New DMCA Registration Regime Starts Today. Don’t Delay!
Today is the first day to take advantage of the U.S. Copyright Office’s new electronic registration system for DMCA agents31“DMCA agent” is short-hand for designated agent to receive notification of claimed infringement. Gone are the days of printing out a form, physically signing it, and physically mailing it in, usually accompanied by a fairly large check (over $100). Now, you just create an account (which means picking a user name and password, alas), fill out a fairly simple form, pay a very small fee—currently, $6.00—by credit card, and you’re done. The whole thing can be accessed here.
I just did it for my firm, and it wasn’t that hard.32The only weird hiccup is that we received three confirmation emails. There are only a couple of tricky things. First, you (i.e., your organization or who you’re representing) is the “service provider,” not, for example, your internet service provider. In this context, “service provider” means anyone providing any type of service over the internet, not just traditional last-mile ISPs. Second, you’ll want to include, as “additional names,” any name by which you or your organization might be known. At present, there’s no additional fee for additional names33Unlike before, when the $30 charge could really add up., so there’s no reason to skimp.
Even if You’ve Registered, You Need to Re-register.
Now for the important bit. Today might be the first day this new DMCA registration system, but there’s also a deadline: December 31, 2017 (i.e., the end of next year). This is the date by which you must re-register your DMCA agent, or else your registration will lapse.34If you haven’t registered at all, then you’re already late. This is so even though you’ve already registered your DMCA agent and the registration is still current. You see, the U.S. Copyright Office is doing a clean sweep. The old paper system is going completely away January 1, 2018. If you aren’t on the new system, you won’t be on any system. The Copyright Office basically had two choices: type the information from the paper registrations into the new electronic system by hand, or force everyone to re-register. Guess which one it chose?
It is crucially important that you re-register your DMCA agent in the new electronic system because, if your DMCA agent is not registered, then you receive no DMCA safe-harbor protection for the two most common flavors of safe-harbor: storing infringing material at the request of another (e.g., a user uploading content to a website you control, or even just a comments system); and linking to infringing material35While there is some doubt that this safe-harbor is actually necessary, because not everyone is convinced you can infringe by merely linking to infringing content on someone else’s system, why take the chance?. This is one of the few times in law that the technicalities really matter. No registration of the DMCA agent, no DMCA safe harbor—even if you do everything else correctly.
Sure, you have until the end of next year to do it, but why wait and risk forgetting all about it, because you’re super busy? Just take care of it while it’s fresh in your mind. Take 15 minutes, spend $6.00, and do it.
(Re-)register Even if You Aren’t YouTube.
Some folks are at greater risk than others, of course. YouTube is at greater risk than a comments-enabled blog that’s updated every few months, just because YouTube has much more uploaded content, and the uploaded content is much more likely to be infringing. But if the risks are smaller for smaller operators, they remain too large for most. By hosting third-party content36I.e., storing content at the direction of a user of your system., a website or other internet-based business exposes itself to liability for contributory or vicarious copyright infringement, if that content is infringing—often without any efficient way of identifying and filtering out the infringing content. Contributory infringement has a “knowledge” requirement—you must be at least aware of the infringing activity—but even an automated DMCA takedown notification might be enough. Vicarious infringement is especially nasty if you actually make money from hosting the content (even if indirectly), because it has no “knowledge” requirement. All it requires is that you benefit financially from the storage (and courts have taken a broad view of this), and you could have stopped or otherwise controlled the activity that turned out to be infringing (i.e., you could have removed the content, or just prevented its uploading).
Unless you are especially foolish or unlucky, the DMCA safe harbor should defend against these risks. It has several requirements37Again, we’re just talking about the two most common flavors of DMCA safe-harbor., which I discuss briefly here and here, and which aren’t normally that difficult to comply with.38The DMCA safe harbors are a hobby of mine, so the IP Breakdown has several blog posts about it that discuss the contours and gray areas and new developments—of which there have been many since I first started blogging about it. But it also requires that you name a DMCA agent and tell the world of several ways to contact the DMCA agent.39But not including fax numbers any longer! Hurrah! Under the old paper forms, you had to provide a fax number, but I don’t believe I had to provide one under the new electronic system. And you must provide all of this information in a registration you give to the U.S. Copyright Office—i.e., the new electronic system.40For some reason, the Copyright Office still won’t accept P.O. Boxes. Which is indefensible, to my thinking. If you don’t do this, you don’t have the safe harbor, even if you comply with all of the other requirements. Businesses—fairly sophisticated businesses— have discovered too late that they lack the DMCA safe harbor on which they were relying because they failed to register their DMCA agent or keep the registration up to date.
And if you’ve never registered your DMCA agent—or even designated one—you’re already behind the curve. There couldn’t be a better time than right now to do so!
Thanks for reading!