, including changes that offer online service providers such as website operators and Internet service providers protection from copyright infringement liability provided they meet certain eligibility requirements.
The “safe harbor” in Section 512 of the Copyright Act applies specifically to online service providers that store material at the direction of a user. “Online service provider” includes almost every host or operator of a website, and material stored “at the direction of a user” includes content such as music or movies uploaded by users, website postings, blogs, or product comments. In other words, almost every business that has an interactive website is eligible for safe harbor protection.
One requirement for safe harbor protection is designation of an agent to receive notifications that a user’s stored material is allegedly infringing. The designated agent must be publicly disclosed on the service provider’s web site and registered with the Copyright Office, which is required to maintain a list of all registered agents. Failure to either disclose or register the designated agent could lead to forfeiture of the safe harbor protection.
Until last December, registering a designated agent was a simple paper submission mailed to the Copyright Office. However, the Copyright Office stopped accepting hardcopy designated agent filings, and all designated agent filings must now be made through an online, electronic registration system. More importantly, any online service provider that registered a designated agent before December 1, 2016 must re-register using the new online registration system to maintain safe harbor eligibility. As of December 31, 2017, all prior registrations not made through the online system will expire and become invalid. In addition, registrations must be renewed once every three (3) years to maintain safe harbor eligibility.
Designated agent registration is only one of the DMCA’s safe harbor eligibility requirements, and this is a good reminder to our clients to review not only DMCA compliance, but also their website privacy policies and terms of use to be certain they are up-to-date.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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