Tuesday, February 12, 2013

Does Our Website Need a DMCA Agent?

Dear Rich: We have a website for families to upload pictures and events dealing with heritage and ancestry. We have a new investor who wants us to designate an agent to register with the Copyright Office for DMCA notices. We've been in business for three years without any problems. Is there a benefit to registering an agent? Your investor is probably concerned about liability resulting from user generated content. The Digital Millenium Copyright Act shields your site from liability if you follow certain requirements and meet certain qualifications (including designating an agent for receipt of notices). Assuming that your website qualifies as an online service provider (it probably does), the protection applies only for user generated content – that is the material is made available by a person other than your company and it's posted without your modification. Also your company can’t profit directly from the uploaded material -- so the safe harbor won't apply if your company makes money selling reproductions or gets a payment for downloads of user content. Although we think that designating an agent is a good idea, on a practical level, it’s been our experience that DMCA notices are rarely sent to the designated agent but instead are sent to email addresses designated for such purposes by the company. So we'd recommend that you post a link on the bottom of the homepage for such purposes. If your company complies with the takedown request, the matter is usually closed.
Designating an agent. You can use the Copyright Office form to designate an agent and you can read more about agents at the Copyright Office site. For more on the DMCA, check out this Nolo article, this Citizen Media article, and this previous DMCA post. .

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