DMCA Safe Harbor Basics

December 1, 2017  If your website or mobile app invites user-generated content or otherwise allow users to post information, the Digital Millennium Copyright Act (“DMCA”) offers a relatively painless mechanism to avoid liability for copyright infringement arising from such content, including immunity from all monetary damages and most forms of equitable relief.

NOTE: IF YOU PREVIOUSLY REGISTERED USING THE OLD “HARD COPY” PROCESS, YOU MUST RE-REGISTER

ONLINE BY 12/31/17 TO MAINTAIN YOUR PROTECTION.

The DMCA, which became effective almost two decades ago, updated federal copyright law to address developments in digital technology (inter alia, that series of tubes known as the Internet). In an effort to encourage online service providers to remove infringing content, the DMCA established four distinct “safe harbors” from copyright infringement liability, each with its own criteria. This post focuses on the best known safe harbor, which addresses the online hosting and storage of information by service providers at the direction of users or, in plain English, user generated content.

“Service provider” is defined in the Act as a “provider of online services or network access” and is broadly interpreted to include operators of websites, mobile applications and other digital services. So, yes, you’re likely a service provider under the DMCA.

To qualify for the safe harbor immunity, a service provider must meet a number of requirements, including:

• It must have adopted, implemented and notified subscribers and account holders of a policy that provides for termination of repeat infringers.

• It must accommodate and not interfere with technical measures used by copyright owners to identify or protect copyrighted works.

• It must designate an agent to receive notice of claimed infringement (commonly referred to as a “takedown notice”) and register its agent with the Copyright Office. Please note that the Copyright Office now requires online registration and former “hard copy” registrations will be invalid after December 31, 2017.

• It must post on its service, including its website, a notice containing the designated agent’s contact information and other information mandated by the Registrar of Copyrights.

• It must comply with the takedown notice/counter notice process outlined in the DMCA, including expeditiously disabling or removing allegedly infringing content after receipt of a proper takedown notice.

For helpful guidance, you can review the Copyright Office’s DMCA Designated Agent Directory FAQs or watch the video tutorials.

For information on additional safe harbor requirements, or if you’d like assistance registering an agent or crafting takedown policies or notices, please contact us.