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Action Required to Keep Your DMCA Safe Harbor Protection

The U.S. Copyright Office recently implemented new rules (the “Rules”) governing the designation and maintenance of Digital Millennium Copyright Act (“DMCA”) agent information under a new electronic system. The Rules went into effect on December 1, 2016, so electronic designations should be filed as soon as possible. Service providers who fail to submit electronic designations will be ineligible for the safe harbor protections from copyright-infringement liability provided by the DMCA.

In order for the safe harbor provisions to be effective, all designations (including those previously submitted through paper filings) of agents to receive notifications of claimed infringement must be filed electronically. Service providers who previously filed paper designations must submit new designation electronically no later than December 31, 2017. Previously filed paper designations, therefore, will continue to qualify service providers for safe harbor protections until the earlier of when the new electronic designation is filed or December 31, 2017.

Additional important information conveyed by the Rules includes:

  • Contact Information and Alternate Names For Service Providers. Service providers are required to provide all contact information (similar to the paper system), and must also list all alternate names that the public would be likely to use to search for the service provider’s designated agent. These include d/b/a names, websites, software application names and other common names.
  • Contact Information for the Designated Agent. The DMCA designated agent’s contact information must also be prominently disclosed on the website. This includes the name of the designated agent and, if applicable, the name of the designated agent’s organization. The designated agent may be an individual, a specific title or position held by an individual, a specific department with the service provider’s organization or within a third-party entity, or a third-party generally. The contact information must include a physical address, telephone number and email address.
  • Renewal Period. Service providers must renew and resubmit agent designations at least every three years through the electronic system. Failure to do so will result in expiration and ineligibility for the safe harbor protections.
  • Fees. The Copyright Office has reduced fees, which were a minimum of $105 per designation under the old paper system, to $6 per designation with the new electronic system.

The DMCA is an important tool for online service providers to take advantage of safe harbor protections and avoid liability for infringement. To take advantage of these protections, service providers must strictly comply with the Rules’ requirements. If you have any questions regarding how to comply, please contact a Foster Swift attorney for more information and assistance.

Categories: Copyright, Intellectual Property, News

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