Website Owners Beware — Ignoring This Rule Could Leave You on the Hook for Someone Else’s Copyright Infringement

shutterstock_72516676Every company whose website or other online service contains any third-party content needs to be aware of a new regulation issued by the U.S. Copyright Office. The new rule, which takes effect December 1, 2016, alters the hoops through which website owners and other internet service providers must jump in order to avoid being held liable for infringing user-generated content on their servers.

Although the Digital Millennium Copyright Act (DMCA) is designed to protect website operators from such liability, its “safe harbor” is only available to those who take certain steps ahead of time. Specifically, among other things, website owners must:

  1. Designate a contact person who will receive requests to take down allegedly infringing content;
  2. List that person’s contact information on the website itself; and
  3. File the designee’s information with the Copyright Office.

Many website owners have overlooked this last step, which leaves them vulnerable to copyright infringement liability. In a July 2014 opinion in the case Oppenheimer v. AllVoices, Inc., a federal judge reiterated that website owners remain on the hook for third-party content on their sites, unless and until they comply with these agent designation requirements.

Even those websites that are currently in compliance, however, must now revisit the issue, because the Copyright Office’s new regulation changes the process for designating a contact person with the Office. The current process is straightforward; it requires a one-time submission of a paper form and payment of a $105 fee.

The new regulation (found at 37 C.F.R. § 201.38) makes a number of changes to this process. For example, designations must now be made electronically and the fee will fall to a mere $6 per designation. Most importantly, designations are no longer a one-time task; existing designations will expire at the end of 2017 and new designations will be valid for only three years. It will now be incumbent on service providers to calendar renewal deadlines to make sure their designations do not lapse.

The threat from which these designations help shield service providers is real. Every year, more copyright owners have been searching for infringing copies of their works online and sending “gotcha” letters demanding exorbitant damages from the websites hosting them. Because the Copyright Act provides for an award of attorneys’ fees on top of automatic money damages without having to prove that the host even knew of, much less intended to infringe, the work, these owners—often derided as “copyright trolls”—have raked in large sums from unsuspecting businesses across the country.

Therefore, if you’ve never taken the step of designating a contact person with the Copyright Office, don’t delay. If you have filed a designation, now is the time to revisit that step and to set up a process for keeping the necessary forms current.

The Technology & IP Practice Group at Warner Norcross & Judd LLP also circulated this post as an e-blast. Click here to subscribe to those alerts.