Top 7 Reasons Why Websites Need a DMCA Agent
The Digital Millennium Copyright Act (DMCA) provides copyright protection and some limitations of liability for online copyright infringement if safe harbors are used. It governs the majority of US-based websites and internet service providers.
What is a DMCA agent?
In order to employ the safe harbor protections offered by the DMCA, certain types of internet service providers have to designate an agent to receive notifications from people claiming infringement of their copyright.
Why would a website need a DMCA agent?
Any website that allows users to post material on the website or store material within their systems needs a DMCA agent. The complete list of service providers that fall within the statutory definition can be found at 17 U.S.C. §512(k)(1). The DMCA agent will receive notification of any alleged copyright violations.
Can the website be responsible for copyright violations?
Absolutely. If the website doesn’t have a DMCA agent, and someone claims infringement of their copyright based on something that was posted on that website – regardless of whether the site posted it or a third-party user posted it – the site does NOT get to employ the safe harbors of the DMCA. Also, if they fail to comply with the DMCA even after receipt of a proper notice, the website is also opened up to potential liability. For example, someone comments and includes a brand logo in their post. That could be a copyright violation.
Are copyright violations expensive?
Potentially. For infringement of a registered copyright, the violator can be subject to statutory damages of $150,000 for each instance of infringement, along with full recovery of attorneys’ fees and costs.
If the website already has a DMCA agent, then they are ok?
No. In December 2016, the U.S. Copyright Office introduced a new online registration system for designating DMCA agents. It has allowed for a transition period of one year – until December 31, 2017 – for any agent who was registered previously to maintain the designation. During the transition period, a complaint can be made to a previously registered DMCA agent or a newly registered DMCA agent. After December 31, 2017, the old registration system (containing agents registered through November 30, 2016) will no longer be valid.
Who can be a DMCA agent?
Anyone. According to the United States Copyright Office, “A designated agent may be an individual (e.g., “Jane Doe”), a specific position or title held by an individual (e.g., “Copyright Manager”), a specific department within the service provider’s organization or within a third-party entity (e.g., “Copyright Compliance Department”), or a third-party entity generally (e.g., “ACME Takedown Service”).”
Is it expensive to get a DMCA agent?
No. DMCA agent registration only costs $6. On the other hand, the cost to not register is quite high. The contact information of the DMCA agent must also be posted on your website. The registration is only valid for 3 years, so it is important to re-register the DMCA agent.
About the author: Laura Rogal is an attorney at the Phoenix law firm of Jaburg Wilk. She assists clients with their intellectual property legal needs including internet law, social media, domain disputes and IP litigation.