A Trap for the Unwary: DMCA Safe Harbor Registration Alert
Under the Digital Millennium Copyright Act (DMCA) to take advantage of the safe harbor from copyright infringement liability, an online service provider (OSP) has to register and designate an agent with the US Copyright Office to receive "takedown notices" of user-generated content – the notices from the actual copyright holder saying, essentially, "hey, someone posted my stuff on your website, so take it down!" Previously, one-time paper registration was all that was needed.
Now, the US Copyright Office recently announced significant changes to the registration/agent designation process effective December 1, 2016 affecting all OSPs (even those already registered).
Here's what you need to know about the changes:
- Electronic Registration Only. As of December 1, 2016, registration must be online. An OSP must register itself through an electronic filing with the Copyright Office.
- Electronic Designation of DMCA Agent. When registering, an OSP will need to designate a DMCA Agent by providing "the name, address, phone number, and electronic mail address of the agent." This can be a specifically named individual, a specific position or title (e.g., Copyright Manager), a specific department within the OSP or its agent (e.g., Copyright Compliance Department) or a third-party entity in general (such as a DMCA takedown service provider).
- Keep it up to date. If there are any changes to the registration information, including the DMCA agent information, the OSP must make the necessary changes to its online registration. Courts have held that failure to do so could jeopardize your safe harbor.
- Deadline 12/31/17. If an OSP is currently registered with the Copyright Office under the old rules, it must electronically re-register/designate an agent NO LATER THAN DECEMBER 31, 2017.
- Renew Every Three Years. An OSP must renew its online registration every three years. (Luckily, the Copyright Office will send email notifications of an upcoming renewal date to the OSP.)
It's a perfect time during this year-end wrap up for an OSP to evaluate its DMCA safe harbor practices and re-register electronically with the US Copyright Office. Santa is watching.