The Digital Millennium Copyright Act [“DMCA”] provides online operators with tremendous protection from copyright infringement claims based on user-generated content. An online operator can only gain these “safe harbor” protections if the operator complies with particular requirements in the legislation. The compliance process raises a number of questions. For example, a common one for companies based outside of the United States is can you have a foreign DMCA agent?
What is DMCA? The DMCA is a federal law of the United States. The law does not apply to companies based outside the United States. However, international companies that desire to tap the lucrative U.S. consumer market are subject to the law, which makes DMCA compliance a necessity. Part of that compliance requires the designation of a DMCA agent. The specific language of the law 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.
As you can see, there is no language restricting the location of the DMCA agent. However, this is a bit misleading. A quick review of the online database of DMCA agents maintained by the United States Copyright Office reveals nearly every agent is located in the country. The primary reason for this is international companies need a local resource to both act as the agent and be knowledgeable in handling copyright claims processed under the law of the United States. DMCA compliance requires taking certain actions on a strict timeline. Failure to understand the complexities of the law can lead to violations of the compliance requirements, which leads to liability. With copyright infringement damage claims being as high as $150,000 per violation, large damage claims are a serious concern.
Can you have a foreign DMCA agent? Yes, but it is not advised given the low cost of using an independent agent. There are services such as this one offering agents for $6 a month.
Richard A. Chapo, Esq.
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