You might expect my answer to this question to be an automatic yes given the nature of our service. It is not. There are instances where there is no need for a DMCA agent. These instances don’t even involve bizarre scenarios such as the apocalypse…although you would not need an agent then. So, do I need a DMCA agent for my website or app? Let’s take a look.
So, what is the critical factor in determining whether you need a DMCA Agent? Whether you allow visitors to post anything to your site. If you do, then get an agent. If you do not, then don’t worry about it.
Ah, but what about third-party sites? What if you post something to Instagram and someone responds with a post that you know is infringing. Do you need a DMCA agent then? What are your duties? The answer is you do not need a DMCA agent. You are only responsible for your platforms, not the sites or apps of others. Instagram will have its own DMCA agent and process for dealing with complaints. You also do not have a duty to notify Instagram or anyone else of the infringement.
Now, what if you want to file a DMCA takedown notice against someone who has swiped a piece of your content? Do you need an agent? No. There is a good bit of confusion regarding this area. A DMCA agent receives complaints on behalf of an internet service provider. An agent does not issue complaints to various platforms under the language of the DMCA. Why then is there so much confusion? Because a number of businesses that will file claims for you call themselves agents for marketing purposes. They are not “DMCA agents” as defined in the code; just people trying to make a buck.
So, when asking whether you need a DMCA agent for your site or app, focus on whether visitors are allowed to upload anything. If yes, then get an agent. If not, then no DMCA agent is required.
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