Preserving the DMCA Safe Harbor - Why You Should Register Your DMCA Agent Now

March 21, 2017

The Digital Millennium Copyright Act (DMCA) established a safe harbor for online service providers (OSPs) which benefits any website that contains content from third parties. The safe harbor is especially important for those OSPs hosting and allowing posting of third party content since the safe harbor insulates the OSP from a claim for copyright infringement unless the OSP directly knows or should know that the content is infringing another's copyrights.

This safe harbor is important to companies such as YouTube, where people commonly post videos using copyrighted music, or to retailers who permit customers to post product reviews. It's not uncommon for the person posting not to have permission to use the copyrighted music. In the retail context, the safe harbor provides a defense for the retailer if the product review is actually referring to a product which is a counterfeit or an infringement of the owner's copyright.

Recently, the U.S. Copyright Office stated that in order to keep their safe harbor protection intact, OSPs must register their DMCA Agents with the Copyright Office's new online registration system no later than December 31, 2017.

The DMCA Agent is the person at your company that receives notifications of claimed copyright infringements; it is the OSPs obligation to actively monitor that email address, investigate and respond. As part of the new registration process, the OSP must also list any of its "alter egos," which the public might use when searching for the DMCA Agent. So if your company name is ABC Corp, but the public knows you by your brand name ALPHABETACO, your brand name must also be listed in your registration. This requirement exists because the system doesn't permit scrolling of an alphabetical list; the public must search by entering the name of the OSP.

What hasn't changed is the requirement that the OSP include on their website information about the designated agent. Most websites comply by having a separate paragraph in the "Terms of Use" section that identifies the DMCA Agent (name, email address, physical address). OSPs also have an affirmative obligation to keep the DMCA Agent information up to date on their website and in the new database. The information must be renewed every three years. The Copyright Office's information pages can be found here and here.

Even though the deadline is months away, we recommend filing now and putting the three-year renewal date on your calendar or on your law firm's docket system.

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