Lex Indicium

The “Lowdown” on DMCA Regulations and Take-Downs

November 27, 2017


Chances are, if you have ever posted or published content on the web, or your company operates a website, you have heard the term “take-down notice.” Perhaps you have even been on the receiving end of such a notice, claiming that content on your website is owned by a third party, and that if you do not remove the content, your website will be taken down or a lawsuit will be filed claiming copyright infringement.

These notices are part of a mechanism available to copyright owners—including those who have not registered their copyrights— under a U.S. law called the Digital Millennium Copyright Act.  This statute was enacted in the late 1990s as an attempt to bring the U.S. Copyright Act up to speed with society’s increased engagement via the Internet. The take-down procedure was introduced to provide a “safe harbor” for internet service providers that provide platforms for others to post content. Essentially, by following the procedures detailed in the DMCA, a website owner (or ISP) may be able to shelter him/herself from liability for infringement if a user posts infringing content, provided the website owner is not actively participating in or encouraging infringement and otherwise complies with the DMCA provisions.

Importantly, merely removing the offending content is not sufficient to avoid liability under the DMCA’s safe harbor provisions. Among other requirements, the statute requires ISPs to designate an agent to receive take-down requests, and that agent must register with the Copyright Office.

The process to register an agent with the Copyright Office is relatively straightforward, and the filing fee is nominal. Once the agent is registered, the website owner must implement a process to review and respond to take-down notices in compliance with the DMCA, and that process must be clearly communicated to users (usually via the website’s Terms of Service). While the process is straightforward, the failure to designate an agent or otherwise comply with the procedures can result in liability for infringement, even if the ISP otherwise complies with the DMCA. So, getting it right is important if you are an ISP or otherwise publish content online.

2017 Update! Action Required to Ensure Your Agent Is Still Authorized

Since the inception of the DMCA, the Copyright Office has provided “interim” procedures for registering agents for DMCA purposes. Thousands of website owners took advantage of the system and listed agents through these interim procedures. However, in 2016, the Copyright Office launched a new online registration system. Any DMCA agent registrations submitted under the old system—which includes any designation filed before 2016—will expire on December 31, 2017. Accordingly, online publishers of content who hope to take advantage of the DMCA’s safe harbor provisions must now re-register their agents online at the Copyright Office by December 31, 2017, or risk losing DMCA protections. DMCA designations are valid for three years, so it is important to ensure timely renewal in order to maintain a valid DMCA agent designation status.

Registering as an agent is fairly simple. If you do not already have an “account” with the Copyright Office, you will need to create one. Once an account is created, then the account holder may designate an agent for the company. Companies are free to designate either a person, a position (e.g. compliance officer), a department (e.g., legal department), or even an outside party, such as a law firm or vendor, as the agent.

Bottom line: Even if your company registered an agent with the Copyright Office in the past, you must now re-register an agent using the online system, and you must do so before December 31 or risk losing the benefits of the safe harbor.

If you have questions about copyright or need assistance with designating a DMCA agent, get in touch!

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