By Hunter Farrell
The Digital Millennium Copyright Act (“DMCA”), which amended the U.S. Copyright Act in 1998, specifies certain limitations on the liability of online service providers for copyright infringement. One of these statutory limitations of liability pertains to the situation in which an online service provider has stored copyrighted material on its website or network at the direction of an end user (for example, the user has posted certain content to the service). Subsection 512(c) of the Copyright Act limits the liability of the service provider, if, among other things, the service provider has: (a) designated with the U.S. Copyright Office an agent to receive notifications of infringement claims; and (b) publicly posted this information on the service provider’s website. The service provider cannot qualify for the the safe harbor protections of subsection 512(c) if it has not complied with these two requirements.
The U.S. Copyright office provides detailed information about the required process for designating an agent to receive infringement notices here: http://www.copyright.gov/onlinesp/. To summarize, a form , which is available on Copyright Office website, must be completed and filed with the Copyright Office, together with a fee payable to the Register of Copyrights. The form should be addressed to: Copyright I&R/Recordation, P.O. Box 71537, Washington, DC 20024. I would send it by certified mail, return receipt requested. The basic fee, which is $105 at the time of this post, covers designation of an agent for one legal entity (i.e., the legal name of the filing organization). If the filer wants to designate the same agent for its website domain or other names by which it is doing business, there is an additional fee. To be thorough, I strongly recommend that the filer pay the extra fee to include both the legal name of the filer and the domain name(s) of its website(s) on the form. The agent can be an employee of the filer or another trusted third-party representative.
Once the Copyright Office receives a properly completed agent designation form and correct fee, it will post a scan of the form on a public list that it maintains. The list is available at: http://www.copyright.gov/onlinesp/list/a_agents.html.
Section 512(c) of the Copyright Act specifies some additional conditions that a service provider must meet to be able to qualify for the safe harbor protection. These include taking prompt appropriate actions upon becoming aware of a claimed infringement and not receiving financial benefit from the infringing activity. The statute also specifies notice and take-down procedures that the party claiming infringement and the service provider must follow. Some companies take the extra step of incorporating these requirements and procedures into their online terms of service.
See the following official summary of the DMCA for more information: http://www.copyright.gov/legislation/dmca.pdf.
I’m frequently surprised to see that certain technology companies that host or transmit end user content have not bothered to file the agent designation form with the Copyright Office and post the agent information on their websites. In the event of an infringement claim regarding user content, failure to take these easy steps would result in the loss of a very important statutory limitation of liability.