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Have you met the deadline for keeping your digital safe-harbor protection?

December 28, 2017
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Online service providers should confirm they have taken required steps to maintain the safe harbor protection that shields them from liability from certain copyright infringement claims.

The Digital Millennium Copyright Act, or DMCA, provides a safe harbor to online service providers that limits liability from copyright infringement claims based on user-generated content transmitted, cached, stored, referred, or linked on the service provider’s website, app, or other online service. To qualify for safe harbor protection, among other required steps, service providers must register their DMCA agent information with the U.S. Copyright Office. Service providers that registered their DMCA agent prior to Dec. 1, 2016, must re-register using the Copyright Office’s new online system no later than Dec. 31, 2017.

If a service provider’s designation lapses, it can be reactivated, but the service provider may be subject to liability for hosting, linking to, or storing infringing content during the lapsed period. Registrations are no longer perpetual and must be renewed every three years, so service providers should mark their calendars with their renewal date to avoid the loss of safe harbor protection.

Service providers can access the online registration system. The Copyright Office charges $6 per registration.

Online service providers that have not yet taken advantage of safe harbor protection should consider doing so to limit their potential liability for copyright infringement. Generally, entities that operate websites allowing users to post, store, or transmit material are considered “online service providers” for purposes of DMCA safe harbor protection.

To qualify for safe harbor protection, an online service provider must:

  • Designate an agent to receive notifications of claimed copyright infringement
  • Register the agent’s information with the Copyright Office
  • Make contact information for the agent available on the service provider’s website
  • Write, adopt and post on its website a “repeat infringer policy”

The service provider must then reasonably implement its repeat infringer policy, and manage the DMCA’s notice-and-take-down process through which third parties can request that infringing material be removed. Many online service providers include this information within the “Terms of Service” of their websites.

Online service providers should consult with an experienced attorney to ensure that they have complied with the DMCA requirements in a manner that qualifies them for DMCA safe harbor protection.

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