The Digital Millennium Copyright Act of 1998 provides a safe harbor for sites from claims related to copyright infringement for materials uploaded by users. Sites must follow certain procedures to gain this immunity. Registering an agent with the Copyright Office is one such requirement, but many ask when the filing becomes effective?
The DMCA agent is the person designated to receive, evaluate and process takedown notices on behalf of the website in question. The takedown notice is a legal filing in which a copyright owner tells a site that a user of the site has uploaded some of the copyright holders protected work.
The DMCA Agent then evaluates the copyright claim to make sure it is legally sufficient. Such an evaluation requires legal training, which is why most sites us an attorney as the agent. Regardless, the agent makes the decision and then carries out the step-by-step procedure called for in the DMCA law.
The Copyright Office at the Library of Congress handles and indexes all DMCA agent filings. There is one lady at the office who processes them all. Given the millions of websites online, you can probably imagine how far she gets behind on the DMCA filings. Frankly, I’m shocked she is only a month or two behind instead of years.
The problem for a site owner is what do you do for those months if you get a complaint and are sued for a copyright violation? Your DMCA agent will not appear in the online database maintained by the Copyright Office, so it creates a conundrum of sorts.
The truth of the matter is there is no legal standard per se on this issue. A technical reading of the law shows one only needs to “give notice” of an agent to the Copyright Office, not actually have their filing appear online. Given this, I am comfortable arguing the initial filing date of the designation is sufficient. Of course, make sure you have evidence of the filing.
One area where I see sites get into trouble is with the agent they use for their site. You can pick anyone you like. However, you need to understand the agent must have the legal training necessary to evaluate takedown notices. If the agent gets it wrong, the immunity provisions of the DMCA can be lost and subject the site to lawsuits, attorney’s fees and significant judgments. Make sure your agent knows what they are doing when it comes to the DMCA.
Need a DMCA agent? Contact me today.
Richard A. Chapo, Esq.