Maintain your DMCA safe harbour: designating agents to avoid copyright infringement

The US Copyright Office recently created an online system for website operators to designate agents to receive notices under the Digital Millennium Copyright Act (DMCA). It replaces the former paper application system. Agents designated before December 1 2016 must re-register before December 31 2017 and renew such designations every three years to maintain safe harbour status.

DMCA safe harbour is shield against liability for copyright infringement by users
In the United States, the DMCA provides a safe harbour to qualifying website operators to avoid liability for user infringement. The DMCA was passed in 1998 to balance the rights of copyright owners with the needs of website operators in the face of rapidly developing online technology. US website operators which qualify for the DMCA safe harbour cooperate with copyright owners to remove infringing content. As US law, the DMCA cannot be used to take down infringing content in other countries, but copyright owners can access similar notice and takedown systems in other countries, including Canada and EU member states.

Users who post infringing content on a website or mobile app are liable for copyright infringement. Websites that publish infringing content from users may be liable for the user's infringement, unless the operator qualifies for safe harbour protection. Since website operators are more likely to be able to pay damages than a user, and are easier to identify, copyright owners are more likely to target the operator if it does not have safe harbour protection. An unprotected website operator risks finding itself the sole defendant in copyright litigation over infringing materials posted to the website by a user.

Qualifying for safe harbour protection
Registering an agent at the US Copyright Office is an important but often overlooked requirement to qualify for the safe harbour. The registry provides contact information for copyright owners desiring to request removal of infringing material from a website. The agent:

• communicates with the copyright owner and the user;
• sends DMCA notices; and
• is crucial to the smooth operation of the DMCA notice and takedown system, protecting the rights of copyright owners and website operators from liability for their users' copyright infringement.

Failing to comply with every DMCA requirement voids the safe harbour. If copyright infringement occurs on a website while the operator is ineligible for the safe harbour, it may be liable for copyright infringement. Website operators which desire safe harbour protection must meet all requirements under the DMCA, including:

• operating an interactive website or mobile app platform in the United States (eg, social media, media platforms, hosting companies, search engines and shopping platforms);
• displaying an appropriate DMCA copyright policy on its website; 
• designating an agent in such copyright policy to receive DMCA notifications;
• registering the agent in the US Copyright Office's new online registry system;
• maintaining accurate agent information on the website and in the US Copyright Office;
• updating agent designations promptly when information changes;
• renewing agent designations at the US Copyright Office every three years; and
• complying with the DMCA notice and takedown procedures.

While website operators which previously registered agents have until December 31 2017 to re-register in the new directory, if the designated agent information is no longer accurate the website operator should re-register the agent in the new directory now.

Key changes under new registration system
By modernising and updating the agent registry system, some features in the registry have changed (mostly for the better). The following new features in the directory are important to understand:

• Website operators may hire a third party to serve as account holder to manage agent designation(s) on its behalf, provided that the operator agrees to accept the risk that it could lose the DMCA safe harbour protection if the third-party account holder fails to provide accurate information, update designations or renew designations in the directory.
• Website operators may use third parties as designated agents. This option allows large or small service providers to outsource the DMCA notice and takedown procedure. Using a third party as designated agent may allow for the faster and more efficient processing of mailed notices.
• Agents should not be identified by personal names. Website operators may instead identify the agent as a position title, a department or a third-party organisation.
• Website operators must list all names that identify the operator, including trade names, product names, domain names, mobile app names and other commonly used names for the website operator. The new directory accepts bulk uploads of alternate names using spreadsheets that will populate in the new directory.
• Search results will indicate whether a website operator's agent designation is active or inactive. Inactive status alerts copyright owners that the website is without safe harbour status.
• The old directory will be archived on January 1 2018 and all agent designations will be marked inactive. Only designations made in the new directory will satisfy the statutory requirement for qualifying for safe harbour protection.
• Website operators which fail to re-register in the new online system will not be protected by the DMCA safe harbour until a new registration is made.