All Internet Service Providers (“ISPs”) that registered a designated agent by paper filing prior to December 1, 2016 must re-register their agent electronically by December 31, 2017 to maintain coverage under the safe harbor protection afforded by section 512 of the Digital Millennium Copyright Act (“DMCA”).
Background. In 1998, Congress enacted the Online Copyright Infringement Liability Limitation Act (codified at 17 U.S.C. § 512) as part of the DMCA. Among other things, Section 512 provides safe harbors from copyright infringement liability for ISPs, through which ISPs can obtain immunity from claims for damages arising out of copyright infringement by users. To qualify for this safe harbor protection, an ISP must fulfill several compliance obligations including designating an agent to receive notifications of claimed copyright infringement.
Since the DMCA’s enactment, ISPs have designated agents with the Copyright Office using the Office’s or their own paper form. The Copyright Office then has made scanned copies of these filings available to the public through its website. Although the DMCA requires ISPs to update their designations as information changes, the Copyright Office undertook an examination of its directory and found that much of the information had become inaccurate and outdated. In 2011, the Copyright Office issued a notice of proposed rulemaking (“NPRM”) proposing a new, fully-electronic system for ISPs to designate registered agents. A further NPRM was released in May 2016 proposing to lower the fee required for designating an agent through the online system to $6.
On November 1, 2016, the Copyright Office’s Final Rule amending the procedure to designate a registered agent was published in the Federal Register. The rule took effect on December 1, 2016.
New Electronic Agent Registration Requirement. Every ISP is required to submit a new designation electronically by December 31, 2017 to maintain an active designation with the Copyright Office and be covered by the DMCA’s safe harbor provision, even if the ISP previously filed a designated agent with the Copyright Office by paper filing. During the transition period, a compliant designation in either the old directory or the new directory will satisfy the ISP’s obligations and the ISP will remain covered by the safe harbor protections until December 31, 2017. The fee to designate an agent electronically is set at $6.
To access the online registration system, ISPs must go to the DMCA designated agent log-in to start the registration process. An ISP’s registered agent designation will last for a 3-year period, at which point it must be renewed electronically. The three-year clock resets each time an agent designation is amended through the Copyright Office. While parent companies can manage the designations of all of their subsidiaries through one central account, ISPs that are separate legal entities each require separate designations.
ISPs must also post their designated agent information on their websites and keep it up-to-date to qualify for the safe harbor provision.
If you have questions about the DMCA or designating your registered agent to qualify for the safe harbor provision, please contact Scott Friedman or Becca Rabin at (312) 372-3930 or firstname.lastname@example.org or email@example.com, or Bruce Beard at (314) 394-1535 or firstname.lastname@example.org.