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Online Service Providers: Don't Lose Your DMCA Safe Harbor ProtectionsAuthored by: Hunter S. Freeman and Douglas W. Kim
November
17, 2016
On or before December 31, 2017, service providers must provide new designated-agent information to the U.S. Copyright Office through its new online registration system. Otherwise, the online service provider will not be eligible for the safe harbor protections of the Digital Millennium Copyright Act (the "DMCA"). The notification of this new regulation can be found by clicking here.
The safe harbor provisions of the DMCA provide for a strong shield against copyright infringement liability that is based upon content posted by internet users. However, this shield requires that the online service provider strictly comply with all of the requirements of the DMCA, which will now include the online registration of a designated agent for the online service provider. When these issues have been litigated, some courts removed the shield if the online service providers had not strictly complied with the DMCA.
The registration of an agent generally applies to companies that provide website hosting, email services, blogs, chat rooms or other venues in which user-generated content may be posted online. While the website is not yet operational, the new system will be accessible at www.dmca.copyright.gov/login.html. Companies that have previously designated an agent through a paper submission have until December 31, 2017. Companies that have yet to designate an agent with the Copyright Office in any manner will be ineligible to seek refuge under the DMCA's safe harbor provisions until the new designated-agent information is electronically submitted. In either case, the designated-agent registration has to be renewed every three years.
Since 1998, the Copyright Office has maintained a ''current directory'' of agents who have been designated by online service providers to receive notifications of claimed infringement. While the DMCA requires service providers to update their designations with the Copyright Office as information changes, the Copyright Office believes that many have failed to do so, causing much of the information in the directory to become inaccurate and out-of-date. Therefore, the Copyright Office designed and launched a new electronic system for online service providers to register their agents. While there are new fees associated with the new system, they are minimal and are well worth the protections provided by the DMCA's safe harbor provisions.
Please contact us if you would like more information on the new regulations, the registration process or if you wish for us to docket the renewal dates as a periodic reminder for you to renew your designated-agent registrations. Without the safe harbor protections, an online service provider can be exposed to copyright infringement, especially when the content underlying the infringement is generated and/or posted by an internet user without the online service provider's knowledge.
If you have questions, please contact the authors of this alert, Hunter S. Freeman and Douglas W. Kim, members of the firm's Intellectual Property and Litigation practice groups.
