Dear Retail Clients and Friends,
Retailers that allow website users to generate and post content on their websites are required to reregister their Digital Millennium Copyright Act (DMCA) agents with the US Copyright Office by the end of the year in order to continue receiving protection under the DMCA’s safe harbor provision. This edition of Morgan Lewis Retail Did You Know? takes a look at the new registration requirements and highlights what they mean for retailers who allow user-generated content on their consumer-facing websites.
Background
The safe harbor provisions of the DMCA, 17 U.S.C. § 512(c), protect online service providers from liability for copyright infringement resulting from content generated by their website users. In order to qualify for protection under the safe harbor, an online service provider must designate an agent to receive notifications of claimed copyright infringement, provide contact information for the DMCA agent on its website, and register the DMCA agent with the US Copyright Office. Retailers that allow users to post content to their websites typically address the DMCA and provide contact information for their DMCA agents in their website terms and conditions.
Reregistration of DMCA Agent Required by December 31, 2017
Earlier this year, the Copyright Office established new registration requirements for designating copyright agents under the DMCA, including the requirement that online service providers that registered DMCA agents on or before December 1, 2016 must reregister their DMCA agents by December 31, 2017 in order to remain protected under the DMCA safe harbor. New registrations of DMCA agents must be submitted online via the Copyright Office’s new online portal as the Copyright Office no longer accepts paper forms for designating DMCA agents. To further maintain protection under the DMCA, online service providers must renew their DMCA agent designations via the online portal every three years, or whenever there is a pertinent change to an agent's information.
Practical Implications
Retailers that allow users to post content on their websites, such as product reviews, photos, or ratings, should confirm the date they registered their DMCA agents with the Copyright Office. If registration occurred before December 1, 2016 then reregistration is a must to maintain protection under the safe harbor because registrations made before December 1, 2016 will become invalid as of January 1, 2018. This is also a good opportunity for retailers to update their agents and other information with the Copyright Office and review the DMCA disclosure on their websites.
This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.
