The Digital Millennium Copyright Act (“DMCA”) grants Internet service providers and intermediaries (collectively “ISPs”) a series of safe harbors that limit secondary liability for copyright infringement. 17 U.S.C. § 512 provides four categorizes of protected conduct, including: (a) servicing transitory digital network communications, (b) providing system caching, (c) storing information on systems or networks at the direction of users, and (d) utilizing information location tools. The DMCA provides additional protections for ISPs that qualify as “public or other nonprofit institution[s] of higher education.” 17 U.S.C. § 512(e).
Importantly, for three out of the four categories of protected conduct, safe harbor is conditioned on the implementation of a notice and takedown system, which requires that, among other things, ISPs designate an agent to receive notifications of claimed infringement. 17 U.S.C. § 512(c)(2). These designated agents must register with the Copyright Office. In December of 2016, the Copyright Office launched a new online registration system called the DMCA Designated Agent Directory (“Directory”), located here, and issued new guidelines for agent registration.
To ensure continued compliance with the DMCA’s notice and takedown provisions, ISPs should be aware of the following changes:
- On or after December 1, 2016, all new designated agent registrations must be made using the new online Directory.
- To remain effective, agent registrations made prior to December 1, 2016 must be re-registered using the new online Directory by December 31, 2017.
- Going forward, all changes to designated agent information, such as changes in address or the designation of a new agent, must be made in the new online Directory.
- Under the new registration procedures, a DMCA agent registration automatically expires three years after the initial registration. To keep the registration active, the ISP must re-register or update the registration every three years.
During the “transition period” (between December 1, 2016 and December 31, 2017), the Copyright Office will maintain two parallel directories of designated agents. Thus, until December 31, 2017, copyright owners should consult both the new online Directory and the old registry, known as the Directory of Service Provider Agents for Notification of Claims of Infringement,” located here. After December 31, 2017, all registrations in the old system will become ineffective.