Online Service Providers Take Note – The New Requirements for Designating a DMCA Agent Apply to New and Existing Agents

One of the Digital Millennium Copyright Act’s (“DMCA”) cardinal features is protection for internet service providers against copyright infringement claims based on content provided by third parties (the “Safe Harbor”).  Without the DMCA Safe Harbor, countless websites that allow their users to upload or post content would risk liability for the actions of those users.  In order to take advantage of the DMCA Safe Harbor, however, service providers must observe a number of formalities, including registering an agent with the US Copyright Office to receive copyright complaints (commonly dubbed DMCA Takedown Notices).

Prior to December 1, 2016, registering such an agent required that the service provider mail a paper form and check to the Copyright Office.  Ironically, since 1998 the DMCA agent registration system –implemented at the dawn of the digital age – has run on paper and snail mail.  All of that changed as of last month, and every service provider who allows third-party content on their sites should pay close attention to the new requirements.  Not only must service providers registering an agent for the first time submit their DMCA agent registrations through a new online system, but existing agents must be re-registered on the new system by December 31, 2017.  Service providers who fail to re-register their agents by the end of this year will lose their agent’s designation, and consequently sacrifice their protection under the DMCA Safe Harbor.

Since it is crucial for service providers to re-register their existing agents, here is a step-by-step guide through the process.

First, service providers must register for an account on the Copyright Office’s new DMCA Designated Agent Directory by clicking the “Register here” link in the lower left corner of the login area and providing the information requested.  The form will ask for a secondary point of contact in this section as well.  Note that this step only establishes the account with the Copyright Office, and does not itself designate the DMCA agent.   Second, the registration form will ask for information about the service provider, including contact information for that person or company.  Again, this is not the actual agent appointment.

The name and address of the service provider and all information of the agent is publicly available on the DMCA Designated Agent Directory, so service providers should use a business address, rather than a personal one where possible.  The names, telephone numbers and email addresses of the service provider’s representatives provided in the second step of the registration process will not be publicly available on the directory.

Third, service providers must provide all of the alternate names that the public may use to search for the service at issue.  These are the names that people with copyright complaints will search for on the database.  Therefore it is advisable to over-include.  For example, the database entry for Internet Brands, Inc. includes 450 alternate names – one for each of its websites, including 1099trucker.com, 2000dogs.com and 2014cadillacxs.com.  Luckily, the new registration process, unlike the old one, does not charge based on the number of alternate names.

Fourth, service providers will actually designate their agent to receive DMCA Takedown Notices.  The Copyright Office asks for the name of the agent, the service provider (again) and the agent’s contact information.  Note that the agent may be someone internal to the service provider.  Again, the agent is the person who users with copyright complaints will contact, so service providers may choose to provide their own business address and a generic email address, rather than personal information of the agent.  For instance, Internet Brands, Inc. lists its corporate address and legal@internetbrands.com for its agent’s contact information.  Note that it is permissible to state the title of the agent instead of the agent’s name.  For instance, a service provider may choose to provide “Copyright Manager” or a similar title.

Fifth, and finally, service providers must submit the registration along with a fee.  The fee for registration under the new system is only $6.00.  This is a substantial decrease from the previous fee of $105.00 (plus additional fees for alternate names) under the old system.  Note however that registrations must now be renewed every three years.

Every DMCA agent, new and old, must register using the new online system.  By following the above steps, service providers will avoid losing their existing agent designations and, thereby, their protection under the DMCA Safe Harbor.  It is important to note, however, that registration of an agent is only one of a number legal requirements necessary to take advantage of the DMCA Safe Harbor.  Service providers should consult with their attorneys to discuss how to fully comply to ensure Safe Harbor protection.