However, the law also has a series of formalities that any site wishing to take advantage of this protection, or “safe harbor”, has to take. This includes designating an agent to receive notice of copyright infringement, responding expeditiously to remove or disable access to allegedly infringing material when notified and, perhaps most tricky of all, registering your designated agent with the U.S. Copyright Office.

All of the other things you can do easily on your own without incurring any cost. However, registering with the U.S. Copyright Office does cost a small amount of money, namely $105 for a single site. Though it isn’t time consuming or difficult, it is a step that many webmasters overlook, even if it is one that could help them avoid a copyright lawsuit down the road.

Why Register a DMCA Agent?

The DMCA safe harbor provisions were designed to protect webmasters and hosts from actions taken by their users while also giving copyright holders a simple means to remove infringing content without going to court for every single infringement.

Under safe harbor, for example, YouTube nor its parent company Google are liable for copyright infringement when a user uploads an infringing video. As long as YouTube removes the videos when notified and agrees to take additional action against “repeat” infringers, YouTube is safe from copyright liability, as per the recent ruling in the Viacom v. Google case.

However, there are also formalities that sites have to comply with in order to qualify for this safe harbor protection and one of those is to register an agent to receive notices of copyright infringement from those who might wish to report such an infringement.

The problem is that very few sites take the time to do this.

Few, it seems, are aware of the requirements and others who are might be turned away by the price tag. However, if YouTube had not done so, its lawsuit with Viacom could have turned out very differently. In short, a few hundred spent on filing a registration with the USCO might have saved YouTube millions, possibly billions, in copyright damages.

How to Register a DMCA Agent

Designating a DMCA agent with the U.S. Copyright Office is actually very easy. All one has to do is download and fill in the Interim Designation of Agent to Receive Notification of Claimed Infringement form (Yes, that is the real title of the form), fill it in and send it off with either a $105 check or money order.

You can also register multiple domains with the same form. However, that does incur an additional cost as each group of ten costs another $30, meaning that for 2 to 11 domains the cost is $135 and for 12 to 21 domains the cost is $165.

Still, the process is much cheaper than doing a full new registration for each site you run.

The only other caveat to this registration process is that you must make sure that the information remains valid and active. As such, the postal address, email, fax and phone all need to be accurate. You can update the registration at any time by filing an amended registration, however, the cost is identical to a new registration.

All in all, the process should take only about five minutes and only cost, at the most, a few hundred dollars. But the headache it can save you down the road could be many fold what you spent on it.

Who Should Register a DMCA Agent?

This question is an impossible one to answer as every webmaster needs to make their own decision here. But the question to ask is simple:

How likely is it that a user of your site will upload copyright infringing material to your server?

For a blog that gets relatively few comments, it probably isn’t worthwhile. The comments can be easily moderated and suspicious material is usually removed long before anyone else is aware of the infringement. However, a larger forum where users upload a wide variety of content that is almost impossible to moderate may want to look at designating a DMCA agent.

These issues were, previously, largely academic as few copyright holders would actually sue over a technicality like a missing DMCA agent registration. However, recent events have made the questions much more important.

For example, Righthaven, the company that represents the Las Vegas Review-Journal and the Denver Post, has made it a habit of targeting forums and other sites that have not completed all of the formalities. These sites have routinely paid thousands to settle lawsuits that could have been avoided with a $105 registration.

In short though, every site needs to determine their own risk level and see if this filing a DMCA agent registration is a good step for them. However, I think far more sites would benefit from it than have done it.

Bottom Line

The good news in all of this is that, as active as Righthaven has been, lawsuits centering around this technicality are still very rare. Most copyright holders, myself included, are just happy to have the contact information on your site. In fact, very few even think to look on the USCO site for the relevant information, that is, unless it isn’t available elsewhere.

Since the DMCA also requires you to put the information your site, most webmasters are going to skip on looking at the USCO archives and just pull the information from your domain. Simply put, even if webmasters do their best to keep the USCO information up to date, which they should, there is a tremendous delay between when registrations are received and when they are posted, making the USCO database out of date in many situations.

Still, given the risk of high damages, even with a quick settlement, it makes sense to protect yourself and your site if you feel you might be at risk. It only take a few minutes to do and, if you need help with it, it is also a service that I provide as part of my consulting services.

However, there is little reason for that, unless you are a larger host and fear you may be getting a large number of complaints per month. Most sites can easily register themselves and be their own agent without having much additional workload to fear.

The companies added include Mahalo, Squidoo (special request), Zooomr, Break and about six other sites.

Also, I did a quick dead link check on the contact list and found that both Slashdot and Friendster were throwing back errors. I have updated those two links as well.

If you know of any sites, hosts or other OSPs that are not on this list but should be, please let me know. I definitely take requests and am still working with many other companies to get their information.

I’ll keep you posted as new updates roll in.

This is great news to hosts who, before 1998, were operating in a fog of legal uncertainty. Before the law was passed, there was a large debate about whether or not hosts could be sued for infringement, even if they were unaware of it taking place.

But while the legal clarity is great news for hosts, it is also great news for everyone else. Because, as the Web has become more interactive, nearly everyone with a Web site or blog is now a host as well.

The time has come for everyday citizens, not just traditional hosting companies, to look at designating a DMCA agent to better protect themselves against the actions of their readers and the copyright holders they might upset.

Why Designate An Agent

When you accept user generated content, you don’t know what you’re getting. You have no idea if that poem or photograph is really the property of the user that posted it or merely ripped off from another site. Since you don’t know what is potentially infringing and what isn’t, that means you can’t do anything to stop the infringement in advance other than set firm policies against posting copyrighted material.

