Should Old Designations Be Forgot: A NYE Deadline for DMCA Agent Designations
Intellectual Property News
If you serve as a Digital Millennium Copyright Act (DMCA) agent or have clients who do, then you should ensure your official designations with the U.S. Copyright Office won’t automatically expire once the New Year rolls in.
Let’s Get Digital.
When the U.S. Copyright Office introduced its online DMCA agent registration system in December 2016, it discontinued accepting paper submissions for the purposes of designating a DMCA agent.
The Office also set up a dual directory for a one-year transition period. So, throughout 2017, designations that had been made prior to December 1, 2016, were housed in the U.S. Copyright Office’s paper directory (the “old directory”), while designations made after that date were housed in the U.S. Copyright Office’s electronic directory (the “new directory”).
Now the U.S. Copyright Office, like so many other enterprises, wants to go paperless. It has established a rule that “Service providers designating an agent with the Copyright Office must do so electronically by establishing an account with and then utilizing the applicable online registration system made available through the Copyright Office’s website. Designations, amendments, and resubmissions submitted to the Office in paper or any other form will not be accepted.” 37 C.F.R. § 201.38(c).
However, the U.S. Copyright Office will not be manually moving paper designations over into the new electronic database. Instead, the Office is requiring all DMCA agents to resubmit their designation through the online system by December 31, 2017.
It’s Fun to Stay within the DMCA.
Maintaining an active DMCA agent registration is important because it offers internet service providers (ISPs) certain safe harbors under the DMCA. The DMCA protects ISPs from claims of copyright infringement and certain types of damages, including monetary damages, by limiting an ISP’s liability related to the storage of infringing material on a system or network controlled or operated by the ISP, under certain conditions (see 17 U.S.C. § 512(c)(1)).
One of those conditions requires ISPs to designate a DMCA agent with the Office. The limitations on liability found in 17 U.S.C. § 512(c)(1) only apply if the ISP “has designated an agent to receive notifications of claimed infringement” (see 17 U.S.C. § 512(c)(2)). Under 17 U.S.C. § 512(c)(2), ISPs are obligated to make their designation information publicly available and to provide the U.S. Copyright Office with the name, address, phone number and electronic mail address for the agent and any other contact information “which the Register of Copyrights may deem appropriate.”
Don’t Drop the Ball.
Since you are a diligent lawyer or business representative and not Times Square, you should avoid dropping the ball on DMCA agent designations, which, along with 2017, will have a December 31st expiration date. Any provider that designated a DMCA agent prior to December 1, 2016, must submit a new designation through the online registration system by December 31, 2017. Any designations that have not been made through the online system will expire and become invalid on December 31, 2017 (37 C.F.R. § 201.38(e)). So don’t turn into a pumpkin come midnight.
To make the electronic designation, simply visit the U.S. Copyright Office’s website and fill out the online form in order to maintain an active agent designation. The fee for designating, amending, or resubmitting a DMCA agent designation is $6. The new electronic system allows multiple designations to be managed through a single account, so that a third party can manage the designations for several different ISPs. Only one agent may be designated for any single ISP.
If you would like step-by-step instructions, you may access the U.S. Copyright Office’s video tutorials, which provide advice on amending, renewing, and terminating a DMCA agent designation and/or registration account. You should note that if a registration account is terminated, all of the DMCA agent designations made through that account will also be terminated. Agents must provide a physical street address because the U.S. Copyright Office only gives waivers to use a P.O. Box in exceptional circumstances and only after a written request.
We are now in the final month to resubmit designations through the U.S. Copyright Office’s online portal before the old designations become ineffective. So make an early New Year’s resolution to submit your DMCA agent designations to the new directory before fireworks (and business relations) explode.