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Changes to the DMCA May Make Many Websites Liable for Copyright Infringement

Changes to the regulations related to the Digital Millennium Copyright Act will soon require that online service providers electronically register (and re-register) their DMCA agent. Previously, this was a paper filing to the Copyright Office.

https://www.copyright.gov/dmca-directory/ 

What is the DMCA? How does it protect online service providers?

The DMCA is a large piece of legislation that amended and updated many provisions of U.S. Copyright law. The portion of the DMCA most often referenced is the “Safe Harbor” or the “Notice and Takedown Provision.”

Basically, this portion of the DMCA provides that a website or other online service that allows users to post or host content is not liable if those users infringe on a third party’s copyright. For example, if a user posts a full length rip of the movie Jingle All the Way to YouTube, YouTube is not liable for that act of copyright infringement.

To get this safe harbor, the host or service provider has to do a number of things, including (1) provide a notice and takedown system, (2) respond appropriately to notices and counter-notices, (3) bar repeat infringers from their service and (4) designate an “agent” to receive notices.

To continue with the Jingle All the Way example: if Twentieth Century Fox takes issue with the upload, they can send a takedown notice to YouTube’s designated agent. YouTube then has to take down the video unless or until they receive a proper counter-notice. A counter-notice comes from the user that uploaded the Schwarzenegger Christmas classic and, in short, tells Fox who the user is in real life and how to sue them directly. This takes YouTube out of the battle. If YouTube didn’t properly designate an agent, or didn’t follow the process correctly, then Fox could sue YouTube (Google) as well.

It’s a little more complicated, but this is the gist.

What is changing? What do you need to do?

The most pressing change is in the way that service providers designate agents with the Copyright Office. Service providers used to do this by mail, and will soon have to do it online. But, anyone who previously registered by mail will have to re-register electronically before December 31, 2017. And, they also now need to renew that registration every three years. You can access the online registration system here. 

If you operate a website, online service or app that allows users to post any content (text, pictures, video, etc.), you should complete the electronic filing. If you don’t have one in place already, you should have a DMCA policy posted prominently on your service.

The new rule will take effect on December 1, 2016.

Is there any good news?

Yes!

Filing online will be easier, generally speaking. It will also be much cheaper. The fee was $105 plus $35 for each group of 10 additional names (so one company with three URLs would pay $140, for example). The new fee structure will be only $6 per designation (the same company would pay $24, $6 for each of its names and its three URLs).

The designated agent can now be a generic title or department. It used to have to be a named person. This meant the service provider would have to update anytime a designated agent left the company.

The designated agent’s address can now be a P.O. Box. This used to have to be a physical address. Many startup founders and bloggers did not like putting out their home addresses, and they will no longer have to.

The designated agent no longer has to provide a fax number. Who still uses faxes, anyway?

If you have questions or want more information, please contact Trevor Schmidt. 

Author: Brandon J. Huffman