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December 14, 2017

Don't Risk Copyright Liability - Re-Register the Designated Agent for Your Website by December 31st

In order to maintain the "safe harbor" protections and immunity from copyright infringement under the Digital Millennium Copyright Act (DMCA), you must register the Designated Agent for your website with the United States Copyright Office by December 31, 2017.

The DMCA is a 1998 amendment to the Copyright Act that adds several new provisions prompted by the technological innovations of the electronic or cyber revolution of the late 20th and early 21st centuries. Though largely ignored by the general population, the DMCA is starting to garner the attention of many, and should be on the radar screen of every company that is engaged in hosting web content, such as permitting users to upload photos and videos, and here's why.

The "safe harbor" provisions of the DMCA gives an internet service provider (ISP) – defined as any "provider of online services or access" – i.e., a website operator, immunity from copyright infringement liability for user-generated content, but only if certain conditions are met. Primarily, the website operator must have procedures for, and a designated agent to accept, what is known as a DMCA "take-down" notice. In addition, to be absolved of liability, the web host: 1) cannot have actual knowledge of the infringing material or activity; 2) cannot be aware of facts or circumstances from which infringement is apparent; and 3) the provider must act expeditiously to remove the claimed infringing content. Finally, the website cannot benefit financially from the infringement.

In late 2016, what appeared to many to be an innocuous amendment to the DMCA that requires electronic registration (or re-registration) of an ISP's designated agent has proven to be problematic for some. Many believed that their prior (as was required previously) "paper" registration will satisfy the new requirement, but that is not the case. Even if a web host had previously registered by submitting a paper form, that same web host must register (or re-register) electronically with the Copyright Office. The failure to do so can jeopardize an ISP's immunity under the "safe harbor." And the risk can be a significant one. See BMG Rights Management (US) LLC v. Cox Communications, Inc. (1:14-cv-1611)(E.D. Va. 2016)(jury awarded $25 Million).

So before January 1, 2018, be sure to log on to the Copyright Office website, electronically register your designated agent (whose contact information must be updated), and pay the nominal fee. The risk of copyright liability and the loss of the DMCA's safe harbor are traps for the unwary and uninformed.

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