No More One and Done for DMCA Agent Designation Filing

The Digital Millennium Copyright Act (DMCA) shields online service providers from liability for copyright infringement for information uploaded to their networks by users, the “safe harbor,” if the online service providers meet certain requirements. To benefit from the DMCA safe harbor, the online service provider must designate an agent to receive copyright infringement notices. The online service provider must also file the designated agent contact information with the Register of Copyrights. The DMCA requires the Register of Copyrights to maintain a current directory of the designated agents.

Until now, online service providers could comply with the DMCA designated agent filing requirement by filing with the Register of Copyright just once. The U.S. Copyright Office instituted a new rule entitled “Designation of Agent To Receive Notification of Claimed Infringement,” effective December 1, 2016. Beginning December 1, 2016, online service providers must use the Copyright Office’s new online system to provide the required designated agent information. The Copyright Office will no longer accept paper forms. To ensure the accuracy of the designated agent directory, the Copyright Office now states “all service providers seeking to comply with 17 U.S.C. 512(c)(2), including those that have previously designated an agent using the paper process under the Office’s interim regulations, are required to submit new designations through the electronic system by December 31, 2017.” In addition, the online service provider’s agent designation will expire and become invalid after three years unless the online service provider renews the agent designation. Some copyright thought leaders argue that the Copyright Office’s rule changes create a trap for unwary website owners who currently benefit from the DMCA safe harbor.  Eric Goldman explains his objections to the new rule in Copyright Office Gratuitously Kills the DMCA Safe Harbor for Thousands of Websites.

The new online agent designation and three year renewal requirements result from the Copyright Office’s shift from a paper to an online filing system and from the Copyright Office’s efforts to keep its designated agent directory current. According to the Copyright Office, some online service providers fail to keep their designated agent information filed with the Copyright Office current. The DMCA also requires online service providers to make the designated agent contact information available on the online service provider’s own website. One of the goals of the Copyright Office’s new agent designation rule is to make sure the agent designation information available through the Copyright Office matches the agent designation information on the online service provider’s website. Why is the Copyright Office suddenly so concerned about this situation after ignoring it for eighteen years?

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