Minimizing Website Infringement Liability: (Re)Designate Your Digital Millennium Copyright Act Agent


If you have a brand, chances are you have a website.  And if you have a website, chances are you have content on the website – probably some combination of text, music, photos, and graphics, including a logo that may be registered with both the USPTO and the Copyright Office.  You’re probably taking steps to help ensure that infringing content isn’t posted to your website –right?  In case you hadn’t heard of it, here’s an additional nifty, inexpensive way for you to help minimize liability even further: compliance with the Digital Millennium Copyright Act (DMCA).

The DMCA provides a “safe harbor” to online service providers (SPs) – typically, owners of websites – who take certain steps.  This means SPs who comply with the DMCA may not have to pay damages if their websites allegedly infringe a third party’s content.

One aspect of DMCA compliance just got a little easier.  As of December 1, 2016, the Copyright Office allows SPs to designate an agent under the DMCA through a quick online filing.  Believe it or not, until recently, SPs had to file original forms bearing pen-and-ink signatures!

If you previously designated a DMCA agent with the Copyright Office, that designation will lapse unless you file a new designation using the new system no later than December 31, 2017.  Missing this deadline means that the benefits of the DMCA’s safe harbor protection will be lost.

Under the new system, filings are much cheaper – only $6 per designation, including any “alternate names” of the SP, as opposed to a minimum of $105 under the old system.  It will be easier to update the address of the contact information of the designated agent (also for a $6 fee).  And designations are posted to the online directory of agents as soon as the Copyright Office receives your electronic payment.  So that the directory remains up-to-date, the Copyright Office is now requiring that all SPs renew their DMCA registration every three (3) years, also for a $6 fee.

Happy filing!

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Date Published: December 28, 2016
Janet Fries is of counsel in the Intellectual Property Practice Group of Drinker Biddle & Reath LLP. Her practice is focused on copyright and trademark law, entertainment law and Internet law. A frequent lecturer, Janet has published a number of articles on copyright and related topics. She is an active member of the Intellectual Property Section of the American Bar Association: she is a member of the Intellectual Property Section Council, the Continuing Legal Education Board and the Copyright Reform Task Force. She is a fellow of the American Bar Foundation, a member of the board of directors of Washington Area Lawyers for the Arts, and serves as an adviser on the American Law Institute’s Restatement of the Law, Copyright project. Janet co-teaches “Legal Issues in Arts Management,” a graduate seminar at George Mason University and “Art, Cultural Heritage & the Law” a seminar at George Washington University Law School.
Jennifer T. Criss counsels clients in the areas of copyright, trademark, technology transactions, unfair competition, and licensing in the industries of arts & entertainment, music, and information technology. She also has experience in Copyright Royalty Board proceedings.