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If your business lets third parties post content on your website – even a simple product review – please keep reading. Recent changes in U.S. copyright law require online service providers to take additional steps to avoid liability for infringing content posted by their website visitors. As of December 1, 2016, the process for designating agents to receive infringement notices under the Digital Millennium Copyright Act (DMCA) has been modernized. Although this means you can now designate an agent online, rather than by snail mail, it also means all prior designations must be updated by the end of 2017 or your safe harbor protection will be in jeopardy.
First Things First: Designate an Agent to Receive Notice of Infringement Claims
The DMCA provides safe harbor from copyright infringement liability for online service providers (OSPs) (17 U.S.C. 512(c)) that meet certain requirements. If your website is interactive and permits users to post content or comments, or offers message boards, blogs or social media integration, you are likely to be deemed an OSP under the statute. The DMCA safe harbor provisions can protect you from being held liable for infringing material posted by your site's users if you take the following steps. To fall within the safe harbor, an OSP must (1) designate an agent to receive notifications of claimed copyright infringement, (2) establish effective "notice and takedown" procedures, (3) promptly remove infringing content upon notification and (4) have no actual or effective knowledge that the material in question is infringing.
Designating an agent requires not only posting the agent's contact information on your website, but also providing that information to the U.S. Copyright Office, which maintains an online directory of designated DMCA agents for public use. Most website Terms of Use include DMCA takedown language, but designating an agent is often overlooked in the fast-paced world of e-commerce. And because the safe harbor does not protect against infringement claims that arise prior to designating an agent, this is an important first step.
Modernizing the Process
Until now, the process of designating an agent under the DMCA has been notoriously cumbersome. To designate an agent, an OSP had to submit a paper document to the Copyright Office identifying a specific individual as its DMCA agent. The designation lasted as long as that individual remained the agent; a new person filling the role had to make a separate paper submission to the Copyright Office.
As of December 1, 2016, the Copyright Office has updated and streamlined the DMCA Agent designation procedure to an online process available here.
Benefits of the new process include:
What This Means for You
Any OSP that has previously designated an agent with the Copyright Office will have until December 31 to submit a designation through the new online registration system. After that date, all prior paper designations will expire and the OSP will lose its safe harbor protection unless it has registered in the new online directory. Also,
The new system will automatically email reminders of the expiration dates to the primary and secondary contacts, service provider, and designated agent. However, we also recommend tracking and docketing these deadlines as you would track and docket domain expirations and trademark maintenance periods.
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Qualifying for the DMCA safe harbor for copyright infringement claims is vital to avoiding liability for content posted on your website by third parties. Far from being ministerial, keeping your DMCA agent information current with the Copyright Office is essential to safe harbor protection and an important legal responsibility.
Day Pitney's Trademark, Copyright and Advertising (TMCA) Group is well-versed in the DMCA and would be pleased to answer any questions you may have about the updated Agent designation process. For assistance, please contact any of our TMCA team members, including those listed in this advisory.
Day Pitney Intellectual Property Attorney Brandon McCool authored the article, "The Game Plan: Conducting Trademark Clearance for New Team Names," for Sports Business Journal.
On January 26, Day Pitney Attorney Chris Hoolehan will present on the Trademarks panel at the "22nd Annual Intellectual Property Year in Review," virtual conference presented by the Boston Bar Association.
Intellectual Property Partner Jonathan Tropp will speak at the "Attorney's Guide for Understanding Copyright Law and Software in 2021," webinar presented by Thompson Reuters, the Global Cyber Institute, and Lexeprint Publishing on January 24.
Partners Kevin J. Duffy and Richard H. Brown authored the article, "Shouting FIRE! (or Worse) on Social Media: The Interplay of the First Amendment and Government Involvement in Efforts to Limit or Remove Social Media Content," which was published in the Intellectual Property & Technology Law Journal.
Mark Romance authored the article, "UNITED STATES: Major League Soccer Denied on Third-Party Use" for INTA Bulletin, the online publication for the International Trademark Association.
On April 6, Day Pitney Intellectual Property Attorney Brandon McCool discussed with University of New Hampshire Franklin Pierce School of Law's The Legal Impact podcast his recent article published in the Sports Business Journal, which details the unique trademark process sports teams must undergo when they are selecting and clearing names and logos for their franchises.
Day Pitney Press Release
Day Pitney's Intellectual Property attorneys assisted client LogMeIn, Inc., a recognized leader in remote-work technology, in their company rebrand and relaunch as GoTo.
Firm client Loni Sherwin, BlackRock’s Vice President and Legal Counsel, was featured in Profile Magazine.
Profile piece on firm client Mandy Petrillo, Senior Club Counsel for the Boston Red Sox and Fenway Sports Management, in Vanguard Law Magazine, praises Petrillo for her "find a way to yes" mentality and ability to "make the best of whatever circumstances she's afforded."
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This website may use cookies, pixel tags and other passive tracking technologies, including Google Analytics, to improve functionality and performance. For more information, see our Privacy Policy. By using our website, you are consenting to our use of these tracking technologies. You can alter the configuration of your browser to refuse to accept cookies, but if you do so, it is possible that some areas of web sites that use cookies will not function properly when you view them. To learn more about how to delete and manage cookies, refer to the support instructions for each browser (e.g., see AllAboutCookies.org). You may locate Google Analytics' currently available opt-outs for the web here.