The Digital Millennium Copyright Act (DMCA) is a multi-faceted law that covers a variety of subjects including the circumvention of digital rights management tools to the removal of copyright management information. However, the best known and most-discussed is the DMCA safe harbors, which gave rise to the notice-and-takedown system.
The system has received its share of controversy over allegations that it is ripe for abuse. However, for artists and creators it remains one of the most powerful tools for fighting infringement in both a time and cost-effective manner.
Still, it’s important to remember the section’s original purpose: To both give rightsholders a tool to fight infringement but to also protect hosts and online service providers from the actions of their customers.
Without the DMCA, a site could, theoretically, be held liable for any infringing content uploaded to it by its users. This would make sites like YouTube and Facebook untenable and there would simply be too much legal risk as it would be impossible for them to ensure that user uploads don’t infringe at least someone’s copyright.
But the DMCA isn’t just for large sites, it is for all sites that host content uploaded by users. This includes forums, blogs with comment sections and much more.
In short, if your site accepts submissions from users at all, you will want to look at designating or obtain a DMCA agent. It may save you a lot of money and a lot of headache down the road.
Understanding the DMCA
As someone that hosts content provided by third parties, the DMCA is there to protect you. However, it’s not protection that is automatic, you have obligations under the law and those obligations include:
- You must not have actual knowledge that the material or is infringing.
You must remove or disable access to material claimed to be infringing when you receive a proper notification of copyright infringement.
- You must designate an agent to receive such notifications of claimed copyright infringement.
- You must register that agent with the United States Copyright Office
It’s the last two elements that are the most important in this situation. Though most sites and forums would be happy to remove any infringing material, whether discovered by themselves or reported by a rightsholder, without a DMCA agent, they could still be held liable for the infringement.
It may feel like a technicality (and in many ways it is) but a failure to designate a DMCA agent could make you liable for all infringements committed by your users. This is true even if you were completely unaware that an infringement was taking place.
To be clear, none of this protects you against content that you uploaded yourself or that was uploaded by those working for your site or your company. It doesn’t guard you against infringements that you do directly, only infringements from your users.
Still, if you host content from users, this something to take seriously. Though this might seem like a very minor issue, especially if you operate a small website, it can become very significant very fast. You might believe that the odds of a problem are incredibly slim. However, those odds are going up every day and that’s due to a relatively new breed of copyright monitoring services that aggressively seeking out infringements and pursuing them for money.
The Change in the Wind
The DMCA took effect in 1998 and the DMCA agent requirement has been on the books ever since then. However, for most of the law’s 22-year history it’s mostly been larger sites and companies that have bothered to have DMCA agents.
Companies like GoDaddy, YouTube, Facebook, Twitter, Medium, etc. would be untenable without one and the headache of setting up an agent was much less than the legal risk of not having one.
However, things have been slowly changing over the last few years and much of it is due to organizations such as ImageRights, Pixsy and PicRights, which are aggressively scanning the web for infringements of photographic works they represent and then sending settlement demand letters to sites hosting unlicensed versions of the images.
If a user uploads such an image to your website and you do not have a DMCA agent, it will be you that’s handed those settlement demands and paying the licensing or settlement fee will often cost you between $500 and $750. Not paying it risks a lawsuit, which is much more expensive, even if you manage to win.
To be clear, this process of sending settlement demands to suspected infringers is decades old. However, it’s finally taking place at a large enough scale that more small websites are being bit. While there is no similar process for text works, at least not since Righthaven folded, it’s only a matter of time before it is attempted again.
Creators and rightsholders see financial opportunity here. While I’m sympathetic with the plight of fighting significant and ongoing infringement, targeting those that aren’t infringers, were unaware of the infringement and are only possible secondary infringers due to a technicality seems like it would do more harm than good.
Nonetheless, that’s the reality smaller websites now face but, fortunately, it’s a problem that’s easy to defend against.
How to Designate a DMCA Agent
Fortunately, the process for designating a DMCA agent is (now) both inexpensive and easy. Best of all, you have two options for how you do it:
- Designate yourself or an employee as your DMCA agent.
- Hire someone else to be your DMCA agent.
If you wish to register yourself as a DMCA agent, the cost is only $6 for three years and you can do so easily on the U.S. Copyright Office website. Simply click the “Login/Register” link on that page, sign up for a new account and then go through the steps. The form for registering an agent is remarkably simple and only takes a few minutes, including payment.
The downside to this is that you are required to list the name, address, phone number and email of the agent. Depending on your situation, that may be private information that you do not wish to share. Though there are ways to keep your personal information private, it may be a bit of a headache for some.
In that case, you may wish to hire someone to serve as your DMCA agent on your behalf. This person doesn’t have to be an employee but must receive notices on your behalf, process them and forward completed ones on to you for removal of content.
There are several services on the web that provide this, including the one that I provide through my consulting services. Generally, they will keep your contact information private and handle incoming DMCA notices on your behalf. You will still have to handle the removal of allegedly infringing material, but this approach both complies with the law and keeps your information private.
That said, the downside of this approach is that it is more expensive, usually involving an annual fee, and it’s important to get a DMCA agent that you trust. If your agent received a notice and did not act on it, you could still be held liable.
Still, regardless of the approach, an ounce of prevention is worth many pounds of cure. With more and more legal threats and settlement demands flying around, it’s important that you do not get in the crossfire.
Obviously, this isn’t a deep dive into all of the issues surrounding DMCA safe harbor. I highly encourage anyone who thinks they might benefit from a DMCA agent to read my DMCA Agent Services page at CopyByte, in particular the FAQs, and to do additional research elsewhere.
In the end, if your site hosts content uploaded by users, it’s crucial that you designate a DMCA agent. Whether it is yourself, me or someone else, the main thing is to be protected.
There is simply no sense in being held liable for infringements that you were unaware of simply because you didn’t fill out all the correct paperwork. One way or another, take care of that paperwork today to protect yourself, your site and your business.
It’s not just the smart thing to do, it’s the right thing to do.