This means, over time and with enough material, that it becomes almost certain that someone, at some point, has posted an infringing work to your site. However, without DMCA safe harbor protection, you could be held partially liable for that infringement. The risk goes up dramatically based upon the amount of work posted, the popularity of the site and the profit gained from it.

Though very few legal disputes from this type of activity rarely spread to the host, the cost and hassle of dealing with a copyright infringement suit makes even a slight risk unacceptable, especially for independent Webmasters on tight budgets.

Who Should Consider It

If you host content for your users, it is worth at least thinking about registering a DMCA agent for your site.

However, that content can include just about anything. If you accept comments on your site, allow others to post without any editorial control or run a forum that users post their own works, there’s a good chance that you could qualify for DMCA safe harbor protection.

Of course, the risk varies wildly from site to site. If you run a blog and receive mostly very short comments (IE: “Great job!”) the risk is a lot lower than for a forum that encourages users to post their poetry, short stories, essays or photographs. It’s important to be realistic about your risk before deciding to go ahead with registering a DMCA agent.

One important note about the DMCA is that, in order to qualify for safe harbor, the following must be true: “If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.”

This is something of a legal gray area that has not been fully explored, though likely will be a central argument of the Viacom/Youtube lawsuit.

The bottom line to it is that, depending on how you make money from your site and the role the user generated content plays in that, you may not qualify for DMCA safe harbor, even if you designate a DMCA agent. If you think this might apply to you, you probably should take a pass on it, at least until the rules are clarified.

Finally, it is important to remember that the DMCA is a United States law only applies to hosts residing within its borders. Even if you host your site with an American company, you, as a host independent from the company that runs your server, need to be an American citizen before you consider filing a DMCA agent.

Reasons Not to Register

Even if you do easily qualify for safe harbor protection, there are several reasons to consider not registering a DMCA agent:

1. Cost: If the risk is very low and the budget is tight, the $80 fee to file might seem a little steep.
2. Privacy Issues: Filing a DMCA agent requires giving up a great deal of information including email, address and phone number. Though this is only made available on the U.S. Copyright Office (USCO) Web Site, if you are designating yourself as the agent, which would be the most common person one designates in these situations, it is a lot of personal information to give away on the Web and, unlike whois information, it can not be made private.
3. Maintenance: It’s not enough to just send the information to the USCO and be done, it has to be maintained. As you move, change numbers or switch email addresses, you need to update your information at the USCO.

It’s very important to balance the insurance that such a registration provides with the risks, expenses and hassles that may come with it. Though there are ways to mitigate against all of these factors, they are important issues to consider when deciding whether or not to go ahead and designate your own DMCA Agent.

How to Designate An Agent

Once you’ve made the decision to designate your own DMCA agent, the process of doing so is very simple.

1. Print out the “Interim Designation of Agent to Receive Notification of Claimed Infringement” form (PDF).
2. Fill it out and mail it to the USCO with the $80 filing fee.
3. Later, sometimes months later even, the USCO will process the application, scan it as an image-only PDF and then upload it to their directory of agents.
4. The process is done.

Generally, the hardest part about designating an agent is determining who to designate and what information to use. To that end, there are several things you need to think about to make the designation more useful and protect against problems down the road.

• If Possible, Don’t Use Yourself: If you have a regular attorney, use him or her as your designated agent. They might charge a small fee, but it protects your privacy and gives you a buffer against angry copyright holders. Alternatively, consider using a copyright consultant, such as myself, as they are more familiar with the law and can serve many of the same functions, only turning cases with complicated legal issues over to attorneys.
• User Permanent Addresses: To avoid having to amend your registration, and thus pay the $80 filing fee a second time, use permanent addresses and phone numbers. Though the USCO will not accept P.O. Boxes (save where it is the only available address), some P.O. services will let you use suite numbers. Make sure that it’s a box that is checked regularly as a failure to respond negates the benefit of registering a DMCA agent.
• Upse Portable Phone Numbers: Considering using a cell phone or even a Skype In number as they are more portable and are changed less frequently. Once again, make sure that the number is one that will actually be answered when called. Finally, for the fax number, considering using a Fax-to-Email service to ensure that the number stays the same and can be checked from anywhere in the world.
• Include All Sites: If you run multiple sites, include them all on one registration to save money. There is no reason to file multiple registrations if you are the operator of the site and are using the same agent for all of them.

If you do all of those things, you can greatly reduce the hassles and expenses that come with registering a DMCA agent while still enjoying all of the benefits.

That alone should make it worth taking the few extra moment to ensure that it is done correctly, the first time.

Conclusions

The big question remains, who should file register a DMCA agent for their site? There is no cut and dry answer. The larger your site is and the more user-generated content you host, the more seriously you should be thinking about going through with it.

Not only does it guard against potential lawsuits by providing you safe harbor from liability, but it also provides protection against your host using the nuclear option and temporarily shutting down your site due to infringement by one of your users.

Still, most people will attempt to contact the owner of a site before running to their host. More important than having a designated DMCA agent is being available, at least informally, to answer any complaints of copyright abuse. Having a clear abuse policy and an easy-to-find method of contact will do as much, if not more, to mitigate against shut downs and lawsuits.

Despite that, as copyright issues become more common on the Web, sites that deal with large amounts of user-generated content, including popular blogs that get a large number of comments and active forums, should probably take a lengthy look at going through the motions to designate a DMCA agent.

A little time and a little money can guard against much larger headaches and expenses down the road. Many, including some that never would have considered it before, might find the process more than worthwhile.

As for me, I most likely will not be designating an agent at this time for Plagiarism Today. The nature and quantity of the comments on this site simply does not warrant it right now. I am, however, seriously considering this for other sites that I run.

I strongly encourage others in similar positions to do the same.