Published by Thompson Bukher - February 1, 2017 - Intellectual Property Law

The U.S. Copyright Office has adopted a new process for registering Agents under the Digital Millennium Copyright Act (“DMCA”). The new system has simplified the process but has also created a renewal requirement as well as discarding all prior registrations.

The Importance of DMCA Agent Registration

Registering a DMCA Agent with the US Copyright Office has become a vital part of almost every website operator’s operations–arguably as important as paying for domain name registration and hosting costs. This is owed to the DMCA’s Section 512 “safe harbor” provision which protects website operators from claims of copyright infringement brought by content owners.

The inclusion of the safe harbor provision was an attempt to balance the interests of website operators, copyright owners, and internet users and has arguably served that purpose for nearly two decades.

Websites that allow users to post content could reduce their liability for copyright infringement claims arising from content uploaded by their users by:

  • Registering a DMCA Agent responsible for receiving takedown notices with the Copyright Office;
  • Listing that Agent’s contact information on their website;
  • Informing users that repeated posting of infringing content will result in termination of their right to access the website; and
  • Removing the infringing material identified by the content owner.

DMCA Agent Registration Prior to December 1, 2016

Prior to December 1, 2016, DMCA Agents were designated by completing a paper form and mailing it to the US Copyright Office. Registration cost $105 and the paper form could take weeks or months to process. Once complete, DMCA Agent registration remained valid indefinitely and website operators were only required to update their registration when their Agent’s information changed. As long as the website operator complied with the additional requirements listed above it would enjoy reduced exposure to copyright infringement liability.

The new system has introduced two major improvements and one glaring drawback to this process.

New Areas of Concern for Website Operators

The new online-only system, launched on December 1, 2016, boasts a drastically reduced $6 filing fee and a simple online registration form which takes approximately 10 minutes to complete and, once submitted, provides instant registration. While the significant reduction in cost and waiting period are obvious improvements over the old format, the new system creates a new vulnerability for website operators: All DMCA Agent registrations expire and become invalid after three years–requiring website operators to regularly renew their registration in order to maintain liability protection.

This new requirement can have drastic legal and financial consequences for website operators. The actual task of renewing a registration is simple, quick, and cheap. Remembering to do so, however, may prove difficult, especially for startup providers with limited staff and no dedicated legal, IT, or other form of compliance personnel. The periodic renewal requirement thus increases the odds of an inadvertent lapse in registration and subsequent exposure to potentially costly liability.

Important Alert

In addition to requiring website operators to renew their registration every three years, the U.S. Copyright Office will also be discarding all registrations previously filed under the paper system. Website operators who have yet to re-register through the online system must do so by December 31, 2017 in order to maintain protection.

Contact

If you have questions about the new rule or how your company can take advantage of the DMCA protections, please contact Tim Bukher or any member of the Thompson Bukher Intellectual Property Practice at (212) 920-6050.

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