12 Dec Going, Going, Gone – Register Online NOW or lose DMCA © Infringement Protections

If you have a website or social network presence that allows users to post/upload content such as text, photos, music or videos and you haven’t registered your Digital Millennium Copyright Act (DMCA) Registered Agent with the new Copyright Office online system, you may be enabling a new type and level of copyright liability for user content with little means of legal protection.

What happened?

After almost 20 years of administering the Digital Millennium Copyright Act’s DMCA filing requirements, the Copyright Office switched from a paper-based to an online system of recording Registered Agents under the safe harbor for Internet Service Providers. As of January 1, 2018, ISPs will no longer be protected from copyright infringement claims and lawsuits for infringing user content appearing on its websites or social media platforms unless the Registered Agent and other information previously submitted on paper has been filed online and existing DMCA obligations are met.

If you’re the kind of entity or company that tends to draw litigation due to your national presence or perceived deep pockets, creating any opening in potential copyright liability claims for third-party/user content could be quite concerning, especially since there is no way to retroactively gain DMCA coverage prior to a proper filing online. And for any company or entity with an active online presence, failure to take full advantage of the protections afforded by the DMCA would allow for unnecessary risk and expense should any copyright claims for user content arise. The DMCA is the only federal law allowing website operators and other ISPs to enjoy immunity from claims and lawsuits alleging that third party/user content on their website infringes a copyright. The Communications Decency Act, or CDA, protects ISPs against state law claims of liability based on user/third party content, such as defamation claims, but does not shield ISPs from copyright infringement claims under federal law. Placing liability on users in a Terms of Use for content they post will not protect the company or entity running the website from claims of copyright infringement (which could be defeated using the DMCA protections), and such terms can be expensive and difficult to enforce.

What to do now?

Prior to December 31st of this year, file online for full protections under the DMCA. Include information about your Registered Agent (the person who receives infringement complaints), and other required information previously filed on paper forms (have your previous paper filing available). Online registration costs $6.00.

Be sure your Registered Agent understands their responsibilities, and check that your process and systems for recording, reviewing and reacting to infringement notices is documented and in full compliance with the DMCA requirements. Make a note to renew your DMCA registration every three years, or it will lapse. Additional guidance is available on the Copyright Office website at https://www.copyright.gov/dmca-directory/ , or please contact me.

As our world goes increasingly digital, be sure to avail your company or entity of the best legal protection possible against certain claims of copyright infringement on your websites and social networks by fully utilizing the DMCA.

Peggy A. Miller is admitted to practice in NY. This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

© 2017 Peggy Miller and MWH Law Group LLP. All rights reserved.

Peggy Miller
pmMWHlawgroup@gmail.com


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