Website Operators Must Comply with New DMCA Agent Registration Procedures or Risk Liability for Copyright Infringement
Author: Adam R. Bialek
Initiation of copyright infringement claims on the internet is becoming more prevalent with the increasing sophistication of software that lets copyright owners scour the internet for infringements of images. If your website lets users post content, the Digital Millennium Copyright Act (DMCA) can protect you from possible copyright infringement liability. The Act reflects a mutually benefitting compromise between the operators of websites and the owners of copyrights. The DMCA is designed to protect internet service providers (ISPs) from liability due to potential copyright infringing content that website users can upload or post onto websites and social media accounts. The limitations of liability had been premised on strict compliance with certain preconditions. The process for one of these prerequisites, i.e., registration of a DMCA Agent with the U.S. Copyright Office, changed as of December 1, 2016, and affirmative actions need to be taken by website operators prior to December 31, 2017, or safe harbor protection will be lost.
An ISP is defined by statute, 17 U.S.C. 512(k), as “an entity offering the transmission, routing, or providing of connections for digital online communications” or as “a provider of online services or network access, or the operator of facilities therefor.” In practice, however, a covered ISP is essentially any interactive website that permits the user to upload content. The DMCA compliance guidelines are not mandatory but can limit and protect website operators from exposure to liability.
To reap the benefits of limited exposure to copyright infringement liability, also known as “safe harbor protection,” the DMCA requires website operators to follow certain procedural steps, including:
- Informing website users that continuous copyright violation by offenders will result in terminated access to the website
- Removing infringing user-generated content if notified by the copyright owner
- Designating and registering a DMCA Agent to receive such infringement notices, also known as “takedown notices.”
To designate an Agent, the website operator must make certain contact information available on its website, and it must provide the same information to the U.S. Copyright Office where a master list of DMCA Agents is maintained.
The DMCA Agent registration process was once a paper-based system and directory, and it required a one-time registration. On December 1, 2016, the process changed and the Copyright Office launched a new online registration system to ease the process of registering DMCA Agents. The new online system is exclusive, and the Copyright Office will no longer accept paper registration.
The new process comprises two steps: website operators must (1) list the contact information of the appropriate DMCA Agent on the website and (2) register this Agent with the online system. This new electronic process has a financial advantage: governmental filing fees for designated DMCA Agents have been drastically reduced from the paper registration system. In addition, the change has a liberal transition period: the Copyright Office has allowed a 13-month grace period for service providers who had previously registered Agents with the paper-based system to switch and re-register agents under the new online system. If a website operator has not transitioned to the new online system by December 31, 2017, the paper-registered DMCA Agent notice will no longer be applicable and the safe harbor protection will be lost.
In addition, the new online system requires DMCA Agent renewal every three years. This forces a website operator to keep Agent information current, and encourages heightened efficiency in the online process.
Website operators already registered under the old system need to update previously published Agent contact information on their websites and complete online registration steps to maintain safe harbor status. For those website operators who have not taken advantage of this safe harbor, now is the time to do so. We encourage all service providers and operators who allow for the posting of user-generated content to follow the aforementioned steps to ensure compliance with the modernized DMCA Agent registration process for continued legal protection and to have an appropriate policy posted on their websites.
NOTE: Adrianna Bojrab (Associate-New York) assisted in researching and drafting this Alert.