Changes to the DMCA Procedure
If your company offers a website, app or service that allows others to post content, or if you’re a content creator, you’re probably familiar with the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The Copyright Office recently adopted new rules that update the process that has been in place since 1998. Fortunately, the new process promises to be easy to use and should be inexpensive; unfortunately, if you don’t act soon, you may lose the protections of the DMCA.
First, a look back in time to the heady days of 1998 and adoption of the DMCA notice and take-down procedure. Even in the time before Napster, Congress heard from media companies about the risks posed by the internet and electronic distribution of music and other content. They also heard from technology companies who insisted that using a website or FTP site to exchange copyrighted content was no different than selling counterfeit CDs at a swap meet. Generally, it’s the person offering the counterfeit CDs who has a problem. Absent some additional facts, technology providers didn’t want to be held accountable for the acts of users. Section 512(c) created a safe harbor for those service providers. If they accepted notices of copyright misuse and then expediently took the content down from their public website, they could not be held liable under the copyright act for having hosted infringing content. To accept notices, they were required to designate a registered agent.
The alternative to safe harbor is something that we learned in the Napster case itself: A technology service provider who knowingly allows (or assists) others in infringing behavior may itself be held liable for infringement. Through contributory infringement or through inducement, as well as through copying that may itself occur incident to the delivery of the service allowing infringement, a service provider can find itself – like Napster – liable for the acts of users who are outside of the control of the service provider.
Effective December 1, 2016, the registration process for registered agents shifts from a paper process to an online process. Registrations made prior to December 1, 2016, will remain effective until December 31, 2017. The deadline of December 31, 2017, will become critical, as a service provider who fails to renew their registration via the new online system risks becoming ineligible for the safe harbor protection of Section 512(c).
Registrations made through the new online procedure will be effective for three years, and technology providers should carefully calendar their renewals. Failure to timely renew may result in the loss of safe harbor for works posted by others. Safe harbor appears to have had the intended effect of an explosion of websites, apps, and services that allow consumers to post and engage with content over the internet. If you have a business benefiting from DMCA safe harbor, you will continue to receive the same benefit under the new online procedure.