The Digital Millennium Copyright Act (DMCA) is one of the statutory guiding posts when it comes copyright law in the United States. It is often cited with respect to discussions on the not-so-popular use of digital rights management. However, the most important provision of the DMCA is Title II which provides safe harbor for online service providers on whose sites third parties (i.e. users) post infringing material. Put another way, online service providers cannot be held liable for its users’ copyright infringement simply by providing the website or other online service on which the infringing activity occurs. In order to be worthy of safe harbor, online service providers, among other things, are required to “act expeditiously to remove, or disable access to, the material” when it becomes aware that such use is infringing. 17 U.S.C. 512(c). In order to make it easier for copyright owners to inform online service providers about infringing use on the online service provider’s website, and thus trigger the expeditious movement of the online service provider, the DMCA also requires online service providers to designate a copyright agent to receive notifications of claimed infringement. See 17 U.S.C. 512(c)(2).
Failure to designate a DMCA agent and providing the agent’s name to the U.S. Copyright Office is grounds for waiving DMCA safe harbor. Moreover, subsequent designation of a DMCA agent does not protect an online service provider from infringing activity that occurred before the designation. For a recent opinion on this matter, see: Oppenheimer v. Allvoices, Inc., No.: C-14-00499 LB, (N.D. Cal. Jun. 10, 2014) citing Nat’l Photo Group, LLC v. Allvoices, Inc., No.: C-13-03627 JSC, 2014 WL 280391, at *4 (N.D. Cal. Jan. 24, 2014).
Without safe harbor, online service providers may be facing some stiff penalties. A copyright infringer is liable for either (i) the copyright owner’s actual damages plus any additional profits of the infringer, or (ii) statutory damages, which can be as much as $150,000 per work where the infringement was done willfully and the underlying work is registered with the U.S. Copyright Office.
The good news is that designating a copyright agent is an easy process. Here are the three steps:
(1) Designate a copyright agent. It is not necessary to select an attorney, but someone who regularly checks his/her mail and email will be sufficient. Once any notices are received, the agent should consult with an attorney.
(3) Fill out this Interim Form and mail it to the U.S. Copyright Office at Copyright Recordation, P.O. Box 71537, Washington, DC 20024 with the appropriate filing fee. (Sorry, no online filing.)
If you have previously submitted an agent’s name to the U.S. Copyright Office and wish to make an amendment, you can use this Amended Interim Designation and send it to the same address as above with, of course, the appropriate filing fee.
That’s it! Congratulations.
Please note that designating an agent, while required, is just one part of ensuring compliance with the DMCA’s safe harbor. If you have a website or offer services online, consult with an attorney to discuss DMCA and how you can guard your business against copyright infringement.