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Don’t Lose Your DMCA Safe Harbor for Copyright Infringement Claims

The December 31, 2017 deadline for online service providers to reregister designated agents under the Digital Millennium Copyright Act (DMCA) in the US Copyright Office’s new online directory is fast approaching.

Section 512 of the Copyright Act (often referred to as the Digital Millennium Copyright Act or DMCA) provides various types of online service providers (OSPs) with an important safe harbor from monetary liability for copyright infringement stemming from the actions of third parties in connection with, among other things:

  • allowing users to store or post content on their networks; and

  • operating search engines or other online directories linking to content.

For this purpose, OSP has a very broad meaning, so compliance with the DMCA safe harbor can be significant not only for dedicated content-sharing websites, but even for websites or online services that allow limited interaction with users, such as uploading or posting comments, links, or other content.

To qualify for the safe harbor in these situations, an OSP must have a “designated agent” to receive notices of alleged infringement and must provide information about its designated agent and the OSP in the US Copyright Office’s public directory and on its own website in a location accessible to the public. This information must be the same. The information must also be kept up to date in both places, meaning that the OSP must amend the designated agent information in the Copyright Office’s directory if it makes changes to this information on its website.

If you operate an OSP that engages in the activities described above, it is likely that you have previously registered a designated agent in the Copyright Office’s old directory and complied with the other eligibility requirements of the safe harbor under Section 512. To preserve these benefits, it is imperative that you reregister in the Copyright Office’s new fully digital DMCA Designated Agent Directory (“New Directory”) by December 31, 2017—otherwise these important benefits will be lost until the date on which you reregister.

We summarized the Copyright Office’s new regulations (37 C.F.R. § 201.38) governing registration in the New Directory in a post last year. The regulations are essentially the same now, although the Copyright Office made minor changes to clarify and reduce the amount of information required to register a designated agent (making some previously required information optional, such as providing a secondary point of contact).

How to Register

To register a designated agent under the new system, you must do the following:

  • Register for and use the online registration system.

  • Renew the registration every three years or upon any pertinent change to the designated agent’s information, whichever is sooner.

  • Pay a (much lower) fee: $6.00 instead of $105.00.

  • Provide a primary contact for administration of the online account (receives renewal notices, payment confirmations, etc.). The point-of-contact information is not public and may be a law firm or central manager for multiple OSPs.

Guidance related to the new system and regulatory requirements is available on the Copyright Office’s DMCA Designated Agent Directory homepage.

Registration Assistance

The new system anticipates that third parties may assist OSPs in reregistering their designated agents. Morgan Lewis can provide this assistance. To do so, we would need—preferably before December 28, 2017—the following information:

  • The OSP’s

    • legal name (including alternate names the public is likely to use in searching for the OSP’s designated agent),

    • physical address (not a PO Box),

    • phone number, and

    • email address.

  • The Designated Agent’s

    • name

    • address (can be a PO Box),

    • phone number, and

    • email address.

Copyright © 2022 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume VII, Number 346
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About this Author

Ron Dreben, intellectual property lawyer, Morgan Lewis
Partner

Ron N. Dreben advises clients on intellectual property and technology issues in business transactions. He provides advice in connection with mergers, acquisitions, and licensing arrangements, as well as trademark, copyright, trade secret, and related IP law. A Certified Information Privacy Professional (CIPP), Ron helps companies address privacy issues and respond to security breaches and advises US companies on the relevance of the EU Data Directive. Ron has experience negotiating with most of the leading technology product and service vendors.

202.739.5213
Rachel Fertig, Morgan Lewis Law Firm, Washington DC, Intellectual Property Attorney
Associate

Bringing government and private-industry perspective to the firm’s intellectual property practice, Rachel E. Fertig assists media, technology, and retail companies with copyright protection and enforcement. Previously at the US Copyright Office, Rachel helped develop the government’s amicus brief in Star Athletica, L.L.C. v. Varsity Brands, Inc.; revise the Compendium of US Copyright Office Practices; and advise whether to grant or deny final administrative appeals of rejected registrations. She is admitted in New York only, and her practice is supervised by DC Bar...

202-739-5396
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