One of the best-known benefits of the Digital Millennium Copyright Act (DMCA) is the safe harbor from copyright infringement liability that it provides "online service providers", broadly defined in the statute as any “provider of online services or network access", which generally includes operators of websites, social media platforms, mobile apps, blogs, portals, games and other digital services that allow user-posted content or communications.
There are a number of requirements online service providers must meet to qualify for safe harbor protection, one of which is designation of an agent with the Copyright Office to receive notifications of claims of copyright infringement. The Copyright Office maintains a directory of designated agents. In December 2016, the Copyright Office transitioned from a paper-based registration system and DMCA designated agent directory to a fully electronic system. To reconcile the paper and electronic directories, the Copyright Office announced that:
- Any service provider that designated its agent with the Copyright Office prior to December 1, 2016, must submit a new electronic designation, using the online registration system, by December 31, 2017; and
- Agent designations not made through the new online registration system will expire and become invalid after December 31, 2017.
The DMCA's safe harbor provision lapses with the expiration of a designation, meaning that until the service provider submits a new electronic designation, it may not avail itself of the safe harbor provision and may be held liable for copyright infringement occurring on its website.
To designate an agent, a service provider must do two things:
- Provide the same information to the Copyright Office.
It is the service provider's responsibility to ensure that the contact information remains current, and the Copyright Office's December 2016 rule changes further require renewal of the designated agent registration every three years. In recognition of the increased efficiency of the electronic system, the Copyright Office has slashed the filing fee for registration—from $140 to $6 per designation, for up to 10 domains.
In May 2017, the Copyright Office issued a technical amendment to the December 2016 rule, relaxing two provisions relating to contact information for the service provider's representatives (as opposed to its designated agent, although they are frequently one and the same). In response to user feedback, it is no longer mandatory to provide the position or title, organization, or physical mailing address for the primary service provider representative. Additionally, providing information for a secondary service provider representative is now optional, although still recommended. Notably, the service provider's address may not be a post office box without prior approval by the Copyright Office, which will only be given upon written request and in exceptional circumstances, such as a threat to personal safety.
The new online registration system may be found here: https://dmca.copyright.gov/osp/login.html For additional information and tutorials offered by the Copyright Office, visit this link: https://www.copyright.gov/rulemaking/onlinesp/NPR/. For more assistance with agent registration or other DMCA or copyright issues, please contact a member of the Dentons Copyright team.