Websites invite users to post content for many reasons. It allows customers and clients to feel connected to the website. It provides a forum for user comments and discussion. The problem with providing an interactive environment arises when a user posts someone else’s copyrighted content. It could be a portion of a creative work, a drawing or a photograph. It could even be a link to material appearing elsewhere on the Internet. The post then becomes the basis for a copyright infringement claim against the owner of the website as well as the person who posted the content without authorization.

As a sidenote, copyright in a work attaches the moment the work is fixed in a tangible means of expression. The Copyright Act does not require registration of the work. However, registration has two primary advantages: (1) Actual notice of rights in the work; and (2) If the registration occurs prior to infringement, the owner of the work can seek statutory damages and attorneys’ fees in an infringement suit.

In 1998, the U.S. Congress amended the Copyright Act (17 U.S.C. §101 et seq.) by enacting the Digital Millennium Copyright Act (“DMCA”). The DMCA criminalized the act of using technology and devices to circumvent access to copyrighted works, whether or not actual infringement occurs. Recognizing the possible sweeping and unintended consequences for an Internet Service Provider (“ISP”), the DMCA created certain exemptions known as “safe harbors” (17 U.S.C. § 512).

Safe harbors generally apply when the ISP:

1. does not have actual or apparent knowledge of the infringing post;
2. does not receive a financial benefit from the infringing activity; and
3. acts expeditiously to remove or disable the infringing content.

Websites that invite the posting of content can also take advantage of the safe harbors that were originally designed for ISPs.

Congress recognized that enforcement of the wrongful posting of unauthorized content could be costly and time consuming. Meanwhile, the infringement of the work would continue until the work was taken down. This disadvantaged both the copyright owner and the ISP. To address this problem, Congress created a voluntary notice and takedown procedure (17 U.S.C. §512(c)(3)). The owner of the copyrighted work can notify the ISP that an infringement has occurred and request that the content be removed. If the ISP complies with the takedown notice, it has immunized itself against a claim of copyright infringement. For content posters who disagree with the takedown notice, the DMCA also has a mechanism for protesting the takedown and seeking a “putback”.

To take advantage of the safe harbors, the owner of the ISP or website must designate an agent to receive DMCA takedown notices. The U.S. Copyright Office requires the filing of an “Interim Designation” of the agent and a filing fee. The website owner must also adopt a copyright infringement policy which can be part of the website’s Terms of Use and Privacy Policy.

As of December 1, 2016, the Copyright Office imposed new requirements for the designation of an agent. ISPs and websites that do not meet these requirements will not be able to take advantage of the DMCA’s safe harbors.

The new rules are:

1. The Copyright Office requires online registration of designated agents;
2. All paper registrations of designated agents will become invalid on December 31, 2017. All ISPs and websites who have previously designated agents, must re-register via the on-line system before that date;
3. Registrations must be renewed every three years. Expired registrations can be renewed at any time; and
4. The registration fee has been reduced from $105 to $6 per designation.

The website owner must designate an agent for all alternate names that the public might search to find a designated agent, including all domains and app names. For instance, a business may have a domain name, a business name and a Twitter ID that are all slightly different. The website owner should include all of the alternative names in the agent designation documents.

Any website that invites user content should appoint a designated DMCA takedown notice agent. The website owner should also examine its own Terms of Use and Privacy Policy to ensure compliance with the DMCA. Established policies for the use of a website aids the ability to claim DMCA protection.

GCT acts as a designated agent for its clients. To inquire about these services contact Beverly Berneman.