Your Digital Millennium Copyright Registration May Be About To Expire

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Last November, we wrote about the Copyright Office’s decision to ditch its paper registration system for the Digital Millennium Copyright Act (“DMCA”) safe harbor and start a new online system completely from scratch. If you have had other things on your mind since November 2016, we completely understand. However, if you run a website that hosts user content, copyright law will not understand (and you will lose DMCA safe harbor protection) unless you re-register under the new system before the end of December 2017.  Here is a quick recap and some tips:

Background

Companies that host user content have long enjoyed the safe harbor protections of the Digital Millennium Copyright Act (“DMCA”), which insulate online service providers from copyright liability based on the infringing uploads of their users. Long story short: If it turns out you have inadvertently hosted copyright infringing content uploaded by others, and you have jumped through the DMCA hoops established by the statute and by the Copyright Office, then you are essentially immune from damages for copyright infringement. Taking advantage of DMCA safe harbor protections requires that, among other steps, online service providers adopt a statutory notice-and-takedown process, a component of which involves registering a “designated agent” with the U.S. Copyright Office. That designated agent serves as the main point of contact for and recipient of takedown notices asserting copyright infringement.

From the DMCA’s inception in 1998 until recently, the registration forms for these designated agents were submitted on paper or as a PDF file to the Copyright Office, which scanned them and made them publicly available.  Over time, that database – which is still active until the end of 2017 – became littered with outdated information.  Accordingly, on December 1, 2016, the Copyright Office rolled out a modernized online registration system for designated agents, which promises to ensure reasonably accurate and up-to-date information going forward.

Is Your Registration About to Expire?

Critically importantly, all designated agent listings under the old system – which were once considered to be indefinitely effective – will now expire as of December 31, 2017.  This means that all online service providers wishing to avail themselves of the DMCA safe harbor must re-register their designated agent information with the new system before that date.

The good news is that the price is right – each registration, renewal, or amendment is only $6, and lasts for three years.  For ease of renewal, the system will also send automated reminders to the e-mail address on file prior to the three-year expiration date.

We found the new online system fairly simple to navigate once we set up a user ID. To complete the safe harbor registration process, you will need:

  • Your contact information (that should be easy).
  • A list of alternative names by which the public is likely to know the filing entity (for example “Foley Hoag”, “Foley Hoag & Eliot,” “www.foleyhoag.com,” “the firm Josh and Dave work at” etc.). For those entities with tons of alternative names, you can upload an excel spreadsheet.
  • The identity and contact information for the designated agent (the person who is listed on your website as the proper recipient of takedown notices).
  • A credit card that will take a $6 charge.
  • Your finger, to click a box attesting that the information you have provided is accurate.

We strongly recommend that all online service providers register their designated agents with the new system by year-end.  If you are an online service provider that hosts user content, and are not currently taking advantage of DMCA safe harbor protections, or if you are uncertain as to the various statutory requirements to become and remain DMCA-compliant (or whether compliance is necessary given your business model), give your friendly neighborhood copyright attorney a call.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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