The Digital Millennium Copyright Act (“DMCA”) underwent some significant changes at the end of 2016, and time is running out for companies to comply to take advantage of the DMCA safe harbor protections.

When Congress enacted the DMCA in the Fall of 1998, it was trying to solve some of the issues that were arising with respect to the posting of other’s intellectual property on the internet.   The important “safe harbor” protections were designed to shield “service providers” from liability for infringement due to content posted by a user on a service provider’s website.

It is beyond the scope of this article to describe all the nuisances of what constitutes a “service provider”, and there have been many twists and turns in the way the DMCA has been interpreted over the years.  One of the most significant issues that has arisen is whether a service provider is exercising “control” over the infringing content.  Notably, curated content, for example, may fall outside the safe harbor, if a company is determining which user content to share on its website.

Take down procedures included in the terms of service of a company’s website are what people commonly associate with the DMCA.  The protocols that a company must implement should it receive notice, pursuant to its procedures, to take infringing content down must be followed in order for the service provider to receive the benefit of the safe harbor rules.  But there are other considerations.  For example, if a user repeatedly posts infringing content, it may not be enough simply to play “whack-a-mole” with that user by simply removing each instance of infringement as they occur; such a user may have to be banned from using the website completely.

The 2016 amendments do not really solve these concerns.  Instead, they focus on administration concerning how online service providers should designate their registered agents with the U.S. Copyright Office.

By streamlining the process through an online registration system and requiring the registrations to be renewed every three years, the public will have better access to the information necessary to contact registered agents and complain about infringing content.

The existing paper registration system will be completely replaced by online registration;
all paper registrations will become invalid on December 31, 2017.  Accordingly, if you already have a registration on file with the U.S. Copyright Office, you will need to file for a new registration by using the online system before the end of this year.  Note that any change to a registration triggers a new three-year renewal period.  On the bright side, the registration fee has been reduced from $105 to a flat rate of $6 per designation.  That could be a big cost savings for some companies.  The same fee applies to amendments and renewals.

For more information, review the information on the U.S. Copyright Office website.