Contributed by Mark G. McCreary & Kevin P. Dermody
One of the major benefits of the Digital Millennium Copyright Act (DMCA) is that website owners can gain the protection of the DMCA’s safe harbor provisions by registering a DMCA agent with the U.S. Copyright Office. The safe harbor allows a copyright holder to notify a website operator that its protected material was uploaded to the website and is being infringed. That website owner can avoid liability by removing the copyright-infringing material from its website after being notified. Currently, once a website owner registers a DMCA agent there are no additional requirements to ensure the protection is available. However, based on a recent announcement from the Copyright Office, the process for securing and maintaining the DMCA’s protection will be changing.
On October 31, the Copyright Office announced a change to the registered agent database that will require additional action on the part of website owners in order to stay protected under the DMCA’s safe harbor provisions. The change, which is scheduled to take effect on December 1, 2016, replaces the old paper filing system with a new electronic filing system. The system is designed to make it easier for individuals to search within the registered agent database and contact the registered agent for a website.
This change puts every registered agent on the old system at risk of being wiped off the record unless he or she re-registers with the Copyright Office using the new electronic system no later than December 31, 2017. Additionally, website owners will now be required to update their registered agent information every three years in order maintain their registration with the Copyright Office and their protection under the DMCA.
These new requirements are partly in response to a significant amount of outdated information within the database. According to the Copyright Office, roughly 22 percent of registered agents on the database are defunct, and of those that are not defunct, 65 percent contain inaccurate contact information for the registered agent. The Copyright Office believes that implementing the new electronic system will alleviate these issues, but many commentators do not believe that the benefit of the electronic system is worth the extra effort and risks that will be placed on website owners.
The main risk created by this change is that website owners who miss the December 31, 2017, registration deadline will lose their DMCA protection and will be exposed to potential lawsuits if infringing material is posted to their website. The Copyright Office is confident that the 13-month transition period will provide enough time for website owners to register on the new system. However, website owners that do not stay well informed on updates to the requirements, or forget to update their registered agent contact information every three years, will suffer. Many website owners may lose the protection of the DMCA’s safe harbor provisions without even knowing that their current registration has been erased.
If you have any questions or would like Fox Rothschild’s help in registering your website under the new electronic filing system, please contact Mark G. McCreary at 215.299.2010 or firstname.lastname@example.org, Kevin P. Dermody at 215.444.7159 or email@example.com, or any member of the firm’s Franchise Law Practice Group.