A quick read of the DMCA designated agent requirements as detailed in the law may lead you to believe this is a task anyone can undertake. This assumption would be incorrect, one many website operators come to regret financially.
So, what are the minimum requirements for a person to act as DMCA agent for a website? The requirements are laughable. The two primary ones appear to be able to breath and read. Okay, I lie. The DMCA doesn’t actually require the agent to be breathing, but this gives you an idea of how few requirements there are. The key provision is section 512(c)(2), which reads:
(2) Designated agent. – The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.
[Courtesy of Copyright.gov – Emphasis Added]
The simplicity of the legal provision quoted above is nothing less than a brutal trap for the unwary. What is at stake? The immunity from copyright lawsuits a website gains by complying with the DMCA. When the trap is sprung, you waive the immunity and can be sued for copyright infringement even though it was a third party who posted the offending content to your site.
So, just what is this trap? The language in the Act fails to detail the fact the DMCA agent must also understand the law in detail and be able to apply it correctly. For example, the person must be able to answer these questions.
- What is a takedown notice?
- What are the six specific elements that must be present in a DMCA takedown notice for it to be deemed valid?
- If deemed valid, how long after the service of a DMCA takedown notice do you have to remove the content from the site?
- Should the content be deleted outright or should another step be taken?
- Do you need to contact the person that posted the allegedly offending material?
- If so, what do you need to tell them?
- What do you do if that person responds to your message?
- Do you need to communicate anything to the original complaining party?
- Does the content you took down ever go back up on the site and, if so, under what conditions?
- What is a repeat infringer policy? Do you have one?
Getting the answer wrong to just one of these questions can result in the waiver of the immunity provided by the DMCA. If this occurs, it is time to break out the checkbook. You’ll be spending $50,000 to $100,000 in legal fees to defend the action plus whatever additional amounts are required to settle the case or pay a judgment.
Use an attorney familiar with the DMCA as your agent. I say this as a lawyer who does not provide this service to clients in 49 out of the 50 states. If you are in California, I’ll be happy to act as your agent. If not, find a copyright lawyer in your area. You will pay a bit up front, but save tens or hundreds of thousands of dollars on the back end. You will also be able to sleep at night.
The qualifications required to be a DMCA agent are minimal. Don’t be fooled. This simplicity doesn’t mean anyone can act as an agent. The agent must be versed in the DMCA and follow the relevant compliance steps. Fail in this regard and you open yourself up to a stressful and expensive legal conflict. Contact me today if you need a DMCA agent.
Richard A. Chapo, Esq.
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