Website publishers that want to protect themselves against claims of copyright infringement must participate in a new online registration system created by the U.S. Copyright Office for the Digital Millennium Copyright Act ("DMCA") -- even if they have participated previously. The new program, launched on December 1, 2016, offers a mandatory online registration system for the DMCA that replaces the original (and clunky) "interim" designation system, which was created in 1998.
The purpose of the new, online DMCA agent-appointment process is the same as the previous system: to provide a safe harbor (under section 512 of the DMCA) from copyright infringement for so-called "service providers," which the U.S. Copyright Office notes includes "those that allow users to post or store material on their systems, and search engines, directories, and other information location tools." Under the DMCA, a service provider that appoints an agent to receive "take-down" notices may avoid liability for infringing content if it responds appropriately -- typically by "expeditiously" removing access to the infringing content.
To avail itself of the DMCA protection, a website publisher must designate, at the U.S. Copyright Office, an agent to receive notices of claimed infringement. In the past, this designation occurred by completing a hard-copy document, physically signing it and mailing it with a $135 check to the Register of Copyrights. Then, a scanned copy of the document was published on the Copyright Office's website.
While this system worked, it was awkward and expensive because it relied on old-fashioned technology. Among its other drawbacks, the content of DMCA agent forms was not fully searchable (which made it difficult for copyright owners to use) and not easily maintained (which made it difficult for service providers to keep current). Indeed, one study performed by the Copyright Office showed that 70% of paper designations either had inaccurate information or were for defunct service providers.
As the Final Rule for the new process stated:
These findings are particularly concerning because they show that service providers might unwittingly be losing the protection of the safe harbors in section 512 [of the DMCA] by forgetting to maintain complete, accurate, and up-to-date information with the Copyright Office. These findings are also concerning because the directory in many cases would seem to be an unreliable resource, at best, to identify or obtain contact information for a particular service provider’s designated agent.
Clearly, as I've written before, the old system was outdated and in need of modernization.
The new system replaces the paper process with an online tool, a $6 fee and a searchable database of agents.
Two Things to Know
Aside from the mechanics of the new system, perhaps the two most important things to know are:
- Website publishers must appoint an agent under the new system to keep (or obtain) their DMCA protection. As the Copyright Office says: "Any service provider that has previously designated an agent with the Office will have until December 31, 2017 to submit a new designation electronically through the new online registration system. Until that time, an accurate designation in the old paper-generated directory will continue to satisfy the service provider’s obligations under the DMCA. After that time, the designation will expire and become invalid, which could result in the service provider losing the section 512 safe harbor protections."
- Website publishers must renew their appointments every three years to maintain their protection under the DMCA. According to the the Copyright Office: "A service provider’s designation will expire and become invalid three years after it is registered with the Office, unless the service provider renews such designation by either amending it to correct or update all relevant information or resubmitting it without amendment to confirm the designation’s continued accuracy. Either amending or resubmitting a designation through the online system begins a new three-year period before such designation must be renewed, from the date of renewal."
As with the old, paper-based system, the new DMCA agent-appointment process allows a service provider's representative (such as an attorney) to file (and, now, to maintain) the designation. Indeed, many website publishers elect to appoint their copyright attorneys as their agents to receive notices -- a move that ensures someone with knowledge of the time-sensitive take-down obligations is always involved, to help ensure that publishers avoid liability for infringement whenever possible.
For further reading, see "5 Myths About DMCA ‘Take-Down’ Notices"