In 1998, Congress passed the Digital Millennium Copyright Act to address some of the copyright law issues that had begun to arise as the internet was developing as means of widespread commerce and communication.
One question faced by Congress was how to address copyright infringement liability with respect to content created and made available by third-party users through internet service providers,bulletin boards, chat rooms, and web hosting companies. 17 U.S.C. § 512 of the DMCA was envisioned as a kind of bargain balancing the rights of copyright owners, internet services (quaintly-titled “online service providers” or “OSPs”), and the public at large. To reach this balance, the DMCA created a set of “safe harbors” available to OSPs. So long as OSPs comply with various conditions laid out in § 512, they receive immunity for monetary damages with respect to direct copyright infringement or indirect copyright infringement for activities by their users.
As the World Wide Web grew, more and more sites began providing direct hosting (and not simply links) of content such as videos or other content created (or purportedly created) by third parties with minimal pre screening for copyright infringement. Obviously, sites such as YouTube host entire short films, but today millions of websites – everything from eBay and Amazon (user photos and product descriptions) to Facebook to Twitter to mundane news sites –allow users to post content with little to no screening for copyright infringement. Under the DMCA, the onus falls on copyright owners to serve a semi-formal infringement notice comporting with the requirements of § 512(c)(3). That notice triggers a “notice and takedown” procedure that, assuming statutory compliance by the OSP, and further assuming that the third- party user stands on its “right” to use the material at issue, ultimately steers to copyright holder and the user to resolve the dispute in federal court. It should come as no surprise this system –envisioned to expedite the resolution of copyright issues while respecting the rights of copyright holders – has become extremely unwieldy and unworkable for copyright owners.
But setting aside the merits of the DMCA as applied to the internet today, it is important to note that a prerequisite to safe-harbor protection under § 512(c) (storage of infringing material by a third-party user) is that the OSP designate an “agent” with the U.S. Copyright Office for purposes of receiving copyright infringement notices. Put differently, any service that hosts any third-party content of any kind can enjoy qualified immunity for copyright infringement, but one basic requirement is that the service register with the U.S. Copyright Office and keep publicly-available contact information on file. Amazingly, even many hosting providers – companies hosting websites with minimal knowledge of what is on those sites and thus the companies with the most to gain from DMCA compliance – have failed to designate an agent pursuant to the DMCA.
Until now, the U.S. Copyright Office maintained a paper-based registration system. OSPs filled out a form and submitted the form to the Copyright Office, which made pdf versions available online. Obviously, maintaining proper information is unwieldy. It is labor intensive for the
Copyright Office, and the sort of time-consuming chore that can slip through the cracks when an OSP has personnel or other changes would require an update to the agent designation.
But effective December 1, 2016, the Copyright Office is phasing in a new system. OSPs have until December 31, 2017 to register online and provide agent designation information in the new system. The new system is straightforward and easy to use. An OSP simply needs to set up a new account with the Copyright Office, then submit information for its agent(s). Agent designation lists a specific person, as well as contact information, with respect to each domain and alternative name by which the public would be likely to search. The only complication is that each distinct business entity (i.e., each corporate subsidiary or affiliate) needs to file a separate registration.
Registration under this new protocol is fast and cheap. One of our attorneys prepared two separate registrations for a client, with approximately 30 websites and names spread across two corporate entities – in less than half an hour. The government fee is only $6 per registration (or registration correction) with no extra charge for each domain or name associated with the registration.
If you operate a website of any kind that allows the posting of third-party content, we strongly encourage you to take this preliminary step toward DMCA infringement immunity by filing an online agent designation with the Copyright Office.