Yes, Your Website Needs a DMCA Agent. Here’s Why.

As a Phoenix business law firm focusing in tech and e-commerce, I often see website owners who have designated a DMCA agent in their Terms of Use but have done little else beyond that. This could be a serious (if not costly) oversight. In this article, I’ll explain why.

What is The DMCA?

The Digital Millennium Copyright Act of 1998 (“DMCA“) is a federal law that deals with the protection of copyrighted materials online.

In addition to affording protection to the copyright owner through a formal process by which the owner may assert their rights over media and have copyrighted material removed from websites and other online providers quickly, the DMCA provides protection to those websites and mobile apps that allow (and in many cases rely upon) user-generated content.

However, in order to take advantage of the protections afforded by the DMCA and its “safe harbor”, an online operator must take a several minimum steps, including designating and registering a “DMCA agent”.

So why does your website or app even need a DMCA agent? To understand the importance of having one, it is helpful to understand the underlying reasons behind the Act in the first place: copyright infringement.

What is Copyright Infringement anyway?

By the book (no pun intended), copyrights are specific rights granted under the U.S. Constitution (and the Copyright Act and case decisions interpreting it) protecting “original works of authorship that are fixed in a tangible medium of expression” (17 U.S.C. §102).

These works can be almost anything from a poem you jotted down, a photo you took on your smartphone, to even the underlying software code that enables you to read this article.

Without getting too technical, copyright law protects these and other works and, more specifically, their author’s unique rights in them. For example, you must have the permission of the owner of a copyright to republish their work. Unauthorized duplication of a work may amount to infringement of that author’s copyright.

Let’s take another example; remember the days of renting movies on DVD (or, for us old timers, VHS tape)? After you pressed “Play” you would get that splash screen with the FBI logo and warning before the movie began. This ominous message was all about copyright infringement. Damages for copyright infringement can be as high as $150,000 per violation of a registered work or the copyright holder’s actual damages, not to mention in some cases the recovery of attorney’s fees and costs.

What Is The DMCA “Safe Harbor”?

Just because a copyrighted work is on the Internet or in digital form, doesn’t mean copyright no longer applies. However, while it is a lot harder to copy an author’s book or an artist’s painting in the physical world, reproducing or displaying a digital work in cyberspace is as easy as a couple clicks of a mouse or taking a screen shot and re-posting.

Now consider a site such as Facebook or YouTube that gets hundreds of millions of user generated posts per day. Should these online platforms be held liable for the copyrighted content uploaded by users?

This was the issue at the core of the DMCA when Congress took it up in the late 1990s. Thanks in no small part to the lobbying efforts of the entertainment industry and increasingly influential online companies, our Federal legislature decided that internet service providers would not be held liable for copyright infringement based on content uploaded by their rapidly growing user base.

Under the DMCA, “internet service providers” includes practically any online platform that allows its users to post content. As you can imagine, this includes a lot of things nowadays, including sites like the aforementioned Facebook and YouTube, mobile apps like Instagram and Snapchat, and even website blogs and comment sections. The complete list of service providers that fall within the statutory definition can be found at 17 U.S.C. §512(k)(1).

17 U.S.C. §512(c) contains the specific language granting immunity to service providers:

(c) Information Residing on Systems or Networks At Direction of Users.—
(1) In general. – A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider…

This is the so-called DMCA “safe harbor”. However, this safe harbor protection is not self-executing. Rather, the internet service provider must take certain actions in order to enjoy the protections of the DMCA safe harbor. Failure to do so could result in the loss of this safe harbor, meaning that a copyright owner could sue your website or mobile app for copyright infringement—even if you had no idea a user was engaged in infringing activity.

If your website doesn’t have a DMCA agent, and someone claims infringement of their copyright based on something that was posted on your website or service, and regardless of whether your site posted it or a third-party user posted it, your site or app does not get to use the safe harbor of the DMCA.

Enter The DMCA Agent.

Under 17 U.S.C. § 512(c)(2), the DMCA safe harbor only applies if “the service provider has designated an agent to receive notifications of claimed infringement.”

In plain English, internet service providers have to designate an agent to receive notifications from persons claiming infringement of their copyright.

So, all you have to do as the owner of a website or other online service is select a DMCA agent and publish the name and contact information on your site, right?

Not so fast. Many website and app operators fail to understand that selecting and designating a DMCA agent is just one of the steps to availing themselves of DMCA safe harbor protections. The other step? Letting the U.S. Copyright Office know who your DMCA agent actually is.

Let’s take another look at the text of the DMCA to find the requirement detailed in Section 512(c)(2):

(2) Designated agent. – The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.

The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.

This frequently overlooked requirement under the law is the reason you need to designate AND register your DMCA agent.

If you fail to take the key step of registering your site or app’s DMCA agent, then the actual designation of the agent is effectively meaningless–your website or online service will have waived the protections provided under the DMCA and opened yourself up to potential copyright infringement lawsuits.

Again, the fact that your website or online service did not deliberately upload the offending content is not a defense to a lawsuit for copyright infringement. That defense is waived by failing to comply with the DMCA.

Who can be a DMCA agent?

The short answer is: anyone. According to the Copyright Office, “A designated agent may be an individual, a specific position or title held by an individual, a specific department within the service provider’s organization or within a third-party entity, or a third-party entity itself.

Does my Website need a DMCA Agent?

To sum up, if your website, app, or online service allows or is dependent upon users to post material to the site, app, or service, or store material within your systems, then you need to designate a DMCA agent to receive notifications of alleged copyright violations.

Moreover, failure to register your DMCA agent opens your website or online service up to potential liability for potential copyright infringement for content uploaded by your users.

Once more, merely selecting and designating a DMCA agent for your website or app is not enough. Failure to actually register your DMCA agent’s information with the Copyright Office can mean losing the protections of the DMCA “safe harbor”.

Considering the liability for copyright infringement can amount to hundreds of thousands of dollars or more for registered works, but that the actual cost to register your DMCA agent is only a few bucks, doing so for your website, app, or online service is a no-brainer.

Lastly, keep in mind that actual DMCA agent registration is only valid for three years, so it is important to re-register the DMCA agent in order to stay in compliance and be able to take advantage of the DMCA safe harbor.

Ben Bhandhusavee is the Managing Attorney for BHANDLAW, PLLC, a Phoenix business and technology law firm working with start-up companies, creative intellectual property, Internet and digital media matters, and complex corporate M&A and technology transactions.  Ben can be reached at (602) 222-5542 or by e-mail at bbhand@bhandlaw.com