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December 31st Deadline for DMCA/OCILLA Designated Agent Renewal Approaching

September 19, 2017

Overview

The U.S. Copyright Office has implemented a new electronic system for registering agents designated to receive notifications of claimed copyright infringement, under Section 512 of the Digital Millennium Copyright Act (“DMCA”), also known as the Online Copyright Infringement Liability Limitation Act (“OCILLA”). Entities that registered designated agents through the U.S. Copyright Office’s previous paper-based designated agent registration system have until December 31, 2017 to re-register through the online system. Failure to register a designated agent through the new online system by the deadline will result in the loss of the safe harbor protections under OCILLA, leaving service providers and website operators potentially vulnerable to certain types of claims for copyright infringement.

Subject to certain conditions, OCILLA’s safe harbor provision gives Internet service providers and website operators immunity from copyright infringement liability resulting from temporarily hosting content uploaded by users, for example, on blogs, product postings, in comments, or on message boards. To take advantage of OCILLA’s safe harbor provision, service providers must (1) designate an agent to receive take down notifications of claimed copyright infringement arising from hosted user content; (2) make the designated agent’s contact information publicly available on its website in compliance with OCILLA’s requirements; and (3) electronically register the designated agent with the U.S. Copyright Office. Service providers must maintain up-to-date designated agent information on their website and with the U.S. Copyright Office. 

Electronic Registration: The U.S. Copyright Office’s online directory of agents designated to receive DMCA takedown notifications replaces the previous paper-based system. As such, any service provider that previously designated an agent with the U.S. Copyright Office using the paper-based system must submit a new designation electronically. The U.S. Copyright Office will not convert existing paper-based agent registrations to the electronic system. Any designation not made through the online system will expire and become invalid on December 31, 2017.

Fees: The fee to designate, amend, or resubmit an agent designation is $6 per filing — significantly reduced from the previous fee of $105 for paper-based designations.

Renewal: Electronically-registered designated agent filings will expire and become invalid after three years, and therefore must be renewed regularly. For electronic agent designations, the U.S. Copyright Office’s electronic system will automatically email renewal reminders at 90 days, 60 days, 30 days, and 1 week prior to the renewal deadline. Given the benefits of designating a registered agent, and the risk of liability should a registration lapse due to neglect, service providers should also set up internal processes to track and meet renewal dates.  

Related Entities: Related or affiliated service providers that are separate legal entities (e.g., corporate parents and subsidiaries) are considered separate “service providers,” and, as such, each entity must have its own, separate designation registered with the U.S. Copyright Office and listed on its website.

The DMCA Designated Agent Directory is available at: https://dmca.copyright.gov/osp/login.html.

For more information about the DMCA and DMCA designated agents, please contact the attorney with whom you work or Yvonne Tingleaf at 503-796-2902 or ytingleaf@schwabe.com or Alexandra Bodnar at 503-796-2408 or abodnar@schwabe.com.

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