Under the Digital Millennium Copyright Act (“DMCA”) any website that allows site users to post content, including anything such as comments, reviews or videos is considered a “Service Provider.” A Service Provider is potentially exposed to copyright infringement liability based on content posted by site users. However, the DMCA also offers a Safe Harbor that, under certain conditions, can insulate Service Providers from third-party copyright infringement claims based on such user-generated content.

To qualify for protection under this Safe Harbor, the Service Provider must meet certain conditions:

  1. the Service Provider must not know about or participate in the infringing conduct and cannot benefit from that infringement;
  2. the Service Provider must promptly remove any infringing content once it discovers same, either on its own discovery or by notice from a third-party; and,
  3. to qualify for the Safe Harbor, a Service Provider must designate an agent to receive notice of copyright infringement claims and must register the identity of that agent with the U.S. Copyright Office.

New Law

Effective December 1, 2016, the Copyright Office introduced a new online registration portal for Service Providers to designate their DMCA agent. All new designations must be done online. However, of utmost importance to existing Service Providers, any Service Providers who previously designated agents via the old paper forms must re-register and re-designate their agent by this online system. In order to maintain protection under the DMCA Safe Harbor these re-designations must be accomplished by December 31, 2017.

Action Steps

This change in the DMCA signals an opportunity for Service Providers to re-examine their website terms of use and notification provisions as well as to ensure proper identification of DMCA claims agents. If your organization would like to discuss these changes and website policy reviews, please contact Mark Nieds at 239-344-1153 or by email at mark.nieds@henlaw.com.