Tag: DMCA

Healthy Habits for You and Your Company: File Your Annual Reports, Replace Your Air Filters, and Renew Your DMCA Agent Registration

Businesses and people alike each have recurring routine tasks they need to perform to stay in good shape. Every year we prepare corporate filings, undergo our necessary medical examinations, and file our taxes.1 And starting in December 2019, companies began adding a new task to this checklist: renewing their DMCA Agent registration. Is your company prepared?

The DMCA can protect your website from its users’ copyright infringement.

Anyone with a website that allows users to post content to the site, even in a simple comment section, risks liability for copyright infringement based on those users’ posts. The Digital Millennium Copyright Act (“DMCA”) helps website owners mitigate that risk. If you operate a site and you comply with the safe harbor criteria, the DMCA shields you from copyright liability. The DMCA isn’t limited to internet service providers; its safe harbor offers websites an immensely valuable protection against costly and lengthy copyright infringement lawsuits. A registered Agent is only one of the many required elements needed for DMCA compliance, but it’s a crucial requirement that’s easy to overlook.

Congress passed the DMCA in 1998 to strike a balance between protecting the dynamic creativity of internet users and enforcing federal copyright protection. And regardless of whether you think Congress managed to find that balance, the DMCA sets the standard for statutory copyright enforcement on the internet—users ignore it at their peril. Websites that don’t comply with the DMCA must2 screen every comment and post submitted to the site by anyone for potential copyright violations, because the site can be held directly liable for any infringing submissions.3 On the other hand, DMCA compliance makes the website essentially immune from its users’ infringement.

Social media networks are the most obvious beneficiaries of DMCA safe harbor protection. Can you imagine if Facebook or Twitter needed to pre-screen every single post or tweet before it went live? In exchange for this safe harbor protection, the DMCA requires businesses to (among other things) create and enforce copyright takedown procedures for copyright holders to use when they spot potentially infringing content on the website.4

The Designated Agent is a key part of DMCA compliance.

Every organization that seeks safe harbor protection needs to designate an Agent as the organization’s point of contact for takedown notices. The designation is submitted to the U.S. Copyright Office, where it’s published on a searchable database. The designated Agent (which can be one person or an entire department) is then responsible for receiving all of the company’s DMCA takedown notices and then ensuring that they are acted upon.

Each Agent designation is effective for three years. Whenever the designated Agent’s information is updated with the Copyright Office, the three-year clock starts over. But if a three-year period ends without an update or renewal, the designation becomes invalid and the organization’s DMCA safe harbor protection ends with it.

You don’t want to forget about your renewal and you shouldn’t wait three years between checkups.

Fortunately, it’s pretty simple to figure out when your company’s Agent designation will expire. You can check the date that your organization’s Agent was last updated by searching the DMCA Designated Agent Directory and clicking on the name of the Service Provider.5 Add three years to the displayed effective date, and that’s your deadline.

You could, in theory, set a calendar reminder for every three years and forget about the DMCA in the interim, but we don’t recommend it. What if your Agent takes a leave of absence or leaves the company? What if your company reorganizes and the designated department is renamed (or gets lost in the transition)? We recommend that you check your Agent’s status at least once a year, just to be safe. It only takes a moment to do.

When in doubt, check with your attorneys to make sure that your rights are still being protected.

There’s much more to DMCA protection beyond Agent registration. Copyright law is constantly evolving—especially when it comes to the internet. DMCA safe harbor protection has many requirements beyond just having a designated Agent, and there’s a lot at risk if your company doesn’t qualify for the safe harbor. You can’t “undo” a gap in safe harbor protection, but you can close the door on future liability. That’s a door you want to keep shut. As your business’s online presence grows, so does its exposure to potential liability.

So when you’re checking your DMCA Agent registration, don’t just tick the box and wait until the next year. Take the time to consider your DMCA protocols. If your company’s DMCA compliance protocols aren’t up to date and compliant, your safe harbor is in jeopardy. What about the company’s future needs? If your company’s online presence will be growing, is your designated Agent capable of handling an increased caseload of takedown notices? This is an area where it’s better to be safe than sorry.

References:

1 This article is not meant to provide specific legal or medical advice. If you would like more specific legal advice, please contact an attorney. If you’re looking for specific medical advice, you’re reading the wrong article.
2 Or at least they really, really should.
3 Damages for copyright infringement are no joke. A successful plaintiff can receive their actual damages while also forcing the infringer to disgorge its profits from the infringement, or can alternatively obtain statutory damages of up to $150,000 per infringed work.
4 Many articles could be (and have been) written on abusive and overzealous DMCA takedown notices, especially since the development of automated takedown services that can act without human interaction. For brevity’s sake, this article won’t dive into those deep waters.
5 If you run a website, you should assume that you’re a service provider under the DMCA.

Copyright © 2020 Ryley Carlock & Applewhite. A Professional Association. All Rights Reserved.

For more on the Digital Millennium Copyright Act, see the National Law Review Intellectual Property law section.

The Digital Millennium Copyright Act: Scope, Reach, and Safe Harbors

With businesses engaging in increasingly more commerce over the internet, it is crucial to understand the consequences of displaying, using, and transferring another entity’s works online. Enter The Digital Millennium Copyright Act (DMCA) of 1998, which was signed into law by President Clinton to keep pace with the new realities of internet technology and commerce. The Act sought to protect intellectual property rights while simultaneously advancing the growth and development of e-commerce.

The DMCA is divided into five titles.

