December Deadline Approaches for Maintaining DMCA Safe Harbor Protection

By Wilson Sonsini Goodrich & Rosati

Companies that wish to benefit from the Digital Millennium Copyright Act’s (DMCA’s) safe harbors for online service providers are required to use a new electronic system at the Copyright Office to designate an agent for the receipt of notifications of claimed infringement. All service providers, including those who have previously designated agents under the DMCA, must file this information using the electronic system by December 31, 2017. Failure to designate an agent may result in a service provider losing the benefit of the safe harbor. The fee for filing, amending, or renewing a designation through the online system is $6.

The DMCA’s safe harbors protect online service providers from copyright infringement liability for: (i) content stored at the direction of a user (i.e., user-generated content); (ii) system caching; or (iii) information location tools. The designated agent is a contact point for each service provider, required by the Copyright Act, who receives and processes notices of claimed infringement in compliance with the DMCA.

As noted above, this requirement also applies to those who have previously filed a paper interim designation with the Copyright Office. Accurate and complete paper forms submitted prior to December 1, 2016, will be deemed to satisfy the requirements of the safe harbor only until January 1, 2018. Until then, electronic filing supersedes a previously filed paper designation.

Designated agent information is publicly available on the Copyright Office’s directory and must be updated or renewed at least once every three years, even if the information has not changed. Failure to maintain an updated designation will result in lapse. If a service provider’s designation lapses, they will be allowed to re-activate it through the electronic system by following the same process as a renewal (including the $6 fee). However, the reactivation may not retroactively cover a lapse, and the directory will show a gap in time between expiration and reactivation. During a lapse, the service provider may be deemed to have had no active designated agent listed with the Copyright Office. Consequently, for that time period, the service provider may not be eligible for the DMCA’s safe harbors and may be subject to liability for hosting, linking to, or storing infringing content.

Logistics for Compliance

Before designating an agent, service providers must register online accounts with the Copyright Office. Registration requires a username and password, as well as primary and secondary contacts to receive automated notifications and correspondence from the Copyright Office. This secondary contact information will be non-public (unlike the contact information for the designated agent, which appears in the publicly searchable directory), and service providers can update it within their account.

We anticipate that the designated agent directory will be searchable by service provider legal name, DBA(s), and domain. To help facilitate the usage of third parties to manage designation duties, the system will allow each registered account to submit and manage information for multiple service providers. This will also assist parent companies with consolidating designations for their subsidiaries under a single agent.

The information required for each designated agent remains largely the same as the information required under the prior paper system, with some small changes:

• Full legal name of the service provider
• Service provider’s address (must be a physical street address)
• Any alternate names used by the service provider
• Identity of Agent: full legal name of a specific person (“Jane Smith”); or specific position or title (e.g., “Copyright Manager, WSGR”); or a specific department within an organization (e.g., “Copyright Department, WSGR”); or a third-party entity generally (e.g., “Wilson Sonsini Goodrich & Rosati”)
• Organization of agent, if applicable
• Physical mail address of agent (P.O. boxes are not permitted)
• Telephone number of agent (fax is no longer required)
• Email address of agent

We encourage you to view the video tutorials and FAQs on the Copyright Office website and to contact any member of the Internet law and strategy or technology transactions practices at Wilson Sonsini Goodrich & Rosati with questions about compliance with the new rules. Additional information on the Final Rule¹ may be found here.

Compliments of Wilson Sonsini Goodrich & Rosati, a member of the EACCNY