DMCA Update: Act Now to Maintain Legal Safe Harbor

The US Copyright Office’s new regulations on the Digital Millennium Copyright Act (DMCA) go into effect today December 1, 2016. In order to maintain a website’s valuable DMCA safe harbor protections, service providers must conform to the new requirements.

Background

The DMCA amended the Copyright Act to address, among other things, situations in which Internet users upload infringing content to websites and other online services. The DMCA created a “safe harbor” that allows online service providers to avoid liability for hosting infringing content uploaded by users. To do so, they must implement a notice-and-takedown procedure. In this way, copyright owners can submit a notification to the online service provider that  content on the website infringes the copyright owner’s rights. By acting promptly in addressing such notifications (e.g., removing allegedly infringing content), an online service provider can avail itself of the DMCA safe harbor.

Since the DMCA’s inception, the Copyright Office has maintained a directory of service providers’ designated DMCA agents. That directory was a compilation of one-time filings by the service providers. While the onus was on the service provider to keep its designated agent information up-to-date, the Copyright Office’s directory was nonetheless somewhat outdated. The Copyright Office instituted its new electronic filing requirements to improve the accuracy of its directory. Under these new regulations, it will no longer accept paper filings.

The DMCA in the News

The DMCA made headlines in recent years because of the ongoing battle between plaintiff Stephanie Lenz and defendant Universal Music Corp. Lenz had uploaded to YouTube a twenty-nine second video showing her toddler bopping happily in her kitchen to Prince’s song, “Let’s Go Crazy.” Starting in a rural kitchen in Pennsylvania, the case is now a landmark decision in copyright law that protects many home videographers from DMCA takedown notices. The case stands for the proposition that before a copyright owner issues a DMCA takedown notice, it must consider whether the alleged infringement really is a fair use. If they subjectively believe that there is no fair use, they may file the takedown notice.

Currently, the Supreme Court is considering whether to grant certiorari and hear an appeal of the case. Lenz argues in its petition that to issue a DMCA takedown notice, there should be a reasonable not subjective belief that there is no fair use.

Updated DMCA Requirements

Regardless of what happens in the Lenz’ battle concerning fair use and the DMCA, online service providers must comply with the Copyright Office’s new regulations or lose their protection under the law. In order to commence or preserve DMCA safe harbor protections, online service providers should take immediate steps to:

• Open a Copyright Office account
• Appoint the company representative and DMCA agent online. Significantly, under the new regulations, the designated agent can now be a department or even a law firm.
• If you already have designated a DMCA agent, you have until end the end of 2017 to do the online designations.
• Create a reminder system internally so that every three years you either update or renew the DMCA agent designation. Once you update, the three-year period will start again from that filing date.
• File through the new system by December 31, 2017, even if you have registered before, to maintain your DMCA safe harbor protection.