Dec. 31 Deadline to Preserve DMCA Service Provider Immunity

Advertising Law

By Dec. 31, 2017, eligible service providers must use a new online system at the Copyright Office to designate agents to receive Digital Millennium Copyright Act (DMCA) takedown notices. This is true for all eligible service providers, including those with existing paper designations, as all designations filed using the old paper-based system will expire at the end of the year. By satisfying this and other important requirements, eligible service providers ensure that they qualify for or maintain their DMCA safe harbor immunity from liability for the copyright infringement of their users.

If you operate a website or service that allows users to upload, post or transmit content (including user-generated content, blog post comments or links to third-party websites), you probably have designated an agent with the Copyright Office to receive (DMCA) takedown notices. Registering a designated DMCA agent and satisfying the other requirements of the DMCA safe harbor provisions enable eligible service providers to benefit from the DMCA’s safe harbors, which shield them from liability for infringing copyright content posted on their site or service by their users.

Based on a recent review of registrations on file, the Copyright Office has found that as many as 65% of service providers may not be compliant with the safe harbor provisions of the DMCA solely due to out-of-date and inaccurate agent designations. In addition, recent rule changes at the Copyright Office mean that even service providers with accurate registrations must renew them by end of year or the registration will expire. Having a registration that is noncompliant or expired carries big risks for service providers—they lose their safe harbor immunity and may be held directly liable for the copyright infringement of their users.

If you believe your website or online service may be affected by these rule changes, you should confirm whether you previously designated a DMCA agent and whether the registration is still accurate. You may do so by searching for your company, domain name or website name in the archived list, which is located at https://www.copyright.gov/onlinesp/list/a_agents.html.

If you know you have filed a registration previously, but are unsure of whether you have renewed the registration under the new rules, you may search for your company, domain name or website name in the current database, which is located at https://dmca.copyright.gov/osp/.

The new rules make complying with the safe harbor provisions cheaper and easier than ever, but add a few ongoing requirements. And as always, filing and maintaining an accurate designation is only one of the compliance requirements eligible service providers must adhere to in order to benefit from the DMCA’s safe harbor immunity provisions.

To file a new designation or a renewal, you may visit https://www.copyright.gov/dmca-directory/ and follow the instructions on the right side of the page to access the registration system. Of course, you may also contact Manatt’s Intellectual Property Group. We can assist with confirming your compliance and renewing your registration, and provide you with additional information regarding what websites or services should consider filing a registration and on the other requirements to qualify for the DMCA’s safe harbors.