IP Law Bulletin

Background

Section 512 of the DMCA, which is a section of the Copyright Act, provides a mechanism for operators of websites and information services to avoid monetary secondary copyright infringement liability based upon the infringing acts of their service users. 

The safe harbor applies to telecommunications service providers who act merely as content conduits, that is, who are engaged in “transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider”, and where the storage of that material is “intermediate and transient.” 

To enjoy the liability protection, a qualifying service provider must not have actual knowledge that the material being hosted is infringing or appears to be infringing. The service provider must act quickly to remove or disable access to infringing material upon obtaining knowledge or awareness of infringing activity. The service provider also cannot receive financial benefit directly attributable to the infringing activity in cases where the service provider can control such activity.

Registered Agent Requirement 

Another part of the bargain for enjoying the liability protection involves designating an agent (usually but not necessarily someone who works at the company) to whom content owners, such as movie studios, can send requests to take down infringing content. The designation must include contact information, an attestation as to the truth of the submitted information and as to the agent’s authority to act for the service provider.  A service provider must include its agent’s contact information, as well as mandated wording describing the process set in motion by a takedown request (which is beyond the scope of this article), in its posted terms of service.

Electronic Agent Registration Must Happen by December 31, 2017

Prior to 2017, registering an agent involved mailing hard-copy designations to the Copyright Office with an official fee payment. There was no ongoing renewal requirement, resulting in roughly 65 percent of the Copyright Office’s legacy online agent registry database including out-of-date contact information. Further to the Office’s new regulation concerning agent registrations, in December 2016 an electronic registration process was made available, and now is required. All current registrations that have not been filed using the new system will become invalid as of December 31, 2017 and need to be re-registered before that date using the new system to qualify for the liability protection. The Copyright Office has published FAQs about the new requirements, and has made useful video tutorials available about the electronic registration process. The online registrations must be renewed every three years. Once registered, service providers will receive email designation renewal reminders. The online registration fee, and renewal fee, is just $6.