Section 512(c) of the Digital Millennium Copyright Act (“DMCA”) imposes certain obligations on online service providers who wish to take advantage of the Act’s safe harbor protection from liability for copyright infringement stemming from storage of a material at the direction of a user. For purposes of 512(c), a service provider is broadly defined as a “provider of online services or network access, or the operator of facilities therefor.” This includes, but is not limited to, “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” As such, if you host or operate a website to which members of the public or subscribers can upload material, you could qualify as a service provider and take advantage of the safe harbor provisions. As one prerequisite, service providers must register with the Copyright Office an agent to whom copyright holders may direct takedown notices flagging allegedly infringing material. The purpose of this requirement is to ensure that the public is able to readily identify the proper individual or entity to whom to report claims of infringement.
As of December 1, 2016, registration of agents with the Copyright Office is conducted electronically and is governed by new rules. One benefit of the new regulations is that the registration fee has dropped from $105 to $6. The regulations impose two new obligations, however, that service providers ignore at their peril. First, service providers who have previously registered their DMCA agents must re-register through the new system by December 31, 2017; those who fail to comply will lose safe harbor protection on January 1, 2018. Second, registrations will expire after three years if not timely renewed. Service providers must timely renew their registrations to continue to avail themselves of safe harbor protection. Additional highlights from the rules include:
- As before, service providers must timely update their agent registration information to keep it current.
- Service providers must include in their registration all alternate names that members of the public are likely to use in searching for that entity’s registered agent. These might include URLs, “doing business as” names, and so forth.
- An agent can be a person, a job title, a department or division of an organization, or a third party entity.
- Parents and subsidiaries that are separate legal entities are considered distinct service providers and must have their own registered agents. That said, one Copyright Office account can be used to register agents for multiple entities.
- As noted above, the registration system is now electronic; paper or PDF filings are no longer accepted.
- Until December 31, 2017, the public must search both the existing paper-based Designated Agent Directory and the new electronic Designated Agent Directory, as an agent may be registered in either system.
All online service providers are encouraged to take stock of their compliance with Section 512 as a general matter, and to re-register their agents with the Copyright Office sufficiently in advance of the deadline to avoid any issues. Additional details and filing requirements can be found on the Copyright Office website at https://www.copyright.gov/dmca-directory/.