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Blog

Ensure Your Safe Harbor Protection – (Re)Designate Your DMCA Agent This Month

December 6, 2017

Blog

Ensure Your Safe Harbor Protection – (Re)Designate Your DMCA Agent This Month

December 6, 2017

Back to Fish's Trademark and Copyright Blog

 

The Copyright Office has announced a change that requires all internet service providers to re-designate their DMCA agent electronically by December 31, 2017.

The Digital Millennium Copyright Act (DMCA) offers a safe harbor to internet service providers (ISPs) for certain claims of copyright infringement. [1] The DMCA defines an ISP as “a provider of online services or network access, or the operator of facilities therefor.” [2] This definition includes any “entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” [3] Search engines, directories, hosts of message boards, online marketplaces, and other websites that permit users to post content frequently fall within this description. The DMCA’s safe harbor protection is critical for those made vulnerable to claims of copyright infringement based on the conduct of third parties.

The DMCA contains various requirements that ISPs must meet in order to be eligible for safe harbor protection. For example, ISPs are required to implement adequate notice-and-takedown procedures for claims of copyright infringement and expeditiously remove allegedly infringing content upon receiving notification. ISPs are also required to appoint an agent to receive notifications of claimed copyright infringement. To properly designate an agent, ISPs must (1) make the agent’s contact information publicly available on the ISP’s website and (2) provide the Copyright Office with the agent’s contact information. The DMCA requires that this information include the agent’s name, address, phone number, and email address, as well as “other contact information which the Register of Copyrights may deem appropriate.” [4]

While the Copyright Office has long used a paper-based system through which agents were designated, it introduced an electronic registration system in December 2016 and is requiring a re-designation of all DMCA agents via this online system. Previously filed paper designations will continue to be effective until the ISP has registered using the new online system or through December 31, 2017, whichever is earlier. Failure to designate an agent with the Copyright Office may result in a loss of safe harbor protection from claims of copyright infringement.

To effectively register an agent through the new online system, all ISPs must provide the Copyright Office with (1) the name, title, organization, address, phone number, and email address of two representatives of the ISP, (2) the name, address, phone number, and email address of the ISP, (3) alternate names for the ISP, including the name of its website/service and the associated domain name, and (4) the name, organization, address, phone number, and email of the designated agent. Further, ISPs must renew their agent designations every three years. This can be done either by amending the designation to update information as necessary or by resubmitting the designation altogether.

Given the value of the DMCA’s safe harbor, and the cost of designation—$6.00 for three years—designating, or (re)designating, your agent now is a no-brainer. So start 2018 off right! To register your agent, go to: https://www.copyright.gov/dmca-directory/.

[1] See 17 U.S.C. § 512.
[2] 17 U.S.C. § 512(k)(1)(B).
[3] 17 U.S.C. § 512(k)(1)(A).
[4] 17 U.S.C. § 512(c)(2)(B).

Blog Authors

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Kerrijane John | Law Clerk

Kerrijane John uses her years of experience living and studying in China and her knowledge of trademark and copyright law to focus on helping clients combat counterfeits. While still a law student, Kerrijane interned at the Human Rights and Atrocity Prevention Clinic at the Benjamin N. Cardozo School of Law, where she represented an asylum...

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Kristen McCallion | Principal

Kristen McCallion is a Principal in the New York office of Fish & Richardson and Chair of the firm’s Copyright Group. Ms. McCallion represents businesses in the consumer products, Internet, media, and interactive entertainment industries in copyright, trademark, trade...

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