I see more than a few people online suggest it isn’t necessary to register a DMCA agent. Such views are wrong. You must select and designate a DMCA agent to gain immunity from copyright infringement lawsuits. A scenario where a website loses DMCA protection is not as uncommon as you might believe. One company, Allvoices, learned a painful lesson about what can happen when the registration is not undertaken.
No DMCA Agent? No Protection For You!
Allvoices runs an online community platform. As with most community websites, members are allowed to post content on the site including text, images, videos, and audio. In short, Allvoices qualifies for the DMCA safe harbor as a classic Internet service provider.
Okay. A quick refresher. What is DMCA? The DMCA provides Internet service providers, such as Allvoices, with immunity from copyright infringement claims based on content uploaded by users. To gain this immunity, the Internet service provider must comply with certain requirements detailed in the DMCA. One is to designate an agent as detailed in the code:
(2) Designated agent. – The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.
And Allvoices? Despite being in business since 2008, the company did not get around to designating and registering an agent until March of 2011. The late registration appears to be the result of the company realizing it needed to comply with the DMCA, most likely on the advice of legal counsel. Regardless, the company had operated “naked” since 2008, a decision that would come back to haunt it.
Professional Photographer Sues
David Oppenheimer is a professional photographer. He alleged that users of the Allvoices platform were uploading his photographs without consent as early as February 2011, actions that constituted copyright infringement. Oppenheimer argued Allvoices could not take advantage of the safe harbor protections provided under the DMCA since the company failed to designate an agent until March of 2011.
Legal counsel for Allvoices made a valiant effort to argue the protections were still available to the company. After all, what did a one month delay between the posting of the images and the registering of an agent really matter? No cases were offered to support this proposition because, frankly, none exist.
The attorneys for Oppenheimer countered by noting the clear language of the DMCA states the immunity safe harbors “apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement.” Since Allvoices had no agent at the time of the infringement, it could not take advantage of the safe harbor provisions regardless of whether the time in question was one month, one year or one decade.
The court agreed with Oppenheimer. The judge ruled the designation of a DMCA agent is mandatory if an Internet service provider wishes to take advantage of the DMCA protection. One has to imagine the judge was feeling less than charitable towards Allvoices. The company had three years to register a DMCA agent. It simply failed to get around to it. Of course, other companies have made the same mistake.
Learn the lesson. You need an agent if you allow visitors to upload content to your online property even if that content is just text. Contact us today to arrange for a DMCA agent for your site, app or other online platforms.