Pepper Law Warns of Need to Register DMCA Agents

Jul 14, 2014 3:00 PM PST

NEW YORK — Adult website operators seeking to operate under DMCA “safe harbor” exemptions need to ensure they are following the law, in the wake of a recent court decision.

According to attorney Dan Pepper (www.informationlaw.com), if a company hasn’t registered an agent designated to receive DMCA notices with the U.S. Copyright Office, that company is liable for copyright infringement resulting from content posted by its website’s users.

Writing in his Technology Law blog, Pepper explained that the Digital Millennium Copyright Act (DMCA) offers safe harbors that protect Internet service providers, including website operators, from liability for copyright infringing activities by users of their sites and services; but in order to obtain these protections, the service providers and sites must adhere to the “notice and takedown” procedures outlined in 17 U.S.C. § 512(c)(2), among other specific statutory requirements.

These “notice and takedown” procedures provide copyright holders with a mechanism for eliminating infringing content from sites and services not authorized to display this material.

Calling it an “oft-forgotten critical step” that has proven fatal for at least one service provider, Pepper highlights the statute’s requirements for identifying and registering a designated agent to receive DMCA notices.

“Specifically, an ISP must designate an agent, post on its website contact information for the agent so that copyright owners can contact the ISP, and register the agent’s name address, phone number, and e-mail address with the Copyright Office,” Pepper notes, citing the recent Oppenheimer v. Allvoices, Inc., decision by the U.S. District Court for the Northern District of California.

In this case, the court found that DMCA only provides a “safe harbor” when an agent is designated to receive notifications of claimed infringement. The court also invalidated Allvoices’ argument that it had complied with the DMCA by designating a registered agent after being notified via other channels that allegedly infringing content appeared on its site.

“[The court] 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,” Pepper explains. “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.”

This decision should serve as a wakeup call to adult website operators that believed they could take a responsive approach to DMCA compliance, only “bothering” when they are “caught,” rather than the proactive pre-registration required by the Act.

Pepper advises site owners to search the Copyright Office’s website (www.copyright.gov) to see if their site has registered a designated agent.

“If it’s not there, make sure you designate one at the Copyright Office and make that information available to the public on your website,” Pepper concludes. “As the Oppenheimer case revealed, the consequences [of not doing so] can be devastating.”

For more information, visit www.informationlaw.com.

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