The Digital Millennium Copyright Act of 1998, better known as the “DMCA“, is a federal law written to streamline copyright infringement matters online. Although controversial, the law provides protection to an online platform such as a website or app that allows user-generated content. To gain this protection, an online operator must take a number of compliance steps including designating and registering a DMCA agent.
To understand why you need a DMCA agent, it first helps to understand copyright infringement and how it applies online. Don’t worry. We will not be getting too technical here.
Copyright is the protection of a fixed “work.” The work can be the text of a book, a photograph, the code of a software program and other similar expressions. You must have the permission of the owner of a copyright to republish it. Republishing the content without such permission is “copyright infringement.” Damages for copyright infringement can be as high as $150,000 a violation or actual damages.
As an example, a major copyright infringement case was in the news recently. Songwriters Robin Thicke and Pharrell were recently found guilty of infringing on a Marvin Gaye copyright in their “Blurred Lines” song. The judgment ended up being in the $7.3 million range. In short, copyright infringement is a serious concern, but the DMCA can help you avoid such risks.
DMCA Safe Harbor
Copyright infringement applies to the web. The nature of the Internet makes it difficult, however, to apply the law to specific digital situations not seen in the physical world. Consider a site such as Facebook that receives hundreds of millions of posts a day from users. Should it be held liable for the content being uploaded by those users? If so, Facebook would need to hire millions of service reps to review each post, which would chill the free exchange of information on the site.
a. Congress Acts
Congress was made aware of this issue in the late 1990s. The legislative body decided as a matter of public policy that internet service providers would not be held liable for copyright infringement based on content uploaded by their users. “Internet service providers” include practically any online platform that allows users to post content including social media sites, video sites, smartphone apps, and even sites that merely allow people to comment on articles such as blogs. 17 United States Code Section 512(c) contains the specific language granting immunity:
(c) Information Residing on Systems or Networks At Direction of Users.—
(1) In general. – A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider…
b. User-Generated Content Only
The DMCA safe harbor from lawsuits only applies to the online platform in question. It does not protect the person who posts the content. Assume I see an amazing photograph online and decide to post it to my Facebook page. The photographer can pursue me for copyright infringement, but not Facebook.
There is, of course, a cost associated with this safe harbor protection. The internet service provider must follow a set of compliance steps. The failure to follow those steps results in the loss of the safe harbor, to wit, the copyright holder can sue you as well.
What are these compliance steps? You can probably guess one at this point…
Compliance – DMCA Agent
Perhaps the first step you must take is to designate an agent to receive copyright infringement complaints, known as takedown notices, on your behalf. We again return to the DMCA text to find the requirement detailed in Section 512(c)(2):
(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.
This text is the reason you need to designate a DMCA agent. If you fail to take the step, you waive the protections provided under the law and open yourself up to a wave of potential copyright infringement lawsuits. The fact you did not personally upload the offending content is not a material defense. You waive that defense by failing to comply with the DMCA.
Why do you need a DMCA agent? The law requires it if you wish to take advantage of the safe harbor provisions provided to online operators. Trust me. You definitely want to take advantage of this immunity. Contact us today to learn more about our DMCA agent service.
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