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DMCA stands for the Digital Millennium Copyright Act (“DMCA”). One of the most important features of the DMCA is that it provides a “safe harbor” for website owners against being sued for copyright violations when users, commenters, and posters upload copyrighted material onto a website. For example, assume you run a website and one of your users uploads a copyrighted photograph without the permission/authorization of the copyright holder. Without the DMCA safe harbor, your website might be held liable for contributory copyright infringement.
To have the benefit of the DMCA safe harbor, a website must have a DMCA registered agent. Why? The registered agent is the person/company to whom a copyright holder can send correspondence concerning the existence of copyrighted material on a website. Most importantly, it is to the DMCA registered agent that a DMCA “takedown notice” is sent. As the name suggests, a takedown notice is a notice of copyright infringement and demands that the infringing material/content be removed (taken down). If you need legal assistance with setting up your DMCA registered agent, contact us here at Revision Legal. Call us at 231-714-0100. We are top-tier internet and social media influence attorneys specializing in internet law. Here is a brief explanation of what is needed to set up your DMCA registered agent.
With Whom is a DMCA Agent Registered?
DMCA registered agents are registered with the U.S. Copyright Office. The registration is done electronically and involves providing the name of a person, company, or law firm to whom copyright-related correspondence and complaints will be sent. Registration must be renewed every three years. Electronic registration is a new requirement that began in early 2022. Failure to register a DMCA agent means that a website does not have safe harbor protection under the DMCA.
What is the Process?
The process involves finding a DMCA registered agent. As noted, this can be an individual, a company, or a law firm. Then, an account must be opened with the U.S. Copyright Office. Once opened, the website owner can then register the relevant contact information for their designated DMCA registered agent. It is possible to designate yourself as the DMCA registered agent, but the better practice is to have a third party be the registered agent. This protects your privacy since DMCA registered agent information is publicly available. Further, your DMCA will be properly focused on the task and copyright notices and complaints are not as likely to “get lost” among the rest of the mail. Contact information includes physical and email addresses. If a website chooses to be its own registered agent, a corporate office can be listed instead of an individual name. An example might be Legal @ website.com and Legal Department, Name of Company, and street address.
The designated DMCA registered agent must also be “linked” to your website’s name and all possible alternatives and linked websites. That is, copyright holders will be using a searchable database to find your DMCA registered agent. Thus, your agent must be “linked” in the database to all the possible search combinations where applicable.
Contact Revision Legal
For more information or if you have questions about the DMCA or about protecting your trademarks, copyrights, and other intellectual property, contact the internet lawyers at Revision Legal at 231-714-0100.
When a copyright holder sends a properly formatted DMCA takedown notice to a website’s registered agent, the law requires the website to respond “expeditiously” — generally understood to mean within a few business days — by removing or disabling access to the allegedly infringing content. A compliant takedown notice under 17 U.S.C. § 512(c)(3) must identify the copyrighted work claimed to be infringed, identify the infringing material with sufficient specificity for the service provider to locate it, provide contact information for the complaining party, include a statement that the complaining party has a good faith belief that the use is unauthorized, and include a statement under penalty of perjury that the information in the notice is accurate and that the complaining party is authorized to act on behalf of the copyright owner.
A website that follows these procedures — removing the content and notifying the user — retains its safe harbor and cannot be held liable for the infringement. This is true even if the notice later turns out to be flawed or even fraudulent, as long as the website did not have actual knowledge that the notice was defective. DMCA registered agents should have a documented internal process for receiving, logging, evaluating, and acting on takedown notices, because this paper trail is essential if the website is ever challenged on whether it timely and properly responded.
Users whose content is removed in response to a DMCA takedown have the right to submit a counter-notification under 17 U.S.C. § 512(g). A counter-notification must identify the removed material, include a statement under penalty of perjury that the user believes the material was removed as a result of mistake or misidentification, and consent to the jurisdiction of federal court. Upon receipt of a proper counter-notification, the service provider must notify the original complainant. If the complainant does not file a federal lawsuit within 10 to 14 business days, the service provider must restore the removed content.
This counter-notification process creates legal exposure for the website. If a user files a counter-notification claiming their content was wrongfully removed and the website restores the content, the original copyright claimant may turn its attention to the website — particularly if the website is deemed to have gone beyond the safe harbor by exercising editorial judgment about the content. DMCA registered agents must understand the counter-notification process and be prepared to advise the website operator on appropriate responses. This is another reason why having experienced internet law counsel available when operating as or selecting a DMCA registered agent is essential.
The DMCA’s safe harbor provisions include a remedy for abuse: under 17 U.S.C. § 512(f), a party who knowingly materially misrepresents that material is infringing — or, in the counter-notification context, that material was removed by mistake — is liable to any party injured by the misrepresentation. This provision allows websites and users who have been targeted by bad-faith DMCA takedowns to recover damages, including attorney’s fees.
Section 512(f) claims are difficult to win because the misrepresentation must be knowing and material — a good-faith but incorrect belief that content is infringing generally does not satisfy the standard. However, Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016), established that copyright holders must consider fair use before sending a takedown notice, and failure to do so can constitute a knowing misrepresentation if the fair use argument was objectively meritorious. Websites that receive DMCA notices from aggressive or serial copyright claimants should have counsel evaluate whether the notices meet the statutory requirements and whether a Section 512(f) response is warranted.
DMCA compliance is a reactive strategy — it protects a website from liability for infringement it did not cause. Proactive copyright protection requires additional steps:
Every website that allows user uploads — whether comments, photos, videos, or any other content — needs a properly registered DMCA agent and a documented takedown process. Revision Legal’s internet law attorneys handle DMCA agent registration, takedown notice drafting and evaluation, counter-notification responses, and Section 512(f) claims. We also handle website copyright registration and infringement enforcement. Call us at 231-714-0100 or visit our contact page to set up your DMCA compliance program before a copyright dispute forces the issue.
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