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New Electronic System for DMCA Safe Harbor Agents

12.9.2016

If your company hosts or operates an interactive website that allows users to post or upload materials, you need to have a Digital Millennium Copyright Act (DMCA) policy. A DMCA policy gives copyright owners the opportunity to complain if material posted on your website by a user infringes their copyright. So long as you comply with the terms of a properly designed policy, your company will be shielded from liability for hosting a website that displays infringing materials.

For those companies that already have published DMCA policies, a recent change in the law will require you to take steps in the near future to preserve your safe harbor protection. One of the requirements to be eligible for the safe harbor is that companies submit a form to the US Copyright Office identifying the name and contact information of the person designated to receive copyright takedown notices. Effective December 1, 2016, the original designation form has been replaced with a new online system for registration of designated agents. Here are some crucial facts about the transition to this new system:

  • If you previously designated an agent under the old system, you are required to re-file your “Designation of Agent to Receive Notification of Claimed Infringement” through the new online system. This “re-designation” must be completed by December 31, 2017. If you do not re-designate, your safe harbor will be in jeopardy.
  • Once you have re-designated through the new online registry, the designation must be updated every 3 years or it will expire. If you amend your designation at any time, the submission of the revised designation will create a new three year registration period.
  • Under the new rules, the designated agent can be an individual (e.g., Jane Doe), a specific company position or title (e.g., Copyright Manager), a specific department within the organization (e.g., Copyright Compliance Department), or a third party entity (e.g., ACME takedown service).
  • The cost of designation has been reduced to $6.00, a substantial savings from the prior $105.00 fee.

To summarize – if your company allows third parties to post materials on a website you control, you need a DMCA policy to protect you from liability in the event a user posts materials that infringe someone’s copyright. If you already have a DMCA policy in place, please act promptly to update the designation of your agent to receive takedown notices so your safe harbor will remain protected.

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