Changes in designation of DMCA Agents

Here at Shay Phillips, Ltd., we are glad to serve our many internet and technology based companies as clients, helping them with their intellectual property, business, litigation and other matters. However, an upcoming change required by the United States Copyright Office requires the attention of all businesses and individuals that have websites, not just "tech companies." Read on to learn about the how and why.

The "too long, did not want to read" version is that any person or business with a website needs to update its Designated Agent under the DMCA with the Copyright Office soon to maintain Safe Harbor protection from allegations of Copyright Infringement.

What is the DMCA?

The internet as we know it exists because of the Digital Millennium Copyright Act. In 1998, Congress enacted the DMCA to address intellectual property issues in the wake of the Internet's growing adoption. Websites such as Youtube, Google search results, Facebook, Instagram, and so on, rely on content generated by users. It is likely unsurprising that many users may not upload content they generated. Rather, many simply post clips of movies, pictures taken by others, or other creative content generated by others. 

Absent any analysis of copyright defenses that might apply, those users may have infringed on the copyrights of the person who created that original work. Importantly, Youtube would infringe by also displaying, copying, and distributing that work. Similarly, your business might be infringing a copyright by hosting content from website users. No one wants to receive a summons for a copyright lawsuit. This is why your business should care about the DMCA.

The DMCA provides internet service providers, which under the Act's definition includes many websites, with a so-called Safe Harbor. The Safe Harbor shields companies from liability for infringement resulting from users posting infringing content on the company's website. This exists for situations when a user posts the material and the company truly does not know is infringing. If the company knows material is infringing and does not remove it or exerts control over the conduct, the Safe Harbor is unlikely to help.

Does the DMCA cover your website?

As always, it depends. First, you have to be a service provider. We can help you determine if that is the case. After that, you also needed to:

  • provide required contact information for a degistered agent to the U.S. Copyright Office and on your website;
  • establish a repeat-infringer policy including potential termination of use and communicate the same to your users;
  • remove content expeditiously in response to any DMCA takedown notice; and
  • not interfere with standard technological efforts to identify and protect copyrighted works.

Many companies rely on the existence of the DMCA, expecting to be covered, without actually registering its DMCA agent or actually establishing a repeat-infringer policy. These are things we can help our clients prepare. But, even those who have complied could be in for a surprise come December 1, 2017.

DMCA rule change concerning designated agents

On December 1, 2017, the rules for registering Designated Agents will change. The prior paper registration system, somewhat ironic given the Act's name, "Digital," and its coverage of the Internet, will be replaced with an online registration. All prior paper registrations will become invalid on December 31, 2017. Moreover, the registrations do not last forever and will need to be renewed every three years. There is good news, though. The cost to comply with the DMCA will be lowered as registration fees will decrease.

What should your business do?

If you already fully comply with the DMCA's requirements, be sure to re-register your Designated Agent soon. If you have not complied with the requirements, including things like establishing repeat infringer policies, you should do so and register your Designated Agent. And, you can should feel free to call us if you have any questions.