Maintaining a Safe Harbor Under the DMCA

The Digital Millennium Copyright Act addresses, among other things, liability for on-line infringement of copyrights.  Section 512 provides for limitations on liability (a “safe harbor”) for those who provide online services, such as a website, email services, discussion forums and chat rooms. For each class of material, prerequisites must be met for the safe harbor provisions to apply.  For example, for transitory communications, the limitation on liability applies when:

  1. the transition was initiated by or at the direction of a third party;
  2. the transmission and storage is carried out through an automated process without selection of the material by the service provider;
  3. the service provider does not select the recipients of the material;
  4. no copy of the material made by the service provider is accessible to anyone other than anticipated recipients; and
  5. the material is transmitted through the system without modification to its content.

For information residing on a system or network at the direction of users, the service provider is not liable if the provider:

  1. does not nave actual knowledge of or is not aware of facts from which it is apparent that the material is infringing; or upon obtaining such knowledge, acts expeditiously to remove or disable access to the material;
  2. does not receive a financial benefit directly attributable to the infringing activity where the service provide has the right and ability to control the activity; and
  3. upon notification of claimed infringement, responds expeditiously to remove or disable access to the material claimed to be infringing.

In order to receive safe harbor for information residing on a network, the service provider must also designate an agent to receive notifications of claimed infringement.   The information must be available on its website in a location accessible to the public, and must provide to the Copyright Office, substantially the following information:

  1. the name, address, phone number and electronic mail address of the agent;
  2. other contact information which the Register of Copyright may deem appropriate.

The provision also requires the Register of Copyrights to maintain a current directory of agents available to the public.

Effective December 1, 2016, the process for designating the agent to the Copyright office will change.  Paper registrations will no longer be accepted.  All online service providers seeking safe harbor for information residing on a system or network at the direction of users (section 512(c)) are now required to submit a new designation through an electronic system established by the Copyright Office.  The deadline for submitting the agent information is December 31, 2017.  Companies or individuals that fail to designate the agent through the new electronic system will negate the safe harbor provisions.

The purpose of the new system is to modernize the Copyright Office’s practices through a fully-electronic online system which service providers can more efficiently submit and update, and the public can more easily search and find designated agent information. While the new system requires the company or individual to set up an account with the Copyright Office and requires the listing of all alternate names that the public would likely search for the service provider’s designated agent, it is more generous in some regards as a P.O. Box may now be used instead of the old requirement for a physical location.  Additionally, the name of a department or a third-party entity may now be designated, rather than requiring an individual’s name.  An agent must be designated for each legal entity, but a single Copyright Office Account can be used to maintain multiple entities, but each must register separately.

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