Three Things You Need to Know to Keep Your DMCA Safe Harbor Protection

ON Dec. 1, 2016, the U.S. Copyright Office's final rule governing how online service providers must designate their "agent" for infringement notifications pursuant to the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c), came into effect. While the final rule establishes a more streamlined procedure for designating agents, it also imposes new requirements on service providers—and if those requirements are not met, service providers will lose eligibility for the DMCA safe harbors.

Under the DMCA, for service providers to take advantage of the safe harbors against copyright infringement, they must designate an agent for receipt of DMCA takedown notifications. The designated agent's information must be posted publicly on the service provider's website and sent to the Copyright Office for inclusion in a directory of designated agents. 17 U.S.C. § 512(c)(2). Under the old system, designating an agent with the Copyright Office required a cumbersome and expensive paper application process, but a designation was valid under the DMCA for as long as the information remained correct and current.

The good news is that the new rule creates a cheaper and more efficient online application process. The bad news is that it requires all service providers to redesignate agents before the end of the year, and every three years thereafter, in order to retain safe harbor protections.

Here are three things you need to know to remain eligible for the DMCA's safe harbors: As of Dec. 1, 2016, every service provider is now required to file a new agent designation through the online system, whether or not it has already designated an agent through the old paper process. Service providers have until Dec. 31, 2017, to register for an electronic account and redesignate their agent using the new process, after which date all previous designations under the old process will expire and become invalid.

All designations under the new system will last only three years, meaning that service providers will need to redesignate before that term expires in order to retain safe harbor protections. As under the interim rule, service providers will continue to be responsible for amending designations when needed to keep them current and accurate. Any amendment restarts the three-year clock for designation renewal. Each type of application—whether to designate an agent or amend a designation—will cost a flat fee of $6.

Be sure to calendar your renewal deadline three years out—or you risk losing the safe harbors! If an online service provider fails to renew its designation by the end of three years, the designation will be labeled "terminated" in the Copyright Office directory, and even if renewal is made thereafter, the system will still indicate the gap in safe harbor coverage. Service providers thus have extra incentive to maintain valid and current agent designations with the office, since any lapse in DMCA protections will be visible to rights-holders.

On the plus side, the Copyright Office has adopted a flexible requirement for who may be designated as an agent. A service provider may designate an individual, a specific position or title held by an individual at its organization, a third-party entity generally (i.e., a third-party takedown service), or a specific department within the service provider's organization or within a third-party entity. P.O. Box addresses for designated agents are also now permitted.

James Rosenfeld is partner and co-chair of DWT's media practice group, based in New York. Abigail Everdell is an associate based in New York.