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03/2/2017
Barack Ferrazzano Client Alert

Client Alert: Don't Lose Safe Harbor Protections Afforded by the DMCA

New Requirements Every Service Provider Should Consider

Action Items

New Requirements for DMCA Safe Harbor Protection

The U.S. Copyright Office has recently imposed new requirements that service providers must fulfill in order to maintain the Digital Millennium Copyright Act's ("DMCA") safe harbor protection. Service providers who do not meet these requirements will lose the safe harbor protections afforded by the DMCA. This is important because the definition of "Service Providers" under the DMCA is defined broadly enough to cover any website that allows users to post content. Therefore, if your website contains a comments section, consumer reviews, a community forum, or any other place that allows visitors to post content, it is prudent to include a DMCA takedown procedure in your website policies, which will, among other things, require you to designate a specific person charged with receiving notices of copyright infringement ("Registered Agent").

The new rules do not, however, affect parties delivering notices under the DMCA. Therefore, there will be no change to your delivery of DMCA takedown notice regarding content that you believe infringes your copyrighted materials.

What is the DMCA Safe Harbor?

The DMCA was enacted in 1998 to address intellectual property issues caused by the growth of the Internet. Among the DMCA's most important provisions is its "safe harbor" provision, designed to shield companies from liability for copyright infringement arising from content posted on its website by a third party user.

In order to qualify for this protection, a company should:

What are the New Requirements?

The new rules change how service providers designate Registered Agents to receive notices of copyright infringement claims with the Copyright Office. Among the key requirements of the new rules are the following:

  1. All Registered Agent submissions must now be submitted online because the Copyright Office no longer accepts paper or PDF submissions.
  2. All existing paper Registered Agent designations will become invalid on December 31, 2017. This means that all service providers, including those who have already designated a Registered Agent, will need to re-register that Registered Agent via the online system before that date.
  3. Registered Agents must be renewed every three years. Expired registrations can be renewed at any time. Any amendment or update to a Registered Agents starts the three year clock anew.
  4. The Registered Agent fee has been reduced from $105 to a flat rate of $6 per Registered Agent. The same fee applies to amendments and renewals.

What Do I Need To Do?

Service providers who want to obtain or maintain safe harbor protection should designate their Registered Agents as soon as possible with the Copyright Office and utilize docketing reminders to ensure future renewal deadlines are not missed or else they could lose out on the DMCA's safe harbor protection.

The text and U.S. Copyright Office Summary of the changes can be accessed at:
https://www.federalregister.gov/documents/2016/11/01/2016-26257/designation-of-agent-to-receive-notification-of-claimed-infringement

We Can Help

For more information about the DMCA safe harbor, proper DMCA notice requirements and the rule changes, please contact Karyn Doerfler, Scott Slavick or Wendi Sloane, or contact your Barack Ferrazzano IP attorney.

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