In the classic rock song “Light My Fire,” ‘60s icon and the Doors’ lead singer Jim Morrison sang, “The time to hesitate is through.”

If your company operates a website or blog that hosts user-generated content, and has yet to register an agent for receipt of copyright infringement notices under the U.S. Copyright Office’s new agent designation system, it’s time to light a fire. Failure to do so could significantly increase your company’s copyright liability exposure in connection with such hosted content.

Here’s what you need to know:

Under the Digital Millennium Copyright Act’s (DMCA) Section 512(c) safe harbor, website operators and other online service providers that comply with the eligibility requirements are shielded from copyright damages in connection with their hosting of infringing content uploaded by service users.

This powerful safe harbor has played a major role in the success of Facebook, Instagram, YouTube and other U.S. social media and Internet sites. But it also protects brands that host on their websites text, photos and videos uploaded by their customers.

An online service provider seeking Section 512(c) safe harbor protection must designate with the U.S. Copyright Office an agent to receive notifications of infringement from copyright owners. A year ago, the U.S. Copyright Office rolled out a new online system for the designation of agents, replacing a paper-based system that had been in place for nearly 18 years; the Copyright Office, however, provided a year-long grace period for online service providers who had registered agents under the old system to register those agents under the new system.

This grace period is coming to a close. Online service providers with an agent registered through the old system must register that agent through the new system by December 31, 2017, in order to maintain a valid agent designation.

This point is so important that we’re going to repeat it in bold italics:

Online service providers with an agent registered through the old system must register that agent through the new system by December 31, 2017, in order to maintain a valid agent designation.

Failure to register under the new system by the end of this year could result, beginning on January 1, 2018, in an online service provider losing the benefits of the Section 512(c) safe harbor in connection with its hosting of user-generated content.

We know it’s a busy time of year. We know that copyright issues are often not top-of-mind in the last few weeks of the year. We know that you are preparing for the holidays. But if your company hosts user-generated content and has yet to register its DMCA agent under the new agent designation system, you’ll want to make sure that this task gets moved to the top of the company’s “Things to Do Before Year’s End” list.

There’s a lot more to know about the new system. For example, the Copyright Office’s new approach expands the options available to online service providers in designating an agent. Under the old system, service providers were required to name a natural person or a specific position or title. The new regulations provide that a designated agent may be an individual, a specific position or title held by an individual, a specific department within the service provider’s organization or within a third-party entity or a third-party entity generally.

For purposes of designating an agent under the new system, related or affiliated service providers that are separate legal entities (e.g., corporate parents and subsidiaries) are considered separate service providers and each will need to have its own separate designation.

Further, the cost of designation under the new system is cheaper than under the old system. Each paper form designation under the old system would have cost a service provider $105, not including additional fees to list non-legal names used by the service provider; under the new online system, the designation fee is $6 with no additional fee to register alternative names (i.e., names that the public would be likely to use to search for the service provider’s designated agent in the Copyright Office’s online directory of designated agents).

Also, under the new system, online service providers will need to renew their agent designations every three years in order to maintain safe harbor protection in connection with their hosting of user-generated content. There was no renewal requirement under the old system. Although the new system will generate reminder notices as renewal deadlines approach, companies will want to ensure that these deadlines are noted on their own calendaring systems.

The Copyright Office has created a series of tutorials to assist online service providers in registering an agent under the new system. The tutorials titled “Designating an Agent for a Service Provider” and “Creating a DMCA Designated Agent Registration Account” provide step-by-step instructions on how to designate an agent through the new online system.

For more information regarding the new system (including the rationale behind the new system), check out our blog post on the subject from December 2016.

