Designating Your Own DMCA Agent

The DMCA provides Web hosts a great deal of protection when it comes to copyright infringement taking place on their servers. If hosts met the requirements and take a few simple steps, they can not be held liable for any infringement perpetrated by their users.

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.