Deadline Nearing to Electronically Register DMCA Agents and Maintain DMCA Protection
Online service providers who seek the protection of the safe harbors of the Digital Millennium Copyright Act of 1998 may need to take action to electronically register or re-register their designated DMCA agent. Failure to comply with the Copyright Office’s new requirements for electronic registration of DMCA agents may deprive OSPs of the protections of the DMCA, even if the OSPs have previously complied with the old registration requirement, and could result in exposure to copyright infringement liability for materials placed on the OSPs servers or transmitted through its systems by its users.
The DMCA includes a set of provisions referred to as the “DMCA Safe Harbors,” which are found in 17 U.S.C. §512. The safe harbors are intended to protect online service providers from copyright infringement liability for alleged infringement arising out of the conduct of the OSP’s end-users, provided the OSP complies with the formalities imposed by the DMCA. The safe harbors’ limitation on liability would protect an OSP if, for example, a user posted a copyrighted image that user did not own on a message board hosted by that OSP, provided that OSP expeditiously acted to remove, or disable access to, the image after receiving notification of a claimed infringement.
To avail themselves of the DMCA’s safe harbors, OSPs must comply with the various requirements– including by registering a designated DMCA agent to receive notifications of potentially infringing content on the OSPs servers.
Electronic Registration of DMCA Agents:
In December of 2016, the Copyright Office launched a new online directory of these designated DMCA agents, and implemented new requirements for the registration and maintenance of DMCA agent designations. The deadline to comply with those new requirements is fast approaching.
Previously, registration of designated DMCA agents was submitted in hard copy to the copyright office. Pursuant to the new Copyright Office regulations, however, OSPs must electronically register their agents – even if they previously submitted paper registrations. To maintain DMCA safe harbor protection, any OSP that previously designated an agent in paper form must re-register that agent using the Copyright Office’s online registration system by December 31, 2017. On January 1, 2018, all registrations filed in paper copy will become void. OSPs must also re-register their DMCA agents every three years (another change from the regulations governing DMCA agent registrations filed under the hard copy filing system, which did not expire).
The change in regulations has also eliminated the previous requirement that the DMCA agent be an individual. An OSP can now designate a specific position (e.g., “DMCA Officer”) or department within the organization (e.g. “Copyright Compliance Department”) as its agent, to avoid issues caused by personnel changes. Only one single agent may be designated. OSPs preparing a DMCA agent registration must also make sure to include a list of alternate names by which the public may attempt to search for that OSP – for example, D/B/A names or other commonly used names for the provider, or the common names for the product or service the provider offers.
If you have previously registered the DMCA agent for your OSP through the paper registration process, you will need to re-register by the end of the year. To do so, you will first need to create a registration account at https://dmca.copyright.gov/osp/login.html.
Arent Fox's Intellectual Property group will continue to monitor developments in this area. If you have any questions, please contact Paul Fakler, Margaret Wheeler-Frothingham, or the Arent Fox professional who usually handles your matters.