Copyright Office Ditches Paper And Announces Electronic Renewal Requirement For DMCA Designated Agents

Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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Since the enactment of the Digital Millennium Copyright Act (“DMCA”) in 1998, online service providers wishing to avail themselves of the DMCA’s safe harbors (from liability for copyright infringement) have been required to register the identity and contact information of a designated agent. Designated agents serve as the point of contact for copyright holders who spot infringement online and need to serve a DMCA takedown notice to get the offending content removed.

Since 1998, the registration forms for these designated agents have been submitted on paper or as a PDF file to the Copyright Office, which has scanned them and made them publicly available through a somewhat clunky database. Over time, that database has become littered with outdated information.  The Copyright Office recently sampled 500 of the over 23,000 registration forms in the database and found that about 70% of them contained inaccurate contact information or were related to now-defunct websites.

Last week, the Copyright Office rolled out a Final Rule announcing substantial changes to the relevant regulation (37 C.F.R. §201.38), effective December 1, 2016. Notably, these changes will impact all online service providers, even those already registered for safe harbor protection.  Among the most important new provisions are:

  • Effective December 1, 2016, the Copyright Office will stop accepting paper and PDF registration forms for designated agents. All new registrations of DMCA agents must be completed through an online registration system. Each service provider will be required to establish (at no fee) a DMCA Designated Agent Registration Account through which it will file these registrations and subsequent amendments.
  • All online service providers who have previously registered designated agents will be required to resubmit these registrations through the new electronic system by December 31, 2017. Failure to resubmit will result in a loss of safe harbor protection starting January 1, 2018. Until December 31, 2017, copyright holders and members of the public will have to search both the old and the new database when trying to identify registered designated agents.
  • Registrations will expire after three years. The days of registering an agent and then forgetting about it are over. From now on, all registrations will last for three years, after which they will require renewal whether or not the information has changed. The Copyright Office will send automated alerts by email to remind account holders of upcoming renewal deadlines. The Copyright Office promises that the renewal form will “take minutes to complete.” If that sounds like too much work, online service providers also are permitted to hire third parties to manage their DMCA agent registrations.
  • There will be a flat fee of $6 for each registration, amendment and renewal. The previous fee was $105 per registration.

The Copyright Office considered and rejected other changes, including one that would have allowed a parent company and its subsidiaries to share the same registration. The old database will remain freely available to the public for ten years after it is phased out. Tutorials and further information regarding the new online registration system are available here.

 

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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