Here are our key takeaways regarding registration under the new system:

  • If your company hosts, stores or even links to user-generated content, it should ensure that it has registered an agent with the Copyright Office under the new system. If it hasn’t, it should do so by December 31, 2017.
  • The fact that your company may have already registered its DMCA agent with the Copyright Office under the old paper-based system will be irrelevant for purposes of maintaining DMCA safe harbor protection in 2018 and onward.
  • Under the new system, a company cannot make a single designation covering all of its affiliates; rather, each corporate entity that hosts user-generated content will need to do its own designation.
  • After registering under the new system, online service providers will need to ensure that they observe the “every three years” deadlines for renewing their registrations. The Copyright Office states that the new system will automatically send email reminders to the designated primary contract and, if provided, secondary contact, service provider and designated agent at 90 days, 60 days, 30 days and one week prior to the deadline for renewal; but companies will want to make sure that renewal deadlines are recorded on their internal calendaring systems.

So, if your company hasn’t done so already, it needs to get its DMCA agent registered under the new agent designation system. If it doesn’t do so, you may be singing a different song associated with Jim Morrison and the Doors: “When the music’s over, turn out the lights . . . .”

Well, as our readers know, we are modest people here at Socially Aware, and we don’t like tooting our own horn, but we do feel compelled to note that Socially Aware has been named one of the 50 best law blogs by the ABA Journal, the American Bar Association’s flagship publication!

To determine which blogs represent the best of law-related online media, the ABA Journal’s staff considered nominations by readers who wrote the publication “to share what they considered the most compelling corners of the web.” In a change from years past, judges from outside the publication also nominated blogs for consideration and helped to make the final determinations. You can find the names of those esteemed judges at the bottom of the page at this link.

The ABA Journal has annually compiled a year-end list of exemplary legal web content—which until this year was called the Annual Blawg 100—since 2007. Socially Aware was delighted to be included on that list in 2015 and 2016.

This year, to make room among the honorees for 25 law podcasts and 25 law-related Twitter accounts, the ABA Journal renamed the list the Web 100 and whittled down the number of blogs it recognized to 50. We’re thrilled to have made the cut, and to be included on a list of so many excellent blogs.

We remain as passionate about social media and technology law as the day we launched Socially Aware. And we’re thankful for the Socially Aware community—all the readers, contributors and colleagues who have been so important to the blog’s success.

We look forward in the coming year to continuing to share our thoughts and insights—and to hearing your thoughts and insights—on legal developments, business trends and emerging best practices relating to social media, mobile apps and other emerging technologies!

Here at Socially Aware, we focus on the opportunities and challenges presented by emerging technologies. With broad-ranging applications that could transform businesses of all kinds, blockchain is clearly one of the most disruptive and revolutionary technologies of all.

On Tuesday, December 5th in New York City, Morrison & Foerster will co-sponsor and host the second annual Blockchain Opportunity Summit, a daylong event that will explore strategies for incorporating distributed ledger systems to improve contracts, financial transactions, identity management and other facets of business.

Socially Aware contributors Joshua Klayman and Dario de Martino will join more than 30 other cross-industry blockchain experts who will identify and assess the logistical challenges, industry thinking and global regulatory trends currently affecting blockchain’s future.

For the conference agenda, speakers’ list and cost information (there is a charge to attend), please check out the event brochure. To register for the event, click here.

 

The government in Indonesia has warned the world’s biggest social media providers that they risk being banned in that country if they don’t block pornography and other content deemed obscene.

A member of the House of Lords has proposed an amendment to the U.K.’s data protection bill that would subject technology companies to “minimum standards of age-appropriate design” such as not revealing the GPS locations of users younger than 16.

A bill in Wisconsin would make impersonating someone on social media a misdemeanor.

Google’s general counsel wrote a blog post arguing that two new cases over right-to-be-forgotten requests and pending before the European Union’s top court put the search-engine company at risk of “restricting access to lawful and valuable information.”

Trucking is a $700 billion industry that stands to save billions from automation,  and will likely get self-driving vehicles on the road sooner than most people expected.

Social media platforms are often used to prey on potential sex trafficking victims, according to one FBI special agent.

A recent study shows that searching for information from unofficial sources on social media during a crisis is likely to result in the spread of misinformation and anxiety. Researchers recommend that, to quash rumors, emergency management officials should stay in regular contact with people even if they don’t have any new information.

