We are only three months away from the December 31, 2017 deadline for websites and other online service providers to redesignate their DMCA agents under the U.S. Copyright Office’s new online registration system. This is an important deadline for any business that allows users to store or post photos, videos, articles, comments or other content on its website. If that user-generated content infringes someone’s copyright, then the website operator may be exposed to significant liability as an indirect infringer, unless the DMCA applies. The DMCA (or Digital Millennium Copyright Act) establishes a set of safe harbors that immunizes operators from claims for damages, provided that certain requirements are met. One of those prerequisites is the designation of a DMCA agent.
If you are one of the many websites or other online service providers that designated its agent before December 1, 2016, you must redesignate your agent online before year-end. Otherwise, the designation will expire. This is your friendly Q4 reminder from Jackson Walker to redesignate your agent online with the Copyright Office before year’s end.
Why the Deadline?
For nearly two decades, the DMCA agent designation requirement was satisfied through an interim paper filing with the Copyright Office. But late last year, the Copyright Office launched its long-awaited online registration system for handling those designations.
“Out with the old and in with the new” is the motto of the new system. Starting January 1, 2018, the Copyright Office will render invalid any agent designations made prior to December 1, 2016. This means all agents designated under the old paper filing system must be redesignated by December 31, 2017. Also, these designations (and redesignations) must be handled online – no longer will the Copyright Office accept paper designations like it did before.
Other New System Mechanics
Besides moving to an online platform, the new system implements several noteworthy changes, including quicker response times, a new fee structure, a periodic renewal requirement, and stricter contact information requirements.
Going forward, each agent designation will be added to the Copyright Office’s electronic database on the day of filing. This is a notable departure from the old paper process, which took anywhere from six to eight weeks, and should eliminate a lingering legal uncertainty. Disputes over the effective date of safe-harbor protection were not uncommon under the old regime: was it the date when the designation was mailed; or the date when the designation appeared in the Copyright Office’s database? The new, abbreviated response time effectively moots this debate because the date of filing and date of appearance in the database should now be the same.
The new fee structure is also welcome news for businesses, especially those with multiple websites or domain names. The new system requires agent designation renewals every three years, but the filing fee is now a flat $6.00—a significant reduction from the earlier charge of $105.00 per service provider (plus $35.00 per group of 10 alternate names).
One readily apparent drawback to the new system is that businesses can no longer list a P.O. box as their agent’s address without special allowance from the Copyright Office. Absent such leave, an actual business address is required when filling out the online registration form.
The Copyright Office’s new system should prove easier for businesses to work with. It is cheaper than the old system and eliminates troublesome and costly disputes over the effective date of safe harbor protection. These conveniences come with a price, however, as the new system also requires businesses to be more proactive in maintaining their agent designation. Any company with a website should be aware of these new obligations and respond accordingly.
If you cannot recall the last time you designated a DMCA agent, odds are you need to do so within the next three months. If your website utilizes user-generated content, but has never designated a DMCA agent, the time to do so is now.