A message in a bottle tossed into the sea stands little chance of reaching its intended recipient anytime soon. A notice, to be effective, must be delivered to someone somewhere as expeditiously as possible. What if that someone is impossible to find?
Since 1998, when the Digital Millennium Copyright Act (the “DMCA”) was enacted, the DMCA take-down notice has achieved the status of a trusted weapon aimed by copyright owners directly at the unauthorized online transmission of their content. With a good-faith belief that display of their materials is unauthorized, and therefore infringing, copyright owners can prepare take-down notices in a format prescribed by the DMCA, 17 U.S.C. 512(c)(3)(A), and send it, not to the allegedly offending Web site owners, but to the Internet service providers passively transmitting such sites. Passive service providers, not content providers, are the intended beneficiaries of the DMCA. The DMCA insulates them from liability for the infringing acts of their clients. Accordingly, service providers are generally eager to comply with the DMCA in order to avoid liability for infringement.
The initial milestone along the service provider’s road to compliance is designating an agent for receipt of take-down notices.
"The limitations on liability established in this subsection [of the DMCA] apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement … 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 [and] (B) other contact information which the Register of Copyrights may deem appropriate."
17 U.S.C. 512(c)(2).
The DMCA mandated that the Copyright Office establish a registry of designated agents for service of take-down notices. The initial system now appears to have been primitive. Service providers submitted the names and contact information of their designated agents in hard copy. The Copyright Office scanned these paper submissions and placed them into a searchable database—to the degree that a database in .pdf format is searchable. Service providers came and went over the years without removing the names of their designated agents, and those service providers that remained in business often failed to update their information. Not only did the registry become unreliable, but service providers themselves, failing to update their information both on their Web sites and in the Copyright Office (attorneys take note) rendered themselves ineligible for the very safe harbor defense against allegations of infringement that Congress granted under the law.
Beginning December 1, 2016, service providers will be able to submit and update the names and contact information for their designated agents for receipt of take-down notices electronically. What is more, the fee charged for a paper filing, $105, will be reduced to just $6 for an electronic filing, reflecting the reduced claim on Copyright Office resources to input data and maintain a reliable resource. The old paper-based registry will be phased out by December 31, 2017.
If you have any questions regarding this client alert please contact Mitch Tuchman at 919.484.2333.