New Online Registration Requirements for Designated Agents Under the Digital Millennium Copyright Act

The U.S. Copyright Office has developed a new electronic system for registering your designated agent under the Digital Millennium Copyright Act (“DMCA”).  As of December 2016, the U.S. Copyright Office has begun transitioning to an online registration system which allows online service providers to register a designated DMCA agent in a centralized public directory.  Any new registrations must be completed through this online system.  Most importantly, even if a service provider has previously registered its designated DMCA agent with the Copyright Office through the previous paper filing system, the service provider must re-register through the Copyright Office’s new online system before December 31, 2017.

Registering and maintaining a designated agent with the Copyright Office for copyright infringement takedown requests is necessary to obtain safe harbor protection under the DMCA.  Safe harbor protection can help shelter online service providers from potential copyright liability for any third party content posted on or transmitted via their websites.  In order to qualify for safe harbor protection under the DMCA, any online service provider that has a website or application which allows users to post, share, transmit, or comment on content must designate a Copyright agent.  To designate an agent, an online service provider must not only provide the contact information for the agent to the Copyright Office as part of its online public directory, but also make the contact information for the agent available to the public on the online service provider’s website so that users can notify the service provider of allegedly infringing material.

On the Copyright Office’s online registration system, online service providers must create an account and provide all necessary information regarding the service provider itself, the designated agent, and the associated websites.  Registration costs $6 per online service provider submission.

While the registration forms seem relatively simple, they raise additional issues that need to be considered carefully.  For example, related companies that are separate legal entities (parents, subsidiaries, etc.) and own related but separate websites must register separately.  An online service provider must also provide all alternate names under which the service provider is doing business, such as any of its associated website names and/or domains, software application names, or any other commonly used name that the public would be likely to use to search for the service provider’s designated agent.  In many cases a website owner can submit multiple websites/alternate names in one submission, but it depends on the specific circumstances.  The DMCA must be strictly complied with in order to receive full safe harbor protection, so it is essential that the registration forms are properly and fully completed.

Once the DMCA agent has been designated through the Copyright Office’s online system, online service providers must ensure that all of the registered information remains up to date.  Any failure to maintain accuracy in this information could result in losing the protection of the DMCA safe harbor provisions.  For example, if an online service provider’s designated agent changes, the service provider must make sure that the agent registration information is updated not only with the Copyright Office, but also in all places on the service provider’s website where the designated agent is identified.

Online service providers can amend their registrations at any time for an additional $6 per submission.  Additionally, the Copyright Offices requires online service providers to renew their agent designation at least every 3 years.  To do this, service providers must resubmit their registration before it expires, either with the same information if still accurate or with any updated information.  Renewals are also $6 per submission.  Any amendment filed will begin a new 3-year period before a renewal is due.

All online service providers should carefully review their current DMCA policies and materials and determine whether they may need assistance with drafting online DMCA policies for consumers, establishing and maintaining a designated agent with the Copyright Office, and/or drafting internal policies and procedures on reviewing and addressing DMCA takedown notices.  Online service providers do not want to miss out on compliance with the DMCA’s safe harbor provisions and potentially face copyright infringement liability for user content.  — Rina Van Orden

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