Copyright Office Requires Online Service Providers to Complete New Electronic DMCA Designation by December 31, 2017

January 2017

The United States Copyright Office issued a Final Rule, published in the Federal Register on November 1, 2016, requiring all online service providers seeking to avail themselves of the protections afforded by the Digital Millennium Copyright Act “DMCA” to complete a new electronic registration by December 31, 2017.

The DMCA offers online service providers, (including individuals and companies that maintain websites), safe harbor from liability for copyright claims arising from infringing material posted by their users, or links to infringing material, provided the service providers meet specific eligibility requirements, and register a designated agent to receive notifications of claimed infringement with the Copyright Office.   

Since 2008, the Copyright Office has accepted a paper form (or scan of the paper form) for this purpose. Although the DMCA requires online service providers to update their designated agents, the Office believes the information on the paper forms has become inaccurate and out of date. Accordingly, after a multi-year process beginning with a 2011 Notice of Proposed Rulemaking, solicitation and review of comments, and a 2016 Noticed of Proposed Rulemaking regarding the fee, the Copyright Office issued a Final Rule that took effect on December 1, 2016.

What Does This Mean for You?
As of December 1, 2016, online service providers are required to use a new online registration system to submit agent designation information to the Copyright Office. More information, including a link to the new system, can be accessed by following this link.

Importantly, service providers who currently have an agent designated must file new designations using the new electronic system by December 31, 2017 or else risk forfeiture of the safe harbor protection. Previously filed designations will continue to satisfy service providers’ statutory obligations only until December 31, 2017, at which time the old paper system will become obsolete.

Also under the new Rule, online service providers must renew their designations every three years, by either amending it or resubmitting it without amendment to confirm it is up to date. Failure to amend before the expiration of the term risks expiration of the designation. However, the new system will provide automated reminders to service providers to review and renew their designations.  

Currently, the fee per registration is $105, with an additional $35 for any additional alternate names. The institution of the new electronic system will significantly reduce the fee to $6 per registration with no extra fee for additional alternate names.

The Bottom Line
If you are an online service provider, i.e. you maintain a website that links to content from other sites or allows its users to post content, you must designate an agent under the new electronic system by December 31, 2017.

Also, you should be mindful to update information in a timely manner if any information has changed, and calendar renewal of agent designations at the three-year expiration date to avoid inadvertent loss of safe harbor protection.

For more information on the issues in this alert, or intellectual property matters generally, please contact:
Barry Werbin at + 212 592 1418 or [email protected]

© 2017 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.