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Get your safe harbors while they’re hot

[vc_row padding_top=”0px” padding_bottom=”0px”][vc_column fade_animation_offset=”45px” width=”1/1″][text_output]Another rant from the Grumpy Old Company Lawyer.

Does your startup have a website? Do you ask users to help generate any kind of content, comments, feedback, or other interaction? If so, then you need this new and improved safe harbor from being sued for copyright infringement that your wonderful users might commit. And, you better do it before December 31, 2017!

Wait, what?  I could get sued if someone else puts copyrighted material on my website?  


Lucky for you, the Digital Millennium Copyright Act (“DMCA”), provides some relief, but you have to register before you get sued in order to take advantage of it.

The U.S. Copyright Office is required to maintain a “current directory” of agents that have been designated by online service providers to receive notifications of claimed infringement. That’s not just the big ISP’s that everyone thinks about, that’s you, if you maintain an interactive website, for example.

Since the DMCA’s enactment in 1998, online service providers have designated those agents with the Copyright Office using a paper form, and the Copyright Office made scanned copies available to the public by posting them on their website.  So “last century,” right?”  

Although the DMCA requires service providers to update their designations with the Office as information changes, a look at the Office’s current directory revealed that many of us have failed to do that, and much of the information in the directory is inaccurate and out of date.

On September 28, 2011, the Office issued a notice of proposed rulemaking to update relevant regulations in anticipation of creating a new electronic system through which service providers would be able to more efficiently submit, and the public would be better able to search for, designated agent information. (Yes, they started this website update five years ago—for you web developers out there.)

On May 25, 2016, with the electronic system in its final stages of development, the Office issued a notice of proposed rulemaking proposing significantly lower fees for designating agents through the new online system. As the next step in implementation, the Office announced in October the adoption of a final rule to govern the designation and maintenance of DMCA agent information under the new electronic system and to establish the applicable fees, all to start on December 1, 2016.

Sounds good, right? Lower fees, electronic registration instead of paper, easier access for everybody. But, the new system will require you to re-register by December 31, 2017, at the latest, and to renew whenever your information changes or every three years, whichever comes first, or you can lose your protection. The old system was “one and done,” as long as your information didn’t change.   

Let’s step into the Wayback Machine.

In 1998, Congress enacted section 512 of title 17, United States Code, as part of the Digital Millennium Copyright Act (“DMCA”). Among other things, section 512 provides safe harbors from copyright infringement liability for online service providers that are engaged in specified activities and that meet certain eligibility requirements. A service provider seeking to avail itself of the safe harbor in section 512(c) (for storage of material at the direction of a user) is required to designate an agent to receive notifications of claimed copyright infringement by making contact information for the agent available to the public on its Web site, and by providing such information to the Copyright Office.

The paper-and-scan system that was originally implemented to put the DMCA safe harbor into effect was, as might be expected, inefficient, expensive, and ultimately, not reliable. The Copyright Office started an effort to build a new electronic system to replace it in 2011. They anticipate that the new electronic system to register designated agents with the Office will be launched on December 1, 2016. As of that date the Office will no longer accept paper designations.

Here’s the medicine: Because a substantial amount of the designated agent information currently listed in the Office’s directory is inaccurate or out of date, all service providers seeking a safe harbor, including those that have previously designated an agent using the paper process, are required to submit new designations through the electronic system by December 31, 2017.

Here’s the spoonful of sugar: The Office announced it would lower the fee for designating an agent through the new system. The Office proposed reducing the current fee of $105, plus an additional fee of $35 for each group of one to ten alternate names used by the service provider, to a flat fee of $6 per designation—whether registering a new designation, or amending or resubmitting a previously registered designation.

Check out the final rules published by the Copyright Office for details about how to fill out the new electronic forms and file the registration.

Go to to look for the new reporting system to be up after December 1, 2016.  


This blog is for general information only, and is not intended to be, nor may it be taken as personal legal advice. You should consult qualified independent intellectual property legal experts to make sure your company is complying with copyright laws and regulations.


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