Faster, Cheaper Designation of Agents to Accept DMCA Take-Down Notices

By Mitchell Tuchman
November 7, 2016

Speech bubble illustration of information technology acronym abbreviation term definition dmca digital millennium copyright actA message in a bottle tossed into the sea stands little chance of reaching its intended recipient anytime soon.  A notice, to be effective, must be delivered to someone somewhere as expeditiously as possible.  What if that someone is impossible to find?

Since 1998, when the Digital Millennium Copyright Act (the “DMCA”) was enacted, the DMCA take-down notice has achieved the status of a trusted weapon aimed by copyright owners directly at the unauthorized online transmission of their content.  With a good-faith belief that display of their materials is unauthorized, and therefore infringing, copyright owners can prepare take-down notices in a format prescribed by the DMCA, 17 U.S.C. 512(c)(3)(A), and send it, not to the allegedly offending Web site owners, but to the Internet service providers passively transmitting such sites.  Passive service providers, not content providers, are the intended beneficiaries of the DMCA.  The DMCA insulates them from liability for the infringing acts of their clients.  Accordingly, service providers are generally eager to comply with the DMCA in order to avoid liability for infringement.  (Not small commitment when you realize that Google is said to receive up two million take-down notices every day.)

The initial milestone along the service provider’s road to compliance is designating an agent for receipt of take-down notices.

The limitations on liability established in this subsection [of the DMCA] apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement … by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information: (A) the name, address, phone number, and electronic mail address of the agent [and] (B) other contact information which the Register of Copyrights may deem appropriate.

17 U.S.C. 512(c)(2).

The DMCA mandated that the Copyright Office establish a registry of designated agents for service of take-down notices.    The initial system now appears to have been primitive.  Service providers submitted the names and contact information of their designated agents in hard copy.  The Copyright Office scanned these paper submissions and placed them into a searchable database—to the degree that a database in .pdf format is searchable.  Service providers came and went over the years without removing the names of their designated agents, and those service providers that remained in business often failed to update the information.  Not only did the registry become unreliable, but service providers themselves, failing to update their information both on their Web sites and in the Copyright Office (attorneys take note) rendered themselves ineligible for the very safe harbor defense against allegations of infringement that Congress granted under the law.

Beginning December 1, 2016, service providers will be able to submit and update the names and contact information for their designated agents for receipt of take-down notices using a new electronic system.  See Designation of Agent To Receive Notification of Claimed Infringement. What is more, the fee charged for a paper filing, $105, will be reduced to just $6 for an electronic filing, reflecting the reduced claim on Copyright Office resources to input data and maintain a reliable resource.

The old paper-based registry will be phased out by December 31, 2017. During the period between December 1, 2016, and December 31, 2017, the Copyright Office will maintain two directories of designated agents. During this transition period, a compliant designation in either the old directory or the new directory will satisfy the service provider’s obligation under section 512(c)(2) of title 17, United States Code to designate an agent with the Copyright Office.

 

The Author

Mitchell Tuchman

Mitchell Tuchman is an IP Attorney for Womble & Carlyle. He helps publishers and authors develop mutually beneficial business relationships. He also helps copyright and trademark owners optimize the value of their intellectual property and defend their intellectual property rights. His copyright clients include publishers of books and scholarly journals, authors, authors’ and artists’ estates, architects, photographers, filmmakers, software and Web site owners and developers, colleges and universities.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

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