Major Changes to DMCA Safe Harbor Registration Announced—All Websites With User Content Must Act

On December 1, 2016, the U.S. Copyright Office will launch a new online system for designating agents to receive copyright infringement claims under the Digital Millennium Copyright Act (DMCA). This new system will replace the current paper system, and fees will go down from $105 to $6. That’s the good news.

The bad news is that DMCA agent designations will no longer be permanent — they will expire unless renewed every three years. Have you ever forgotten to renew a subscription, or even been late paying your taxes? If you have, the consequences were probably not too steep: perhaps a late fee or a fine. This is not like that. The consequences of forgetting to renew your website’s DMCA agent designation could be very damaging.

The DMCA provides a critical shield against liability for websites that have user generated content. It would be impossible to police every piece of content users upload. Doing so would bankrupt websites that host large amounts of user content. Knowing this, in 1998 Congress passed the DMCA. Among other things, the DMCA provides a safe harbor for website owners from copyright liability arising from third party user content. The DMCA safe harbor is available as long as websites designate an agent with the Copyright Office and comply with the law’s notice and takedown rules.

The DMCA safe harbor allows sites like YouTube, Facebook, and Twitter to thrive, instead of shutting down under the twin burdens of policing user content and copyright liability. Law professor Anupam Chander argues that the DMCA safe harbor, along with other US-only legal protections, is a major reason these companies were founded and grew mostly in Silicon Valley, and not in Europe or Asia.

The Copyright Office’s new system adds a new requirement for taking advantage of the DMCA safe harbor: periodic renewal. But if you don’t renew on time, you don’t pay a fine — you lose the DMCA safe harbor. This means your website would be liable for all of its users’ copyright infringement. Copyright infringement is a strict liability claim, meaning not knowing about the infringement is not a defense.

What You Need to Do

• File a DMCA agent designation with the new online system between December 1, 2016 and December 31, 2017.
• Even if you have a current DMCA agent designation, you must re-file it using the new system. Starting January 1, 2018, the old paper-based registry will disappear along with all the designations in it.

Further Reading

• US Copyright Office: Copyright Office Announces Electronic System for Designating Agents under DMCA (October 31, 2016)
• Eric Goldman: Copyright Office Gratuitously Kills the DMCA Safe Harbor for Thousands of Websites (October 31, 2016)
• Anupam Chander, How Law Made Silicon Valley (2014)