The Digital Millennium Copyright Act [“DMCA”] is a foundational law of the Internet. The Copyright Office launched a new DMCA agent registration system on December 1, 2016, which contains traps for unwary businesses. Let’s take a look at how to avoid the minefield.
The DMCA provides online businesses with immunity from copyright infringement claims associated with user-generated content. Consider Facebook as an example. Mary has a Facebook account. She reads an interesting article on another site about a particular yoga technique, copies the images in the article, and posts the photos to her Facebook page. As long as Facebook complies with certain requirements in the DMCA, it cannot be held liable for monetary damages for copyright infringement claims based on the posted yoga pictures.
To gain the immunity, known as the DMCA safe harbor, one must designate an agent to receive complaints from copyright owners. The agent must be listed on the site or app in question, and you must register the individual with the Copyright Office. The Office then publishes the agent information in an online database available to the public online.
Old vs. New Registration System
Given the DMCA applies to the Internet, one would be excused for assuming the Copyright Office created an online registration system for agents soon after the law was enacted in 1998. It did not. Instead, anyone with a website or app was required to send in a paper registration form via traditional mail. The Copyright Office had one clerk processing the thousands of filings submitted, which resulted in processing times of one to two months. Frustrating does not begin to describe the situation.
This past December, the Copyright Office finally launched an online registration system for DMCA agents. The new system is excellent and comes with the added benefit of a fee reduction from $140 to $6. However, you must be wary of the following traps.
The first trap is the lack of carryover for agent registrations from the old system to the new. If you’ve previously registered an agent with the Copyright Office, your registration means squat. Assume you have registered a DMCA agent for a forum. You must re-register in the new system. Don’t assume your current listing covers you. It does not. Re-register before the end of 2017 or your registration with the Copyright Office will be invalidated.
Many businesses listed post office boxes or similar services as their business address when using the old registration system. The Copyright Office has clarified this is approach is no longer allowed. You must list the “real” address for the business; the location where a copyright owner can serve you with legal process. When registering, the database will show 1) the name of your business, 2) the street address of the business, and 3) the domains or apps covered by the designation. Obviously, the listing in the online Copyright Office database will also show the agent information. If you need an agent, consider us.
Obviously, the Copyright Office position could prove problematic for people working from home. The powers that be at the Copyright Office have provided a collective shoulder shrug on this issue. However, you can petition the Office for the right to use a post office box or similar service as your address. How? The Copyright Office has provided no guidance on the petition process, so sending an email request is advisable.
One and done – this was the nature of the old registration system for DMCA agents. As long as no information in the agent registration changed, your filing with the Copyright Office was good for as long as you stayed in business. No longer. The Copyright Office now requires parties to renew DMCA agent listings every three years. The good news is the cost is only $6, and the Office will send you notice of the renewal.
In truth, the new system is much better than the old paper registration process. Registrations are instantaneous, and the price drop from $140 to $6 is nothing to sneeze at. If you need an agent, contact us. If you are looking for instructions on how to file, see the resources we’ve listed below.
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