One of the central features of the U.S. Digital Millennium Copyright Act (or DMCA)for online service providers is the combination of the Notice and Takedown regime and the corresponding Safe Harbour provision. Provided that online service providers properly carry out their obligations under these provisions, including by promptly removing infringing content when they receive compliant notices, they are shielded from liability for copyright violations by their users.
This system has critics among service providers, right holders, and users. But it has underpinned the explosion of user content-based services ranging from Facebook and YouTube to small community bulletin boards.
A critical element of this regime is the obligation for service providers to publicly designate a DMCA Agent, as the point of contact for notices from right holders. The US Copyright Office operates a public directory of DMCA Agents.
On November 1, 2016, the US Copyright Office announced changes to the rules governing the registration and maintenance of DMCA Agents. The key features of the new rules, which take effect on December 1, 2016, are as follows.
- The existing paper-based “interim” system will be replaced by a new “permanent” web-based system.
- All paper registrations will become invalid on December 31, 2017. Every service provider who wishes to take advantage of the DMCA Safe Harbour clause will need to register with the new system before then.
- Under the new system, registrations must be renewed every three years. It is critical not to miss this renewal, because US courts have held that failure to have a registered Agent invalidates the safe harbour even if you are compliant in all other respects.
- Expired registrations can be renewed at any time. However, the new system will make the expiration dates public, so potential plaintiffs will be able to monitor for lapses.
- Any amendment or update to a registration restarts the three year clock.
- The registration fee has been drastically reduced, from $105 (plus $35 for up to 10 additional designations) to a flat rate of $6 per designation. The same fee will apply to amendments or renewals.
- The information to be submitted is largely unchanged from the current system. However, under the new rules, it is now permissible to name a department or even an entire entity (such as a law firm or other service provider) as the designated agent. Furthermore, while it will remain mandatory to provide a telephone number, email address and mailing address (all of which will be published), the new rules clarify that the mailing address can be a P.O. box rather than a street address.