Don’t Lose Your Website’s Safe Harbor Protection Under the DMCA: New Procedures for Registering Agents

October 31, 2016Client Alert
Greenberg Glusker Client Alert

On October 31, 2016, the U.S. Copyright Office announced significant changes to its system for registering an agent to receive notifications of claimed copyright infringement, as required in order to take advantage of the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”).

Section 512 of the DMCA provides safe harbors from copyright infringement liability for online service providers (including website and app operators) when certain eligibility requirements are satisfied. These safe harbors may protect website owners from copyright liability in certain situations, such as where the website operator is not aware that content posted by a user on its website infringes someone else’s copyright.

In order for a website operator to avail itself of these safe harbor protections, the website operator must, among other requirements, designate an agent to receive notifications of claimed copyright infringement by making the agent’s contact information available to the public on its website, as well as by providing that information to the Copyright Office. If a website operator fails to register or maintain current and accurate agent contact information, both on its website and with the Copyright Office, it may lose the safe harbor protections.

Until now, website operators had to designate agents with the Copyright Office via mail-in paper filings, and the Copyright Office made scanned copies of these filings available to the public by posting them on the Copyright Office’s website.

Under the new system, as of December 1, 2016, website operators will be able to utilize a new online registration system to electronically submit designated agent information to the Copyright Office. The new system, which will be available on the Copyright Office’s website, modernizes the process and will result in a more usable and accurate searchable public directory of agents.

As part of the transition to the new electronic system, the Copyright Office’s current directory of designated agents, consisting of scanned paper filings, will be phased out by December 31, 2017. By this deadline, website operators must register an agent online using the new system, even if they previously registered an agent via paper filing. Failure to do so will result in loss of the safe harbor protection.

The fee for the new electronic filing system will be $6, a significant reduction from $105 (plus an additional fee of $35 for each group of one to ten alternate names used by the website operator) under the paper filing system. The new fee will be a flat $6, whether registering a new agent, or renewing, amending, or resubmitting a previously registered designation.

Finally, under the new system, agent designations will now expire and become invalid three years after registration. (The current paper-based system did not require renewal.) Accordingly, website operators must calendar reminders to renew their registrations every three years – otherwise they will lose the DMCA safe harbor protections.

If you own or operate a website or app, we are here to help you navigate the new DMCA agent registration process, help to track the new 3-year expiration periods, and to advise on the other conditions and requirements that you must satisfy to be entitled to DMCA safe harbor protection.