Legal Alert for Online Service Providers
By: Jon Avidor
On December 1, 2016, the U.S. Copyright Office rolled out its new electronic registration system and directory for registered agents under the Digital Millennium Copyright Act (“DMCA”). This shift from paper filings to an online platform requires any service provider with a designated agent prior to November 30, 2016 to reregister its agent through the new online system by December 31, 2017 to continue its protection under the DMCA safe harbor. If you or your business maintains a website that enables users to post or transmit content, you may qualify as a service provider under the DMCA and this notice might apply to you.
The Digital Millennium Copyright Act Safe Harbor
Section 512 of the DMCA, 17 U.S.C. § 512, provides Internet communications service providers with a safe harbor from liability for copyright infringement for infringing material posted by its users, provided the online service provider meet certain qualifications. The service provider must implement a notice and takedown protocol that would allow copyright holders to report alleged infringement of its protected work on its website or through its service, and the service provider may avoid liability for copyright infringement by removing the infringing material and, if appropriate, terminating repeat infringers. As prerequisite, the online service provider must designate an agent to receive these notices of claimed infringement, register that person with the Copyright Office, and identify him or her in its posted terms of service or usage policies.
Implications of the New Rule
The Final Rule by the Copyright Office, which amends 37 C.F.R. §201.38, institutes three changes implicating the notice and takedown regime of the DMCA:
- Online service providers that rely on the DMCA safe harbor protections must designate its agent to receive notices of claimed infringement through the Copyright Office’s new electronic DMCA Designated Agent Directory by December 31, 2017.
- Under the new system, agent designations expire after three years and companies will have to reregister to remain current. This is a departure from the old paper system in which agent designations did not expire.
- The new electronic DMCA Designated Agent Directory will list an online service provider’s agent designation history based on its paper filings.
If your business hosts or facilitates the transmission of user-generated content on its online platform and you miss the December 31, 2017 deadline to designate a DMCA agent through the new electronic directory or fail to maintain an active agent designation, your company will not continue to be protected by the DMCA safe harbor provisions, which means you could face exposure for copyright infringement alleged against users of your online service.
