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 . . . .”