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Intellectual Property Law

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Tuesday, November 7, 2017

Revised system for designating agents under the Digital Millennium Copyright Act (“DMCA”)

The United States Copyright Office revised its system for designating agents for receipt of claims of copyright infringement under the Digital Millennium Copyright Act (“DMCA”) with a new electronic system. Under the revised system, website operators and other online service providers must designate agents by December 31, 2017, or risk losing protection under the DMCA.

 

A company which displays infringing content on its website may be liable for copyright infringement even if the content was posted by a user.  However, the DMCA provides a safe harbor from copyright infringement liability for online service providers, such as website owners.  In particular, the DMCA provides protection from monetary damages and, in many cases, injunctive and other equitable relief, due to copyright infringement arising from material stored at the direction of a user.  An online service provider can enjoy the safe harbor of the DMCA so long as it (i) does not have actual knowledge that the material is infringing, or (ii) is not aware of facts or circumstances from which infringing activity is apparent, or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the material.

 

Under the DMCA, copyright owners send notices to online service providers, through their designated DMCA agents, identifying allegedly infringing content. If the service providers expeditiously remove or disable access to the content, the DMCA protects the service provider from liability.  Online service providers must satisfy several requirements to qualify for protection under the DMCA. Primarily, service providers must designate an agent with the Copyright Office. This agent receives claims of copyright infringement. In order to maintain an active agent designation, a service provider must submit a new designation using the online DMCA system located at https://dmca.copyright.gov/osp/login.html by December 31, 2017. Agent registration must be renewed with the Copyright Office using the electronic system every three years and currently incurs a government fee of $6. Any designation not made by the electronic system will expire and become invalid after December 31, 2017.

 

A single account can be used to register and manage designations for multiple service providers, but each separate legal entity must file separate designations. For example, a parent company and subsidiaries may use the same account, but each must register their designated agents separately.

 

Online service providers must comply with several other requirements to enjoy the protection of the DMCA, including: (1) Designation of agent on website; (2) Repeat infringer policy on website; (3) Repeat infringer policy reasonably implemented; and (4) No interference with standard technical measures – “Standard technical measures” are measures used by copyright owners to identify or protect copyrighted works that have been developed pursuant to a broad consensus of copyright owners and service providers.

7:55 am cst 


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