Agent Registration under the Digital Millennium Copyright Act Is Going Digital

November 2017

In this era of social networking, more websites are allowing users to post or upload content, including text, photos, and videos. These features are great for community engagement, but when users upload copyrighted materials, website operators may be at risk of copyright infringement.

The federal Copyright Act of 1976 grants to authors various exclusive rights to their works, including the exclusive right to publicly display and distribute those works. When users upload copyrighted materials to websites without the permission of the copyright owner, or when the website displays and distributes copies of such works, the website provider or the host might unknowingly be violating the author’s exclusive rights.

To address this, Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. Under the DMCA, a “safe harbor” provision provides Internet service providers (“ISPs”), which includes web hosting services and web sites, with immunity to copyright infringement liability if certain conditions are met. For example, the ISP must not directly benefit from infringing material being present and must act expeditiously to remove it once it realizes that the material is infringing, such as if the ISP receives notice of this from a copyright owner. To qualify for this “safe harbor” protection, the ISP must register a “Designated Agent” with the U. S. Copyright Office ("Copyright Office") to receive such notices.

For the first 18 years following enactment of the DMCA, ISPs registered their Designated Agents using a paper form provided by the Copyright Office. However, in late 2016, the Copyright Office announced that it would soon accept electronic designations over the web and that any ISP that previously provided a designation using the paper form would lose that registration and the safe harbor protections of the DMCA at the start of 2018 unless it submitted the designation via the new online registration system by December 31, 2017.

The DMCA defines a “service provider” to include any “provider of online services or network access.” This broad definition generally includes any operator of a website or other service accessible over a network. Thus, any company operating a website that permits users to provide content, such as by submitting reviews, comments, or uploading photos or video, may benefit from the protections of the DMCA.

If you or your business might benefit from the safe harbor provisions of the DMCA, or you need to use the DMCA to have your copyrighted material removed from a third-party service, please contact one of our copyright attorneys.