Posted on 11/28/2016 1:09:25 PM By Alexis Payne

The U.S. Copyright Office recently issued a new rule (to be codified at 37 CFR Part 201) that significantly changes the registration process under the Digital Millennium Copyright Act (DMCA). Beginning December 1, 2016, all DMCA registrations by Internet service providers must be done online instead of via mail (as was previously required). And by December 31, 2017, registrants must re-register all prior DMCA registrations online every three years.

Failure to re-register will strip a registrant of DMCA safe harbor protections. This is significant because the DMCA safe harbor affords registrants protections against copyright infringement claims asserted against third parties using registrants’ online services. Specifically, safe harbor enables a registrant to respond to copyright infringement takedown notices and thereby potentially shield them from potential secondary liability copyright infringement claims.

The Copyright Office has stated that migrating to online registration will streamline the process. Under the new rule, a registrant will be required to create an online registration account and identify its designated agent (who may be a third party) to receive DMCA takedown notices. Registrants will be required to provide the registrant’s full legal name, physical street address (not a P.O. box), telephone number, email, any alternate names (no d/b/a designations), and the contact information for the designated agent. A separate registration is required for every legal entity. The three-year renewal period resets any time a registrant amends a DMCA registration. And the Copyright Office has stated that it will send reminder notices to registrants in case they “accidentally forget to renew.”

Critics of the new rule contend that the penalty for failing to renew a registration is disproportionate. They argue it’s draconian to strip well-meaning registrants of their safe harbor protections if they inadvertently fail to renew their DMCA registration. For example, a registrant’s spam filters could block renewal notices from the Copyright Office. Without safe harbor, some registrants may face greater exposure to copyright infringement lawsuits. A better policy, critics contend, would be for the Copyright Office to notify registrants as proposed, but not to have non-renewal result in a complete forfeiture of DMCA safe harbor protections.

Key Takeaways:

Once the rule takes effect, all registrants should plan to re-register online their DMCA registrations and plan to renew them every three years. Failure to do so could result in the loss of safe harbor protections and increase their exposure to potential copyright infringement claims.

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