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Deadline For New DMCA Designated Agent Requirements Is December 31, 2017

Deadline For New DMCA Designated Agent Requirements Is December 31, 2017

As required by the Digital Millennium Copyright Act (DMCA), all online service providers must designate an agent to receive notices of claimed infringement on their behalf. According to the DMCA the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received. This would also include entities that operate internet services such as websites, and would likely affect company LANs and intranets.

Effective December 31, 2017, all service providers must start using the new electronic system the United States Copyright Office (USCO) rolled out in 2016 for designating and listing agents with the USCO. On this date, the current public directory of designated agents will be phased out.

In order to stay up to date and continue to benefit from certain safe harbor protections under the DMCA, all online service providers must electronically refile their agent designations by December 31, 2017.

(Note, the definition of service provider ranges widely—from a technology company to blog site to a mobile app and many other types of entities. Contact your attorney to determine your requirements.)

The Update

To modernize the process of designating an agent and improve the accuracy of the directory, as well as making it easier for the public to search the listings, a new electronic system was introduced last year to replace the paper filings.

Paper designations that are currently on file will continue to be valid until the earlier of a service provider filing electronically or until December 31, 2017. If the service provider does not refile by December 31, 2017, any existing agent designation will be invalid and the provider will lose the safe harbor protections of the DMCA.

About The Digital Millennium Copyright Act

The DMCA was enacted in October 1988 by the United States Congress. It made sweeping reforms to the U.S. Copyright Act in part to bring the country’s copyright legislation into compliance with the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances Phonograms Treaty. When it was enacted, this new law also strengthened intellectual property rights following the rise of new channels of communication, namely the Internet.

The DMCA Internet affords service providers a safe harbor from copyright infringement liability stemming from data stored or made accessible by a user on the service provider’s network or system if the provider takes certain steps, including filing a designation of an agent to receive notifications of alleged infringement with the United States Copyright Office. The agent information must also be posted on the provider’s website.

Providers’ agents are listed in a “current directory” maintained by the Copyright Office, pursuant to 17 U.S.C. 512(c)(2).

For the past 19 years, online service providers sent their designated agents to the Office via paper filings, which were then scanned and posted on the United States Copyright Office’s website. This was an expensive and inefficient process for service providers as well as Office staff. It also led to factual errors. Because of the manual process involved, the information available to the public was often obsolete, sometimes listing information for service providers that were no longer in business. Some listings didn’t even contain contact information. In one examination of 500 listings on the site, 70% were either inaccurate or for nonexistent service providers.

Other Key Changes

In addition to the new online process for listing designated agents, the regulations also include several other changes in how the filings are managed.

  • Service Provider’s Identity and Alternate Names: Service providers must now list all the possible alternate names the public might use to search for the provider’s designated agent. This includes all names, software applications and website URLs under which the service provider is doing business. The goal of this modification is to make it easier for the public to locate the service provider’s designated agent. Separate legal identities are not considered alternate names, though each legal identity must have its own registered agent. Multiple designations may be managed by a single user through one registration account.
     
  • Agent’s Identity: The rules allow a service provider to designate as its agent an individual (e.g., “Jane Smith”), a specific position or title held by the individual (e.g., “Copyright Director”), a department within the service provider’s organization or third-party entity (e.g., “Office of Copyright Compliance”), or a general third-party entity (e.g., “XYZ Takedown Service”).
     
  • Filing Fee Reduction: The fee has been reduced to $6, with no fee for additional or alternate names. Previously it cost service providers $105 to designate an agent, plus an additional $35 for each group of up to 10 alternate names.
     
  • Signature and Attestation: The Office has also done away with the signature requirement of the interim rule.
     
  • Renewal: Formerly, agent registrations were perpetual, but now they must be renewed every three years or risk losing the shelter of the safe harbor provision.

See DMCA FAQs at https://www.copyright.gov/dmca-directory/faq.html

If you have questions on how the new DMCA registration system impacts your business, we recommend you contact your attorney.

 

 

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