The Digital Millennium Copyright Act (DMCA) has “safe harbor” provisions that protect internet service providers from most liability for infringing actions of their users. Digital services and websites like Facebook and YouTube – whose businesses are built on people posting material to their websites – rely on this safe harbor to avoid what could otherwise be crippling liability. In order to receive these protections, service providers must follow certain conditions, including “notice and takedown” procedures that give copyright holders a way to disable infringing content. Section 512 of the DMCA also requires that a “designated agent” be provided for service of takedown notices.
Under a new rule effective Dec. 1, the Copyright Office will replace its current paper filing system and will require service providers to electronically register their designated agent. Failure to re-register by Dec. 31, 2017 will disqualify a service provider from the DMCA’s safe harbor protection.
Current Procedures
Under the current procedures, a service provider will register its designated agent in physical papers filed with the Copyright Office. The documents are then uploaded as a PDF to the office’s website. Some have complained the system is difficult to search and contains inaccurate information, as service providers have not updated their designations. The new rule is designed to help address these sorts of issues.
The New Rule
Services providers will have to create an account in order to access the online registration system. The following information will have to be provided:
- Service provider contact information: it’s full legal name, telephone number, email address and physical mailing address (this must be a street address and not a post office box);
- Any alternate names under which the service provider is doing business. This includes any names that the public would be likely to use to search for the service provider’s agent in the Copyright Office’s online directory;
- The name of designated agent; specific position or title (e.g., Copyright Manager); a specific department within the service provider’s organization or within a third-party entity (e.g., Copyright Compliance Department; or the name of a third-party);
- The agent’s telephone number, email address and physical mailing address. The agent’s mailing address can be either a street number or a PO Box.
The rule requires that registrations be renewed every three years, even if the information has not changed. In its Federal Register notice, the Copyright Office said renewal will cost $6 and should take just a few minutes to complete, “a manageable proposition for even the smallest of service providers.”
Conclusion
Service providers who want protection under the DMCA’s safe harbor should plan to re-register under the new regime before the end of 2017. Failure to do so could expose them to monetary damages for the infringing activities of their users as it would leave them outside the DMCA’s protections. Companies should also take careful note of the information that is required under the new rule, so as not to omit necessary details. This is particularly true for newly-required information, like inclusion of names the public would be likely to use to search for the service provider in the database.
