The Clock is Ticking – Countdown to the DMCA Re-Registration Deadline
No matter how you feel about the Digital Millennium Copyright Act (DMCA), set aside those feelings and focus on one thing—re-registering your DMCA agent with the Copyright Office by December 31, 2017.
As more online service providers (“OSPs”) offered content hosting services to their users, there was a corresponding increase in user-generated online content that infringed the copyrights of others. To enforce their rights, copyright owners went after the OSPs hosting the content, without regard for whether the OSPs realized the content was infringing.
Imagine the liability. OSPs are businesses after all and seek out as many customers as possible. But as an OSP’s customer base grows, the risk of inadvertently hosting infringing content increases, too, and every infringement carries a separate fine. The Supreme Court has explained that “[e]ach time an infringing work is reproduced or distributed, the infringer commits a new wrong” and “[e]ach act of infringement is a distinct harm giving rise to an independent claim for relief.”
To satisfy the goals of both protecting copyright owners and encouraging the Internet’s development, the DMCA was born. The DMCA placed the burden of tracking down infringing content on the copyright owners themselves. It also incentivized cooperation by providing OSPs safe harbor protection from infringement liability if they followed a simple set of steps to remove infringing content upon notification.
Under the DMCA, if a copyright owner discovers infringing content, the owner may send a notice to the OSP and request the material be removed or “taken down” (aka a DMCA “takedown notice”). Upon receiving a takedown notice, the OSP is required to remove the material “expeditiously” and promptly notify the user who posted the content that the content has been removed. The user may reply that the content was not infringing, and if so, the OSP must repost the content, unless the OSP receives notice that the copyright owner has filed an action against the infringer.
If an OSP complies with these steps, the DMCA relieves the OSP of infringement liability if the copyright owner sues.
It’s worth noting that the DMCA is not the only protection available to OSPs. As Eric Goldman, Professor at Santa Clara University School of Law and Co-Director of the High Tech Law Institute, explained, “OSPs can choose to forego any (g)(1) safe harbor and accept default law. OSPs might choose to do that because they feel they are protected other ways, such as by their contracts.”
The Copyright Office recognized the DMCA wouldn’t function properly if copyright owners couldn’t reach the OSPs. Anticipating this problem, the Copyright Office required OSPs to register a representative as their designated agent for receiving takedown notices. This is an essential condition for OSPs to receive DMCA protection. Without registration of a designated agent, DMCA protection is not available.
Somewhat surprisingly, when the DMCA was first enacted, the Copyright office skipped the public comment period and unilaterally chose a paper-based system for registrants seeking DMCA protection. The Copyright Office explained:
Because the DMCA was effective on its date of enactment, and a procedure to enable the designation of agents needed to be in place immediately, the Copyright Office issued interim regulations governing the designation of agents to receive notifications of claimed infringement without the opportunity for a public comment period. While the information required to be provided by the interim regulations was originally submitted to the Office in paper hardcopy, the Office later began accepting scanned submissions of paper designations via email. Once received, the Office then scanned the filings, if necessary, and posted them to the directory on its Web site. This system has continued to this day.
Until 2016, OSPs registered their designated agents using paper or scanned hard copies.
Now, after nearly 20 years, the Copyright Office has made the move to digital registration. The Copyright Office has given OSPs until the end of 2017 to re-register their designated agents in its new electronic system. Failure to re-register a designated agent has harsh consequences. If an OSP misses the deadline, it suffers a total loss of DMCA safe harbor protection.
Considering the vast amount of user-generated content hosted by OSPs, a single day without DMCA safe harbor protection could result in immeasurable liability.
Some have argued that the Copyright Office’s approach is extreme. Professor Goldman has stated that “[t]he Copyright Office invented a nonexistent problem about database corruption, and then it solved that problem by creating—without any Congressional authorization—a new formality with draconian consequences for noncompliance.” Others have said the DMCA is outdated and should receive a complete overhaul.
But this is a debate best saved for another day.
For the time being, OSPs that enjoy DMCA safe harbors should set down their boxing gloves and re-register their designated agents as soon as possible. With less than two months before the re-registration deadline, there’s little time to spare.
For more information, visit The Copyright Office’s DMCA web page at https://www.copyright.gov/dmca-directory/.
You can also login to the DMCA Registration page at https://dmca.copyright.gov/osp/login.html.
To learn more about how Internet companies operationalize the moderation and removal of third party and user-generated content, be sure to attend “Content Moderation & Removal at Scale” on February 2, 2018, hosted by Santa Clara University School of Law. The Conference will include speakers and panelists from Facebook, Google, Pinterest, Reddit, Wikimedia, Yelp, and many others. You can register online here.
And if you’d like to air your thoughts about the re-registration requirement or the DMCA in general, feel free to leave comments below.