I find it can be easy to lose the forest for the trees when discussing the DMCA because I’ve worked in the field for so long. Sometimes it helps to circle back around to the basics. Yes, we offer a DMCA agent service, but what is a DMCA agent is a common question for those new to the law. Let’s take a look.
Lo, it was the late 1990s and this thingy we now call the Internet was but a twinkle in the eye of some smart people. Well, at least the commercial version. The Internet was so new that Amazon.com had only been around since 1994 and was a struggling online store trying to sell books. Google – mighty Google – wouldn’t launch until September 1998.
The commercial Internet was wearing diapers and a bit colicky. The federal government decided it was time to give this new medium a boost, so Congress passed a number of laws designed to minimize the threat of litigation against online companies. The Digital Millennium Copyright Act – or “DMCA” – was one of these laws.
The DMCA covers several different topics, but the biggie for the online world is Section 512. This section is known as the safe harbor provision. In it, Congress grants any “internet service provider” immunity from copyright infringement claims based on copyrighted content uploaded to a platform of the internet service provider by users. In English, this clause means that a website or app cannot be sued for copyright infringement if a user uploads the copyrighted content of someone else. For example, if I were to copy a graphic of the coronavirus from the BBC website and post it to my Twitter account, the BBC could not sue Twitter. The British company could sue me directly since I posted the graphic, but not Twitter thanks to the immunity granted under the DMCA.
The safe harbor provision is critical because the decision by Congress to grant immunity gave rise to the interactive web we see today where user-generated content is king. Without the DMCA, YouTube would have never launched in 2005 nor Facebook in 2004. Any site that allowed users to upload content would’ve arguably died within months of launching because these companies could not afford to fight the hundreds of copyright infringement lawsuits filed by copyright owners.
The DMCA safe harbor comes with a catch. Anyone wishing to qualify for the immunity must comply with a number of requirements. Choosing and declaring a DMCA agent is one of those requirements.
What is a DMCA Agent? An agent is a person who is authorized to receive copyright complaints, called takedown notices under the DMCA, on behalf of the website or app in question. The agent must be listed on the website or app along with their address, phone number, and email address. The agent must also be registered with the Copyright Office in a database of agents that is available online to the public and attorneys.
A few companies misuse the title “DMCA Agent” online. They produce marketing pieces that imply an agent goes out and hunts down sites that have stolen your content. This usage is incorrect. As the DMCA code states,
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.
Agents receive DMCA takedown notices. They do not serve such notices. Of course, marketers will be marketers.
What is a DMCA agent? A person selected to receive copyright complaints on behalf of an Internet service provider, the designation of which is a mandatory requirement for those businesses who wish to qualify for the safe harbor immunity from user-generated content copyright claims under the DMCA.
Feel free to contact me if you have any questions,