  • Title I implements the 1996 World Intellectual Property Organization (WIPO) treaties and makes it unlawful to manufacture or distribute products, services, or technologies that can be used to circumvent any technological measures intended to control access to copyrighted works, such as passwords or encryptions.
  • Title II contains various “safe harbors” for internet service providers (ISPs) that limit their liability for direct, contributory, or vicarious copyright infringement.
  • Title III creates an exemption from infringement liability for computer program copying conducted for purposes of repair, diagnosis, or troubleshooting.
  • Title IV contains miscellaneous provisions for items such as ephemeral recordings and the transfer of rights to motion pictures.
  • Title V creates a new form of protection for vessel hull designs, overturning the United States Supreme Court’s Bonito Boats decision, which denied copyright protection to such boat designs.

Under the DMCA, ISPs such as AT&T, Comcast Xfinity, and Verizon, cannot be held liable for copyright infringement when they neither know, nor have reason to know, that they are providing internet services to a website that is engaged in copyright infringement. The safe harbors include:

  • A “storage safe harbor” that protects an online service provider’s hosting and storing, and makes available infringing matter stored at a third-party user’s direction.
  • A “transmission safe harbor” that protects the transmitting or providing of a connection to infringing material, typically evoked by telecommunications companies.
  • A “caching safe harbor” that protects an ISP from liability for intermediate and temporary storage of a third-party’s infringing material on a system or network either controlled or operated by the service provider or for the service provider.
  • A safe harbor for search engine websites that protects the linking or referring of users to online third-party locations with infringing material. In order for providers to invoke this protection, internet providers must make an ongoing investigation of their users’ material, “take down” any infringing material once they are made aware of the infringement and inform any of their subscribers of the illegal consequences of making use of that infringing material through, for example, a set of terms and conditions that appear on the site.

In light of the safe harbors, it is important to note what the DMCA does not protect against – trademark infringement, unfair competition, rights of publicity, invasion of privacy, defamation, foreign law copyright claims, the ISP’s own, directly infringing activities, and any collusion between ISPs and third parties to create infringing material. ISPs must therefore continuously monitor third-party conduct in addition to its own conduct to prevent any activity that could lead to liability or loss of an affirmative defense to copyright infringement.

Two recent cases illustrate the complexities of the DMCA. In Disney Enterprises Inc. et al. v. VidAngel Inc., a federal appeals court affirmed an injunction that shut down VidAngel, a web service that lets users stream Hollywood films without seeing nudity or violence. VidAngel essentially purchased authorized copies of DVDs and Blu-ray discs, decrypted one disc of each film to create a digital, unauthorized copy of the work, removed objectionable violent or obscene content from its created copy, and streamed a filtered version of the copy to its customers. Finding that VidAngel infringed on the studios’ copyrights and violated the ban on circumvention of digital encryption measures (VidAngel bypassed locks on the physical discs in order to upload and stream the movies), the district court issued a preliminary injunction to stop the company from streaming the altered films.

On appeal, the Ninth Circuit Court of Appeals sided with the district court despite VidAngel’s arguments that its actions were lawful because, as purchasers of the DVDs and Blu-ray discs, it was authorized by the Studios to decrypt the technical protection mechanisms installed to view the discs’ contents. The law, however, distinguishes between those entities the content owner authorizes to circumvent the access controls and those the owner authorized to access the work. Falling into the latter category, VidAngel was not be able to claim exemption from copyright liability under DMCA’s safe harbor provisions. The takeaway for business owners is that the DMCA cannot be used as a shield by purchasers of copyrighted works who use them for unlawful copying and dissemination.

In another case, Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045 (9th Cir. 2017), a celebrity photography company that sells its photographs to celebrity magazines brought suit against LiveJournal for posting 20 of its copyrighted photographs online.

LiveJournal is an online platform where users create and run communities to post and comment on content. LiveJournal utilized the help of three unpaid administrative roles:

  1. “Moderators” who reviewed posts submitted by users to ensure compliance with company rules;
  2. “Maintainers” who reviewed and deleted posts and who had the ability to remove moderators; and
  3. “Owners” who removed maintainers and monitors.

The district court held that the DMCA’s safe harbor provision protected LiveJournal from liability since the photos were stored at the direction of its users and not LiveJournal itself. On appeal to the Ninth Circuit, however, using principles of the law of agency, the court ruled that the moderators might be “agents” of the websites they police and could lose DMCA safe harbor immunity if they permit infringing content to be posted. The court stated that moderators were provided with specific directions from LiveJournal, and LiveJournal employees substantively supervised, selected, and removed the moderators. On the other hand, moderators were also free to stop working for LiveJournal and volunteer their time elsewhere. Nonetheless, the court vacated the lower court’s order denying discovery of the moderators’ identities because it believed that the newfound, possible agency relationship impacted the decision to conceal the moderators’ identities.

The implications of the LiveJournal decision remain unclear. Some have criticized the holding as inconsistent with the DMCA framework because the statute was enacted to create a safe harbor that broadly protects service providers for material stored at the direction of its users, not literally for material stored directly by users themselves. But going forward, internet businesses and content providers who previously approved and monitored posts the way LiveJournal did may consider opting to forego such thorough oversight of its users’ posted content if they believe they would be unable to assert a safe harbor defense to copyright infringement.

COPYRIGHT © 2019, STARK & STARK

This post was written by Gene Markin of Stark & Stark Law Firm.

Read more news on the Digital Millennium Copyright Act on the National Law Review’s Intellectual Property page.