The U.S. Copyright Office replaced its paper-based system for designating agents for receipt of claims of copyright infringement under the Digital Millennium Copyright Act (“DMCA”) with a new electronic system. As part of this process, website operators and other online service providers must designate agents under the new electronic system by December 31, 2017, or risk losing protection under the DMCA.
To put this matter into context, the DMCA provides a safe harbor from copyright infringement liability for online service providers, such as website owners. In particular, the DMCA provides protection from monetary damages and, in many cases, injunctive and other equitable relief, due to copyright infringement arising from material stored at the direction of a user. Almost every company uses a website to interact with its customers and to advertise its goods and services. However, every text box and upload button is an opportunity for users of the website to commit copyright infringement with posts, video and image uploads, automated video transcoding and playback, etc. A company which displays infringing content on its website may be liable for copyright infringement even if the content was posted by a user.
Under the DMCA, copyright owners send notices to online service providers (specifically, their designated agents) identifying allegedly infringing content. So long as the service providers expeditiously remove or disable access to the content, the DMCA protects the service provider from liability. The protection provided by the DMCA is particularly valuable for those who allow users to post or store content on their systems, such as online retailers who allow users to post comments and product reviews, or website owners who provide forums or chat rooms.
Online service providers must satisfy several requirements to qualify for protection under the DMCA. Among other requirements (discussed later), service providers must designate an agent with the Copyright Office. This agent receives claims of copyright infringement. The Copyright Office has historically used a paper- based system and directory for registration of agents. In December 2016, the Copyright Office introduced a new online registration system. In order to maintain an active agent designation, a service provider must submit a new designation using the online system by December 31, 2017. Agent registration must be renewed with the Copyright Office using the electronic system every three years and currently incurs a government fee of $6. Any designation not made by the electronic system will expire and become invalid after December 31, 2017.
New users can establish a DMCA Designated Agent Registration Account or log into their existing account by visiting the Copyright Office website at https://dmca.copyright.gov/osp/login.html. A single account can be used to register and manage designations for multiple service providers, but each separate legal entity must file separate designations. For example, a parent company and subsidiaries may use the same account, but each must register their designated agents separately.
Online service providers must comply with several other requirements to enjoy the protection of the DMCA. These requirements are:
- Repeat infringer policy reasonably implemented – Website owners must put their policies into practice.
- No interference with standard technical measures – “Standard technical measures” are measures used by copyright owners to identify or protect copyrighted works that have been developed pursuant to a broad consensus of copyright owners and service providers. As of 2017, none have yet emerged. As such, no action needs to be taken to comply with this requirement at this time, but this requirement could become relevant in the future.
An online service provider can enjoy the safe harbor of the DMCA so long as it (i) does not have actual knowledge that the material is infringing, or (ii) is not aware of facts or circumstances from which infringing activity is apparent, or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the material. Note that an online service provider can have a general awareness that among the thousands items posted on its site that a few may be infringing. The safe harbor is still available so long as the provider is not aware of any specific infringing material, or if it learns of such infringing material, the material is promptly taken down.
Online service providers which host user content should strongly consider registration of their DMCA agent with the Copyright Office’s new electronic system and complying with the remaining requirements under the DMCA. Failure to do so may cause the service provider to lose the protection of the DMCA safe harbor.