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OSPs: Are You Sure You Are Safely Within the DMCA Safe Harbor?

The Digital Millennium Copyright Act (DMCA), signed into law October 28, 1998, added Section 512 to the US Copyright Act limiting the liability of online service providers for copyright infringement. Basically, the law exempts from liability online service providers on whose sites third-party users store, post, or otherwise place various types of infringing material if the provider had no knowledge of the infringing activity, if it expeditiously removed the infringing material once the infringement became known to it, and if the provider did not receive a direct financial benefit from the infringing activity.  In order to benefit from these “safe harbor provisions” of the DMCA, a service provider must meet all the requirements of the law. One of these requirements is that the service provider must designate an agent to receive notifications of claimed infringements. The contact information for the designated agent must be sent to the Copyright Office and must be posted on the service provider’s website in a location accessible to the public. The one page forms created for this purpose can be found on the Copyright Office website, but service providers may use their own form as long as it includes all of the required information.  Complying with this designation of agent requirement is not rocket science. However, failing to comply may set off unnecessary and expensive fireworks.

In a recent decision by the US District Court for the Northern District of California, Oppenheimer v. Allvoices, Inc., the court held that the plain language of the DMCA provides a “safe harbor” to an online service provider only if a service provider has designated an agent to receive notifications of claimed infringement as required under the Act. It stated that Section 512 (c) (2) “plainly specifies that a registered agent is a predicate, express condition” that must be met in order for the statutory exemption to apply. In that case, the online service provider had not designated an agent until after it had received notification through other means that infringing material had been posted to its website by a third party. It argued that its designation of an agent under the DMCA subsequent to its notification of the infringement still exempted it under the DMCA from liability for the infringement. The court held that the service provider could not invoke the safe harbor provisions found in Section 512 with respect to infringing conduct that occurred prior to its designating a DMCA-related agent with the Copyright Office, and refused to dismiss the complaint on those grounds.

The lesson here is quite simple: make sure you designate an agent at the Copyright Office and make that information available to the public on your website. The ramifications of not doing so can be enormous. Update the information on a regular basis and be sure that any modifications to your website do not result in removal of this information from public access. It is critical that these requirements be met to avoid liability for direct, vicarious, and/or contributory copyright infringement. Don’t look a gift horse from the US Congress in the mouth, and get your form on file.

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Susan Neuberger Weller manages the Trademark & Copyright Practice at Mintz. Susan assists clients with securing and protecting IP assets across the globe. She's worked with clients in a variety of industries, including pharmaceuticals, medical devices, software, electronics, and entertainment.