Effective December 1, 2016, companies that wish to benefit from the Digital Millennium Copyright Act's (DMCA's) safe harbors from copyright infringement liability for (i) content stored at the direction of a user (i.e., user-generated content); (ii) system caching; or (iii) information location tools (collectively, the "Safe Harbor")—including those that have previously filed a paper Interim Designation of Agent to Receive Notification of Claimed Infringement with the Copyright Office—will be required to use a new electronic system at the Copyright Office to designate an agent for receipt of notifications of claimed infringement (Designated Agent) in order to maintain Safe Harbor eligibility. All applicable service providers must file this information using the electronic system by December 31, 2017. The flat fee for filing, amending, or renewing a designation through the online system will be $6, regardless of the number of alternative service provider names and the amount of information updated.
Accurate and complete paper forms submitted prior to December 1, 2016, will be deemed to satisfy the requirements of the Safe Harbor until the earlier of (i) the filing of electronic designation information by the relevant service provider or (ii) January 1, 2018.
The designation information provided on the Copyright Office's website must be updated or renewed every three years, at a fee of $6 per amendment or renewal, to ensure that the information is current as required by the Copyright Act. Failure to comply with these requirements may deprive a service provider from immunity from claims for monetary damages arising from hosting, caching, or linking to infringing content.
Clients are encouraged to view the video tutorials and FAQs on the Copyright Office website and to contact us with any questions about compliance with the new rules for Designated Agents. More information on the Final Rule1may be found here.
Key Specifics
Service providers must register online accounts with the Copyright Office, which will require usernames, passwords, and the designation of primary and secondary contacts (with contact information to include first and last name, position or title, organization, physical mail address, telephone number, and email address) to receive automated notifications and correspondence from the Copyright Office. The service provider must also provide a general telephone number and email address, separate from the previously referenced contact individuals. This contact information provided for the account will be non-public (unlike the contact information provided in connection with the Designated Agent, which appears in the publicly searchable directory).
The electronic system is anticipated to be searchable by a number of terms, including service provider legal name, DBA, and domain. To facilitate the use by service providers of third parties to manage their designation information (or the consolidated management of subsidiary designation information by a parent company), the system will permit each registered account to submit and manage the information of multiple service providers.
The information required for agents designated through the online registration system will remain largely the same as the information required under the current (paper) system, with some small changes:
- Full legal name of the service provider
- Service provider's address (must be a physical street address)
- Any alternate names used by the service provider
- Name of agent: full legal name (first and last); a specific position or title (e.g., "Copyright Manager, Wilson Sonsini"); a specific department within an organization (e.g., "Copyright Department, Wilson Sonsini"); or a third-party entity generally (e.g., "Wilson Sonsini")
- Organization of agent, if applicable
- Physical mail address of agent (P.O. boxes are now permitted)
- Telephone number of agent (fax is no longer required)
- Email address of agent
A service provider whose Designated Agent information has expired will be able to reactivate its Designated Agent form through the electronic system by following the same process as a renewal (including payment of the applicable fee). However, the reactivation may not retroactively cover any previous lapse in the effectiveness of the Designated Agent information, and the directory will show a gap in time between expiration and reactivation. During that time, the service provider may be deemed to have no active Designated Agent listed with the Copyright Office, and thus may not be eligible for the Safe Harbor and may be subject to liability for hosting, linking to, or storing infringing content.
For more information about this alert, please contact Gary Greenstein or any member of the technology transactions practice at Wilson Sonsini.
