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

As a Phoenix law firm focusing on the needs of e-commerce and online services companies, I often see website owners who have selected a DMCA designated agent in their Terms of Service or Terms of Use but have done little else beyond that. What they don’t know is that this failure to take necessary steps after selecting their Designated Agent could be a serious (if not costly) oversight.

What is The DMCA?

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 digitized work in cyberspace is as easy as a couple clicks of a mouse or taking a screen shot and re-posting.

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 copyright owners by offering a fairly easy to follow process to assert their copyright and have copyrighted material taken down from websites and other online services quickly, the DMCA also provides an invaluable legal “safe harbor” to qualifying websites and online service providers for the infringing activities of their users.

In order to qualify for the immunity from infringement claims afforded by the DMCA and its “safe harbor”, an online operator must take some minimum steps, including not only designating a DMCA agent but, in addition, registering the name and contact information of that designated agent with the U.S. Copyright Office.

What Is The DMCA “Safe Harbor”?

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 one of the so-called DMCA “safe harbors” and the one that understandably gets the most attention from our e-commerce and online business clients.

However, this safe harbor is not self-executing. The service provider must take certain actions in order to enjoy the protections of this “storage” DMCA safe harbor.

Not doing so could lead to the safe harbor not applying to your online company at all, meaning that a copyright owner could sue your business for the copyright infringement activities of users of your website or app—even though your company never knew anything about the infringing activity.

And by the way, 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.

If your website or service 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 one of your users posted it, your site or app does not get to use this key safe harbor of the DMCA.

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.

Does A DMCA Agent Have to Be Registered?

So now you hopefully understand why, if your company’s website, app, or other online service allows its users to post material (read: images, videos, songs, or any other copyrightable work) to your online service, or store such material within its networks, you need to designate a DMCA agent to receive notifications of alleged copyright violations.

However, if you want your e-commerce or online business to be able to take advantage of the DMCA safe harbor, then yes, you need to register your designated agent. Let’s take a look at the text of the DMCA, namely 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.

By neglecting to actually register your website or online service’s DMCA agent with the Copyright Office, you make your designation of a DMCA agent in your TOU or TOS 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.

It bears repeating one more time; the fact that your website or online service did not deliberately upload or OK the infringing content is not a defense to a lawsuit for copyright infringement. That defense is waived by you for failing to comply with the DMCA.

Who Can Be a DMCA Designated 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.

What Does DMCA Agent Registration Cost?

Considering the liability for intentional copyright infringement can amount to hundreds of thousands of dollars or more for registered works, but that the actual filing fee to register your DMCA agent is, as of the time of this post, $6.00, doing so for your company’s website, app, or other online service is a no-brainer.

How Long Is DMCA Registration For?

Keep in mind that actual DMCA agent registration is only valid for three (3) years, so it is important to calendar the expiration date in your systems and re-register your DMCA designated agent in a timely manner in order to stay in compliance and be able to take advantage of the safe harbor.

Ben Bhandhusavee is the Managing Attorney for BHANDLAW, PLLC, a startup, technology, and e-commerce law practice advising founders and management teams on company startup, corporate and technology transactions, e-commerce, as well as Internet privacy concerns. The firm serves corporate and individual clients throughout Arizona, the United States, and internationally. Our offices are conveniently located along the Camelback corridor in Phoenix’s financial district. For more information about our Copyright Law practice, feel free to reach out using the contact form on the right or call us at (602) 222-5542 to schedule a meeting. Connect with Ben on LinkedIn or Avvo.