President Trump regularly says you can’t trust the media.  He’s 100% right — if he’s talking about a type of digital media.  This would be the third-party content, such as videos, photos and posts to chat rooms, bulletin boards and discussion forums, that are hosted on a site or app (“Site(s)” for purposes of this blog), can be accessed there by referral or linking to other Sites, or is just transmitted by that Site, like a common carrier.   You need to know that on December 1 of last year, the Copyright Office changed the rules for registration and maintenance of the required “Designated Agents” for “safe harbor” protection under U.S. Copyright Law.  If a Site doesn’t comply with these rules by December 31 of this year, they lose any safe harbor protection they had and are open to copyright infringement claims and lawsuits over third party content.

Since Sites don’t own or have much, if any, control over third party content, the U.S Digital Millennium Copyright Act (“DMCA”) provides this safe harbor protection against claims of copyright infringement by third party content owners.  This protection is the regime of DMCA-compliant notice and takedown provisions that if followed, including by promptly removing infringing content when a Site receives proper notices to do so, shields the Site providers from liability for copyright violations of third party content.

Here are the key things you need to know and changes that need to be made to your Site, to continue its safe harbor protection:

  • The existing paper-based Designated Agent registration system turned out to be one of those “corrupt systems” – often containing inaccurate, contradictory or outdated Agent information. It’s been replaced by a new online system that should avoid controversies and disarray.  New paper registrations, even by upload or email, are no longer effective.
  • All existing paper registrations will become invalid on December 31, 2017. Every Site that wishes to now have or keep their existing safe harbor protection will need to register online with the new system before then.  Here’s the link to create an account for this with the Copyright Office and to provide and keep current the Agent registration information: https://dmca.copyright.gov/osp/login.html
  • Registrations must be renewed every three years. While the system is designed to send out email reminders, it’s critical not to miss this renewal, because U.S. courts have held that failure to have a registered Agent invalidates the safe harbor, even if the Site is compliant in all other respects.  While a Site can renew an expired registration at any time, the new system makes the expiration dates public.  So, potential plaintiffs, their watch firms and trolls can monitor for lapses.
  • Amendments or updates to a registration restart the three-year clock. (And, you still need to keep your Agent information current and accurate, both on your Site and with the Copyright Office for safe harbor protection to apply).
  • It’s now much less expensive to register. The fee has been reduced from $105 for one Agent (plus $35.00 for up to 10 additional Agents) to a flat fee of $6.00 for a primary and at least one secondary Agent designation.  Additional secondary Agents can be designated for the same fee. A $6.00 fee also applies to Registered Agent amendments or renewals.
  • While the information to be submitted is largely unchanged from the old system, some things have been made easier:

-It’s now permissible to name a department or even a third-party person or entity (like a law firm) as an Agent, instead of just an individual.

-While you must still provide for publication a telephone number, email address, and mailing address for the Agent(s), the mailing address can be a P.O. Box, instead of a street address.

Appointing Designated Agents for service of “takedown notices” from rights holders (you’ve done this, right?) is an essential element of the safe harbor protection.  AS mentioned above, each Agent needs to be registered with the U.S. Copyright Office and conspicuously identified on the Site.  This is usually done in the Site’s Terms of Service/Use (your Site has one of these, right?)

Hopefully, you’ve never had to defend or remedy a copyright infringement claim.  They’re usually very expensive – tens, if not hundreds of thousands of dollars or more, in legal fees and damages are not uncommon.  (And, you likely not a billionaire businessman who can afford it).  So, availing yourself and your Site of this safe harbor protection is essential and at $6.00, ridiculously cost-effective.

These are not alternate facts.  They’re what need to be done to build or keep the wall around your safe harbor able to stop illegal third party content use claims from crossing its border.

Just Sayin’ . . . TM

© 2017 Paul I. Menes

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