This piece in Slate invites readers to imagine what the Internet would look like today if not for the passage of Section 230 of the Communications Decency Act, a statute that “says that in general, websites are not responsible for the things their users do or post.”

An op-ed in USA Today compares to swift spread of infectious diseases that resulted from the concentration of populations in urban areas to the swift spread of ideas that accompanied the invention of the Internet, and concludes that traditional training in critical thinking is as necessary to survive the latter as nutrition was to survive the former.

By allowing companies to provide consumers with verifiable information about things like their diversity-driven hiring practices and their products’ supply chains, blockchain is going to change the marketing industry significantly, the American Marketing Association reports.

A high school senior who was bullied in middle school created Sit With Us, the phone-based anti-bullying app that helps kids find a welcoming place to eat in their school cafeteria.

Following a recent U.S. district court’s ruling, foreign companies operating cloud-based services may find themselves subject to federal long-arm jurisdiction under the Federal Rules of Civil Procedure 4(k)(2), even if they have no physical presence in the United States. In reaching its decision, the court noted that the question was ripe for consideration by the court of appeals; thus, it remains to be seen whether the decision will stand if appealed.

In Plixer International, Inc. v. Scrutinizer GMHB, the District Court of Maine ruled that, while jurisdiction would not exist under Maine’s long-arm statute, the court had specific personal jurisdiction over a German company under federal long-arm statute. Rule 4(k)(2), the federal long-arm statute, provides that serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction as long as exercising jurisdiction is consistent with the U.S. Constitution and laws.

Continue Reading Foreign Cloud-Based Service Providers May Be Subject to Personal Jurisdiction in the United States

After British police unsuccessfully tried to get the blogging platform WordPress.com to remove offensive and threatening posts, the deputy leader of the UK’s Labour Party vowed to urge changes that would make the country’s laws less tolerant of online abuse.

As bipartisan U.S. legislation to prevent the appearance of foreign-entity-funded political ads on social media gains traction, Twitter announced that it will impose a “promoted by political account” label on election ads and allow everyone to see all ads currently running on the platform regardless of whom those ads target. These efforts will not prevent automated accounts known as “bots” from influencing voters or spreading fake news on Twitter, but an op-ed in The Guardian suggests the technology to overcome the bots problem exists.

While we’re on the subject of potential solutions for the problems that plague social media, one industry observer suggests that blockchain technology, which records digital events on a public ledger and requires consensus among users, could cure social networks’ fake-news and trolling problems, and prevent brands from purchasing fake followers.

Legislation is another way of discouraging undesirable online behavior. In Texas, “David’s Law” now requires school districts to create cyberbullying policies and to investigate bullying reports that involve students but take place off-campus or after school hours. And legislation that cleared a committee in Tallahassee would make threatening someone on social media in Florida a felony punishable by up to 15 years in prison.

Should artificial intelligence be regulated? Some experts believe that the time is now, on the cusp of the AI revolution.

Facebook acquired a nine-week-old startup whose app encourages teens to anonymously exchange positive feedback.

This piece quoting Socially Aware contributor Julie O’Neill explains how cross-device tracking can cause employees to expose their organizations to significant data security risks—especially if the employees use their personal devices to perform work-related tasks.

The online marketplace eBay launched a service for sellers of certain luxury wallets and handbags that relies on experts to verify the authenticity of the goods being sold, backed by a 200% money-back guarantee.

Instagram has become such an integral part of promoting restaurants that the Culinary Institute of America will begin offering electives in food photography and food styling.

Tips for becoming a social media influencer from a pair of fashion bloggers who made it big.

The U.S. Supreme Court on Oct. 16, 2017, announced it had granted the government’s petition for certiorari in United States v. Microsoft and will hear a case this Term that could have lasting implications for how technology companies interact with the U.S government and governments overseas. At issue is a consequential Second Circuit decision from last year that held that warrants issued under the Stored Communications Act (SCA) do not reach emails and other user data stored overseas by a U.S. provider.

