Time Running Out For Online Service Providers To Preserve Their DMCA "Safe Harbor" Protection

By William Baker.

Internet websites, mobile apps, social media, and similar services are reminded to file an electronic designation of agent with the U.S. Copyright Office by December 1, 2017.  This is necessary to qualify for the "safe harbor" under the Digital Millennium Copyright Act ("DMCA") that protects online service providers from monetary liability based on copyright infringing activities by users or third parties.  Entities that have not yet done so (registrations were opened last winter) have until December 1, 2017, to do so.

Section 512(c) of the DMCA provides a "safe harbor" that protects hosts of user-generated content from liability for copyright infringements.  The "safe harbor" involves a "notice and takedown" procedure using a process normally set forth in a website's terms of use.  An essential element of that process is the designation of an agent to whom a copyright owner may send notice of an infringement claim, along with legal address and contact information.  Websites typically present that information in their terms of service.

Importantly, the DMCA also requires online service providers to register the same information about its agent with the Copyright Office, which maintains a directory of all registered agents that is accessible to the public.

As of last December, online service providers must register the designated agent through an online filing system maintained by the Copyright Office.  The Copyright Office has created an electronic system for that purpose, and has published instructions at http://www.copyright.gov/rulemaking/onlinesp/NPR/.

To preserve the DMCA's protection against monetary damages, the electronic designation must be made by December 1, 2017 (and renewed every three years).  Failure to make the filing by that date will make the "safe harbor" protection unavailable, exposing sites to potentially extensive damages for infringement claims.  Previously paper-filed designations will be terminated on December 31, 2017, so the electronic filing is essential.

Either the online services provider or its representative may submit the designation.  However, certain information must be retained in order to log into the system again after registration is complete, so either the provider or its representative must maintain an accurate record of the filing.

Note: This Bulletin is not intended as legal advice. Readers should seek professional legal counseling before acting on the information it contains.