How $105 Can Help You Avoid a Copyright Lawsuit
If you run a forum site or any other type of site where users can upload content and are in the U.S., you are probably already somewhat aware of the legal protections provided by the Digital Millennium Copyright Act. Specifically, the law protects webmasters and site owners whose users upload infringing materials.
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.
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.