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No Time Like The Right Time* – To Update Your DMCA Safe Harbor Copyright Agent Registration

All companies that conduct business online should take note of a potential upcoming renewal deadline for the “safe harbor” from copyright infringement liability. Online service providers seeking safe harbor under 17 U.S.C. § 512(c) of the Digital Millennium Copyright Act (DMCA)[1] must designate a copyright agent with the U.S. Copyright Office and renew that designation at least once every three years. Failure to do so will negate the online service provider’s ability to claim the safe harbor from copyright infringement liability under § 512(c). Many companies renewed their designations between December 1, 2016 and December 31, 2017 using the Copyright Office’s new electronic filing system. For those that did, the three-year renewal deadline may be approaching.

As we previously wrote, the U.S. Copyright Office recently implemented a new electronic system for the designation of copyright agents. This electronic system, which became effective December 1, 2016 and replaced the old paper-based system, is required to be used by all online service providers to designate copyright agents and take advantage of the safe harbor from copyright infringement liability under § 512(c).

For purposes of § 512, any entity that provides an online service (such as a website, email service, discussion forum, or chat room) generally would qualify as an online service provider. A copyright agent is typically the contact at the online service provider for receipt of the various notices provided under § 512, such as notices of copyright infringement.

Service providers that designated a copyright agent via the old paper-based system (i.e., prior to December 1, 2016) were required to submit a new designation through the electronic system by December 31, 2017 or their designation would expire and become invalid after December 31, 2017.[2]

Service providers must also renew their designation at least once every three years, either by amending it to correct relevant information or resubmitting it without amendment to confirm the designation’s continued accuracy.

For those that filed using the new electronic system (i.e., between December 1, 2016 and December 31, 2017) and have not renewed their designation since then, the three-year renewal deadline would fall between December 1, 2019 and December 31, 2020, depending on when the designation was originally registered with the Copyright Office. Failure to renew by the applicable deadline will prevent the service provider from claiming the safe harbor from copyright infringement liability established under § 512(c).

To check the effective date of your copyright agent designation, search the public directory of copyright agents, or log into your account here.

Footnotes

*See The Blues Project, “No Time Like the Right Time” (1966 sound recording).

[1] Section 512(c) of the DMCA provides limitations on service provider liability for storage at the direction of a user of material on a system or network controlled or operated by or for the service provider if, among other things, the service provider has designated a copyright agent with the Copyright Office to receive notifications of claimed infringement, and the service provider posts the copyright agent’s relevant contact information in a location accessible to the public (e.g., on the service provider’s website). The other criteria are spelled out in the statute:

“A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”

[2] If you did not renew your old paper-based designation using the new electronic system, your filing expired and you should consider filing immediately.

Copyright 2020 K & L GatesNational Law Review, Volume IX, Number 339

TRENDING LEGAL ANALYSIS


About this Author

Trevor M. Gates, KL Gates, Pharmaceutical Industry Lawyer, Technology Transactions attorney
Associate

Trevor Gates is an associate in the firm’s Seattle office. His two main areas of practice are Technology Transactions and Pharma and BioPharma Litigation. 

Education

  • J.D., University of Oregon School of Law, 2015, (Managing Editor, Oregon Law Review, Overall Best Brief and Second-Place Oral Advocacy, National Tax Moot Court Competition)

  • B.S., Western Oregon University, (magna cum laude, Chemistry)

Admissions...

206-370-8090
Mark H. Wittow, KL Gates, licensing distribution lawyer, mobile applications attorney
Partner

Mr. Wittow is a partner in the Seattle office of K&L Gates. His work focuses on intellectual property and technology transactions and counseling including the acquisition, development, marketing, licensing and distribution of mobile applications and computing devices, software and related services, other types of technology and media content, electronic commerce issues, and complex patent licensing and patent dispositions.

Mr. Wittow’s recent experience includes preparing and negotiating patent and technology licensing and purchase agreements and product development, licensing, distribution and services (particularly cloud services) agreements for technology, online retail, media (film, music, electronic games, books and periodicals), health care, energy, financial services, engineering, transportation and telecommunications businesses; providing counseling on strategic trade secret and copyright issues; preparing and negotiating agreements, supervising due diligence and resolving issues for the acquisition of technology companies or assets and in conjunction with the resolution of intellectual property litigation; assisting international businesses with the legal issues and agreements associated with the creation and operation of cloud services, mobile applications, interactive websites and product and software distribution, including open source software issues; and assisting authors, filmmakers, musicians and artists with licensing and distribution of their works. Mr. Wittow is a frequent presenter and author on cloud computing, copyright and trade secret law developments and on technology and patent licensing and transaction issues. 

206-370-8399