The Digital Millennium Copyright Act [“DMCA”] is a godsend for websites that allow users to upload content. The Act gives such sites protection from copyright infringement lawsuits claiming monetary damages. However, a site must follow certain rules to gain the immunity, and one involves designating a DMCA agent.
- Copyright owner discovers unauthorized content on a website uploaded by a user,
- Copyright owner files a “takedown” notice with the DMCA agent for the site,
- Site takes down the offending content and contacts the user who posted it, and
- The user has the option of contesting the takedown.
Again, a significant simplification of the process. Still, it highlights the role the DMCA agent plays in the process. Many website owners mistakenly believe the agent can be any person willing to list their name on the site and in a filing with the Copyright Office. This assumption is incorrect and, potentially, a disastrous interpretation.
The first thing to keep in mind is the identity of the DMCA agent is part of a public record. You file the name and address of the agent with the Copyright Office at the Library of Congress. The Copyright Office will then list the information on their website.
If a website focusses on a controversial subject, finding an agent willing to be the face of the copyright element of the site can be difficult. Most agents do not want to deal with the hate mail.
Then we have the issue of a permanent record being created online. Nothing is ever deleted from the Internet. Imagine agreeing to serve as an agent for a site such as AshleyMadison.com where married people can arrange affairs. How do you think future potential employers might view your association with the site when they have a background check performed? More than a few will automatically reject you as a candidate for the position in question.
Then we have the issue of processing a takedown notice sent to the site. The DMCA agent receives the notice. The agent must then review the notice and determine whether it meets the requirements of the DMCA. In most cases, this means the agent must have a legal background or at least be very comfortable with the Act.
Assuming the takedown notice is acceptable, the agent and site must next take immediate steps to get the DMCA process moving. Failure to meet the strict deadlines detailed in the law can result in the termination of the immunity provided by the law, which more or less defeats the purpose of attempting to comply with the law.
Can you handle the DMCA agent process yourself or train someone to do it? Absolutely. Is it a smart choice? Most people would argue the best course of action is to use a legal professional.
Richard A. Chapo, Esq.