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November 30th, 2016
Copyright Infringement: Get Ready for New DMCA Agent Designation Rules
Out with the old, in with the new. That's the latest slogan of the Copyright Office which, on December 1, 2016, finally brings its nearly 20-year old system for designating Digital Millennium Copyright Act ("DMCA") agents online. The Copyright Office spells out these changes in a final rule that provides important new filing requirements and places increased emphasis on maintaining current and accurate designations. How will the modernization of the system affect your business? Read on to find out.
Background
The DMCA provides companies that meet certain eligibility requirements with a safe harbor from liability for copyright infringement. For example, a company that hosts user-generated content on its website may not be liable for copyrighted content uploaded by its users. To receive DMCA protection, a company must, among other things, designate an agent with the Copyright Office to receive complaints of claimed copyright infringement, and maintain current and accurate contact information for that agent both with the Copyright Office and on the company's website. Since the DMCA's enactment in 1998, companies could designate agents only by submitting paper forms to the Copyright Office. The Copyright Office then scanned the forms and posted them to a directory on the Copyright Office's website. According to the new rule, this antiquated system enters the 21st Century on December 1, 2016, with the paper-based system going the way of the dodo bird.
A new online filing regime
As of the date of this alert, the new system is not yet active, so we have not had a chance to review it. But the new rule suggests a straightforward process. The rule requires a company to register an account with the Copyright Office. The company then selects which entities (e.g., affiliates) it wants the designation to cover. The Copyright Office considers each entity a separate designation and charges a flat fee of $6 per designation or amendment --- a significant reduction from the prior fee of $105. The company then lists all names and website URLs that the public would likely use to search for the company's designated agent. Finally, the company pays the fee and submits the agent contact information. The contact information may cover: an individual; a specific position or title held by an individual; a specific department within the company or a third-party entity; or a third-party entity generally. The contact information will appear on the Copyright Office's online directory and be accessible to the public.
Key dates and other takeaways
1) Under the old system agent designations did not expire so long as the information was current and accurate. Under the new rule, agent designations now expire three years from the date of submission. Any amendment to an agent designation extends the expiration date to three years from the date of that amendment.
2) All paper-filed agent designations expire on December 31, 2017. Thus, all companies wishing to take advantage of the DMCA safe harbor must submit new designations within the next year.
3) The online directory will now list agent designation history. As a result, the public can view whether a company is "active" or "terminated" and any gaps in time between expiration and reactivation.
These changes significantly increase the importance of keeping agent designation information up to date with the Copyright Office, making compliance all the more critical. Under the DMCA, a company may lose its safe harbor if it fails to maintain current and accurate contact information both with the Copyright Office and on the company's website. Failure to comply may provide opportunities for aggrieved copyright holders to challenge your DMCA safe harbor defense and potentially expose your company to liability. Companies should take extra care to monitor their agent designations for accuracy and set reminders well in advance of renewal deadlines.
If you have any questions about this new rule, or about other copyright law issues, please contact Jeremy S. Goldman at (310) 579 9611 or jgoldman@fkks.com, Daniel M. Goldberg at (310) 579 9616 or dgoldberg@fkks.com, or any other member of the Frankfurt Kurnit Litigation or Advertising Groups.
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