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10.30.2017 Digital Millennium Copyright Act (DMCA) – Designate Your Agent. By: Robert Van Arnam & Dirk Lasater

The U.S. Copyright Office issued a rule change to the Digital Millennium Copyright Act (“DMCA”) § 512 safe harbor provision that affects the rights of online service providers that are new to the DMCA system or those that designated a DMCA Agent prior to December 1, 2016.  Both types of providers must designate (or re-designate) a DMCA Agent with the Copyright Office on or before December 31, 2017.

The DMCA provides a safe harbor from copyright infringement liability for online service providers (including related or affiliated providers that are separate legal entities, each of which must have its own separate Agent designation) that host user generated content on those providers’ systems or websites.  17 U.S.C. § 512.

Among other required steps, an online service provider must designate an Agent to receive notifications of claimed copyright infringement to avail itself of § 512 of the DMCA, which limits copyright infringement liability under certain circumstances when user-generated content is transmitted, cached, hosted, stored, or linked on a website, application, or blog by the online service provider.  Under the new rule, Agents must be registered on the DMCA Agent Directory on or before December 31, 2017.  This is required even if the online service provider named an Agent in the previous paper system prior to December 1, 2016.  If a new Agent designation is not made by the deadline, the pre-2016 agency expires and becomes invalid on December 31, 2017.  Furthermore, agency designations are no longer perpetual and now require renewed registration every three years.  As a reprieve, the cost for registration has dropped from over $100 to only $6.

Accordingly, if you are (i) a new online service provider without a designated DMCA Agent or (ii) an online service provider that registered a DMCA Agent prior to December 1, 2016, you should designate an Agent prior to the December 31, 2017 deadline.  Online service providers should also use this registration process as an opportunity to update their terms of service.

For more information, you may consult the Copyright Office DMCA Designated Agent FAQ, or the authors of this alert.