While no federal appellate court besides the Second Circuit has squarely addressed the issue, multiple district courts outside the Second Circuit have declined to follow the Second Circuit’s reasoning in similar fact patterns involving other technology giants. The result is that U.S. law enforcement has different authority to access foreign-stored user data depending on where in the United States a warrant application is made. Google, for example, has expended significant resources to develop new tools to determine the geographic location of its users’ data so as to be in accord with the Second Circuit’s approach. Yet the company currently faces a hearing on sanctions for its alleged willful noncompliance with law enforcement requests in the Ninth Circuit based on a district court ruling that parted ways with the Second Circuit.

Continue Reading SCOTUS to Resolve Lower-Court Dispute Over U.S. Warrants Seeking Foreign-Stored User Data

Technology-company M&A slowed down significantly over the last year, with deal volume down by 15% across the globe in Q3 of 2017 compared to Q3 of 2016, and a $37 billion decline to $119 billion in Q3 2017 tech-company deal value compared to the same quarter in 2016.

“Outbidding by private equity acquirers” was the primary cause of the plunge, according to almost half (48%) of the industry decision makers who responded to the Tech M&A Leaders’ Survey from 451 Research and Morrison & Foerster. Indeed, 2017 was the first year in history that private equity firms announced more technology mergers and acquisitions than companies listed on U.S. exchanges.

In line with these trends have been the companies that fall within the tech industry’s social media subsection—defined by a spokesperson from Index, the source of the data cited here, as “companies that actually own and operate social media platforms, companies that provide services surrounding social media platforms (such as analytics and marketing automation), or companies that operate through social media.”

Continue Reading Pace of M&A Deals in Social Media Industry Slows After Record Year

With much fanfare, the Federal Trade Commission (FTC) continues to take actions relating to so-called “social media influencers” who allegedly fail to disclose material connections to the products or brands they endorse. Recurring enforcement actions and guidance—and the FTC’s ongoing promotion of its own efforts, such as through Twitter chats—make it clear that the FTC believes that its message has still not been heard by all of the players in this advertising ecosystem, including influencers themselves.

In short, any endorsements in any medium where the endorser has a material connection of any kind to the endorsed advertiser must be disclosed.

The most recent developments include an enforcement action against a company—and two of its officers—in connection with endorsements of the company made by the officers in YouTube videos and in social media.  Before turning to this case, however, we provide a brief overview of how the FTC has gotten here. Continue Reading Brands Beware: FTC Continues Campaign on Social Media Influencer Disclosures

As part of a new tracking system, the Department of Homeland Security will be keeping records of immigrants’ social media handles and search results.

Russia to Facebook: Turn over user-information or risk being blocked.

Google is ending a policy that required news sites to allow users at least one free article-click.

A new social media platform called Steemit will pay users in cryptocurrency for posting, commenting, or liking content—and its market capitalization is around $294 million.

Not everyone is a fan of Twitter’s new 280-character limit.

A type of biometric payment system that identifies a checking or credit account owner based on the unique vein-pattern in his or her fingertip would allow consumers to shop without cash, cards or devices.

Initial coin offerings (ICOs) are allowing startups that develop applications for blockchain technology to raise money without giving up the equity or decision-making power they would have to surrender to venture capitalists.

In this Wired op-ed, a former prisoner argues that allowing inmates controlled social media use might reduce recidivism and help the cell phone contraband problem.

Young kids are the new social media celebrities—and the law isn’t clear on whether they’re owed any of the money that their parents collect as a result of the viral videos.

When a social media celebrity famous for posting photos of herself posing in fitness gear changed the direction of her Instagram account to one that promotes body acceptance, she initially lost 70,000 followers, but she ultimately wound up with more fans than ever.

Kudos to Netflix’s in-house counsel for crafting a cease-and-desist letter for brand marketing in the modern age.