Renew Your Designated Agent Registration or Lose Your Safe Harbor Protection Under the Digital Millennium Copyright Act
Under the Digital Millennium Copyright Act (DMCA), online service providers can avail themselves of a safe harbor from liability for copyright infringement by registering contact information for a designated agent with the Copyright Office. Designated agents act as a point person for copyright holders who identify online copyright infringement and want to serve a takedown notice to get the infringing content removed from the site.
Since the DMCA was enacted in 1998, an online service provider has had to submit a registered agent designation form on paper or as a PDF. The registrations were then made publicly available by the Copyright Office through an online database. Throughout the years, however, it has become clear that the database is swamped by stale and inaccurate information. For example, in a sample of 500 out of the more than 20,000 registrations, the Copyright Office determined that approximately 70 percent of them had outdated information or pertained to currently inactive websites.
In part to address this issue, the Copyright Office has made significant changes to the registration process under the Final Rule for 37 C.F.R. §201.38, which became effective December 1, 2016. These changes impact online service providers who want to designate an agent for the first time and those that have an existing designated agent, alike. The most important new provisions include the following:
- The Copyright Office no longer accepts paper or PDF registration forms for designated agents. Registration is only available through an electronic registration system. Each service provider must create a free DMCA Designated Agent Registration Account to file the relevant forms.
- Online service providers who have already registered a designated agent MUST resubmit a registration form by December 31, 2017. An online service provider that fails to submit a registration by the deadline will lose its safe harbor protection as of January 1, 2018.
- Each designated agent registration expires after three years. If the online service provider does not renew the registration, it will expire. Renewal is required even if the information is unchanged. Online service providers may hire third parties to manage their registrations and renewals.
- Each registration, amendment and renewal has a flat fee of $6. This is a welcomed change from online service providers given that the fee under the paper based system was $105 per registration.
It is also important to note that until December 31, 2017, copyright holders have to search both the old database (based on the paper forms) and the new database to identify the registered designated agent of an online service provider.
If you are facing a copyright issue, or another intellectual property matter, the attorneys at Fredrikson & Byron can help you understand your rights and advocate for your interests.