The Digital Millennium Copyright Act of 1998 is a boon for online businesses. The law contains copyright safe harbor protections that prevent a copyright owner from suing a site for copyright infringement based on content uploaded by an independent user of the website, to wit, user-generated content. Sites can only take advantage of the DMCA safe harbor if they comply with the requirements of the DMCA, a painful lesson one online business recently learned.
The DMCA requires online operators to jump through several hoops to avoid copyright infringement liability for user-generated content. One step is the designation of an agent to receive takedown notices from copyright owners.
The DMCA agent must be an individual familiar with the compliance requirements of the law. DMCAAgentService.com can supply you with an agent. Once selected, the business lists the agent in the DMCA policy published on the website in question and registered with the Copyright Office. The Copyright Office then lists this person in a database available online to the public.
The selection and designation of the agent are one of the more straightforward requirements of the DMCA to meet. Still, simplicity does not mean you can skip the step. Allvoices, Inc. recently discovered this painful lesson.
No Agent – No Protection
Allvoices, Inc. runs an online community platform. Users are encouraged to participate in the community by uploading content to the site, including graphics, text, and audio recordings. The company launched the website in 2008. However, it failed to register a DMCA Agent with the Copyright Office until March of 2011.
David Oppenheimer is a professional photographer. He discovered that a number of his photos were uploaded by users to the Allvoices website in February 2011 and sent the company a cease and desist letter. Allvoices failed to remove the photographs immediately. Oppenheimer brought suit alleging AllVoices violated the copyright law by failing to remove the content and by failing to terminate members who repeatedly posted copyrighted material without permission.
Allvoices argued the safe harbor provisions of the DMCA protected it from the claim. The company further argued it did not matter that the registration with the Copyright Office occurred after Oppenheimer complained about the infringement. Allvoices claim was dubious at best given the wording found on the topic in the language of the DMCA. The specific provision reads:
17 USC 512(c)
(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.
(17 U.S. Code § 512(c)(2)(A) [Emphasis Added.])
The text of the law is clear. For Allvoices to successfully claim the safe harbor protection, it must have registered its agent with the Copyright Office before the Oppenheimer complaint came in. Since this did not occur, there should be no safe harbor protection for Allvoices.
The court agreed with this analysis. It found Allvoices failed to meet the requirements of the DMCA and ruled in favor of Oppenheimer. Perhaps the easiest compliance step required under the DMCA ended up being the downfall of Allvoices.
There are aspects of DMCA compliance that can be complex. Designating and registering a DMCA agent is not one of them. Contact me today if you need a DMCA agent and to make sure your efforts to comply with the DMCA are sufficient to protect you from copyright infringement claims.
Richard A. Chapo, Esq.
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