New Jersey Law Journal December 26, 2016

Copyright Law Change Endangers Internet Sites

By Jonathan Bick Bick is of counsel at Brach Eichler in Roseland. He is also an adjunct professor at Pace and Rutgers low schools and the author of "101 Things You Need to Know Moto Internet Law" (Random House 2000)

Copyright infringement does not require intent to be liable for statutory damages up to $150,000 per infringement. Prior to 1998 Internet service providers were plagued with infringement litigation related to their Internet site content. The Digital Millennium Copyright Act (DMCA) remedied this difficulty by providing copyright infringement immunity to Internet service providers who registered as "interim" agents with the Copyright Office. On Dec. 1 the DMCA interim registration program was replaced. Failure to implement the replacement program will expose Internet site owners and providers to pre-1998 legal difficulties.

The DMCA is a United States copyright hire that implements two 1996 treaties 'of the World intellectual Property Organization (WIP0). The DMCA's principal benefit to Internet service providers is the exemption from-direct and indirect liability for copyright infringement claims related to Internet Site content.

Internet site providers who want to protect themselves against claims of copyright infringement must participate in a new DMCA Internet registration system, even if they are currently immune from infringement liability' as interim DMCA agents. Consistent with its predecessor program, the new DMCA registration system protects entities that allow users to post or store material on their systems and search engines, directories, and other information location tools. Consequently, most Internet service 'providers and most sites are' eligible for immunity from infringement liability.

The replacement Internet DMCA agent appointment program is similar to the "interim” agent program. In particular, to qualify for safe harbor protection (under section 512 of the DMCA) from copyright infringement, an Internet service provider Must appoint an agent to receive "take-down" notice's: As in the case Of the prior program, a service provider will avoid liability for infringing content if it removes infringing content in a timely manner.

To avail itself of the DMCA protection, a first-time Internet service provider must access the Copyright Internet site (www.copyright.gov); select the "Directory" option; then, select the "Login /Register" option; then select the "Register here option.” The service provider must supply information about its representative who will serve as the primary point of contact for purposes of communications with the Copyright 'Office, including: " login ID, password, first name, last name; position/title, organization, address, phone number and email. After using the "Next” key, similar information must be provided for another representative who can be contacted by the Copyright Office in the event that the primary, contact cannot be reached. Finally, the service provider hits the "Finish” key.

The DMCA registration system then sends an e-mail to the primary contact with information as to how to create and activate an account with the U.S. Copyright Office's DMCA Designated. Agent Directory. Once an account is activated, the designated agent registration process can be completed with an Internet payment to the Copyright Office. This process is much more complicated and time consuming than in the past. Prior to the new system, the designation of a DMCA agent would be achieved by completing a single page on the Copyright Office Internet site which required less than half the information of the new procedure, physically signing it and mailing it with a $135 check to the Register of Copyrights: Upon receipt, the Copyright Office would scan a copy of the document and publish it on the Copyright Office's website. The prior DMCA registration system did not require renewal.

The new DMCA agent designation system replaces the paper element of the process, with an Internet online process. It also replaces the onetime fee with $6 fee due every three years. Additionally, the new system requires Internet 'service providers to renew their agent appointments every three years to maintain their protection under the DMCA.

According to the Copyright Office: A service provider's designation will expire and become invalid three years after it is registered with the Office, unless the service provider renews, such designation by, either amending into correct or update all relevant information or resubmitting it without amendment to confirm the designation's continued accuracy. Either amending or resubmitting a designation through the online system begins a new three-year period before such designation must be renewed, from the date of renewal.

The new system requires Internet service providers to execute new registrations by Dee. 31, 20I7, or lose their DMCA immunity. Until Dec. 31, 2017, the execution of a paper registration will, continue to satisfy the service provider's obligations under the DMCA. After Dec. 31, 2017, all paper designation will expire and become invalid, which could result in the service provider losing the section 512 safe harbor protections.

The new DMCA agent appointment process allows a service provider’s representative to be outside counsel: This will allow Internet service providers to appoint their copyright attorneys as their agents ' to receive notices. Such an appointment may improve responses to time sensitive take-down obligations and thereby avoid liability for infringement.

However, the new registration procedure does not change other DMCA related requirements necessary for Internet service providers to be exempt from direct and indirect liability for copyright infringement claims related to Internet site content. In particular, the Online Copyright Infringement Liability Limitation Apt, passed into law in 1998 as part of the DMCA, provides safe harbor Protection to Internet service providers if they complied with certain technical measures such as providing notice to their Internet users that the Internet site provider was taking advantage of the DMCA safe harbor and removing infringing content form the Internet service provider’s Internet site. Section 512(c) also requires that the Internet service provider neither received a financial benefit directly attributable to the infringing activity; nor were aware of the presence of infringing material.

Section 512(c) indicates that the DMCA notice must include the fact that the Internet service provider has registered with the Copyright Office for DMCA purposes and provide an appropriate contact and an appropriate set of instructions to facilitate a takedown of infringing content from the Internet service provider’s site. Typically, such notices are part of an Internet site's terms of use agreement.

Usually the DMCA notice includes several items. These items include: the identification of acceptable ways to communicate with the Internet service provided (i.e., fax, entail, registered mail); the identification of the person requesting the takedown; the identification of the infringing content (what it is and where it can be found on the Internet net service provider's site); who the infringing content is infringing; and 'an attestation that the person demanding the takedown is authorized to do so.