If you have a website, you need to reregister your designated agent with the Copyright Office. If you don’t, you will lose the safe harbor protections for copyright infringement liability afforded by the Digital Millennium Copyright Act (DMCA). A new Copyright Office rule requires reregistration every three years, via an online system that opens December 1, 2016.

Under the DMCA, online service providers meeting certain criteria fall within a safe harbor from copyright infringement claims resulting from storage of content posted by a website user. User content could be anything a user uploads or posts to a site or service, such as photos or videos for storage or sharing, or text comments on a blog or discussion thread. If they do not own the rights, you could be infringing—making the DMCA Safe Harbor important to limiting liability.

To benefit from the safe harbor, a service provider must designate an agent to handle takedown notices from copyright holders, must register the designated agent with the Copyright Office, and must keep the agent information updated (for example, if contact information changes). The service provider must adopt and implement a policy providing for termination, where appropriate, of accounts of repeat infringers.

Before the new rule, designated agent registration and information updates occurred by a paper registration process only. Absent any necessary updates, it required a one-time registration and fee. The new rule’s requirement that companies reregister every three years will be more burdensome for service providers and will require careful docketing and management of registration deadlines.

The new electronic system will improve upon what was viewed as a clunky paper filing system and should offer copyright holders and those searching the designated agent database a more efficient way to find registered agent contact information for a website. The Copyright Office hopes the reregistration requirement will lead to more accurate database information. The fee has been reduced to a flat fee of $6 from a prior fee of $105 per initial designation and $35 for each group of 10 additional designations.

All service providers that previously designated agents and registered using the paper filing system will have until December 31, 2017, to reregister.

Companies that allow their registrations to lapse by inadvertently missing the December 31, 2017, deadline will lose the benefits of the DMCA’s safe harbor and risk liability for copyright infringement challenges. Companies seeking safe harbor protection should therefore reregister as soon as possible after December 1, 2016,—or register anew if not previously aware of the registration requirement—and employ docketing reminders to ensure future deadlines are met.

Attorneys in Ballard Spahr's Intellectual Property Group can help companies operating websites and delivering content register DMCA agents under the new electronic filing system, can help prepare policies concerning takedown demands, and can ensure website terms appropriately address user content and DMCA-related practices.

Copyright © 2016 by Ballard Spahr LLP.
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