New Safe Harbor Requirement to Maintain Immunity from Copyright Infringement
If your company has a website that allows third parties to post any kind of content (text, pictures or video), then it may be liable for copyright infringement under U.S. copyright law if any of that content is not original to the party posting it. With most companies now leveraging a plethora of social media platforms in addition to their traditional websites, this risk touches most commercial enterprises.
Fortunately, Section 512 of the Digital Millennium Copyright Act (DMCA) provides immunity for copyright infringement claims based on third-party content posted on a website. However, one of the prerequisites to qualifying for that immunity is for the operator of the website to designate and maintain a "DMCA Agent" to receive and act on notices of infringement. That designation must be on file with the U.S. Copyright Office in order to be effective.
Prior to 2017, the Copyright Office had maintained a somewhat antiquated system of accepting and managing DMCA Agent Designations, requiring paper filing and offering very limited online search capabilities. Effective December 1, 2016, the Copyright Office belatedly moved the DMCA Agent filing system into the digital age with an all-electronic system, and along with that, imposed a new requirement that all DMCA Agent designations filed prior to December 1, 2016 be re-filed under the new system by no later than December 31, 2017, after which all legacy DMCA Designations will expire.
Accordingly, any company that may have previously qualified for the safe harbor under Section 512 of the DMCA will lose that safe harbor protection if it does not re-submit this key filing electronically using the new online registration system in 2017.
If your company has not previously designated a DMCA Agent, but nonetheless allows users to post or store material or content on its systems, you should consider taking advantage of this safe harbor by designating an agent, and meeting the other requirements of the DMCA safe harbor.
In addition to designating a DMCA Agent with the Copyright Office, in order to qualify for immunity, you must also: (a) identify the DMCA Agent on each applicable website in a publicly available location as the point of contact to receive notifications from third parties of claimed copyright infringement, including the physical address, phone, fax, and email (this information must match your DMCA designation with the copyright office); and (b) respond expeditiously to any effective notifications, or "take down" notices that are received, as required by the statute. Because the notifications can arise from any number of factual situations, and your response thereto can vary accordingly, we recommend you discuss with copyright counsel your process for reviewing and responding to these notifications.