Maintaining Your Safe Harbor Under the DMCA

The Digital Millennium Copyright Act (“DMCA”) provides safe harbors from copyright infringement liability for online service providers. In order to qualify for safe harbor protection, certain kinds of service providers—for example, those that allow users to post or store material on their systems, and search engines, directories, and other information location tools— must designate an agent to receive notifications of claimed copyright infringement. To designate an agent, a service provider must do two things: (1) make certain contact information for the agent available to the public on its website; and (2) provide the same information to the Copyright Office, which maintains a centralized online directory of designated agent contact information for public use. The service provider must also ensure that this information is up to date.

For an example as to how to (1) make contact information for the agent that you designate to receive notifications of claimed copyright infringement available to the public on your website, see the following:

Notice for making claims of infringement.-Written notification must be submitted to the following Designated Agent:

Name of Agent Designated to Receive Notification of Claimed Infringement:

Eric S. Wachspress

Full Address of Designated Agent to Which Notification Should be Sent:

Eric Wachspress

Attorney-at-Law

417 S. Jefferson St., #304

Chicago, Illinois 60607 USA

Telephone: 773.934.5855

Facsimile: 312.583.1083

markscounsel@gmail.com

In addition, if you allow third-parties to post their content on your website and server which content may contain material that they do not have frights in, i.e., the right to publish said material on your site, you should have a “REPEAT INFRINGER POLICY” and post that Policy on your website as well. See the following for an example of such a Policy:

REPEAT INFRINGER POLICY

We will terminate access to our website to repeat copyright infringers.

As set forth here, you may not post any content (a song, a story, an article, a drawing, a photograph, etc.) owned by someone else in a manner that violates another’s copyright. When you do so, the copyright owner(s) of that content may notify us that you don’t have their permission to post their content on the site, and have violated their copyright. If we get repeated notices that you have posted others’ copyrighted content on our site without permission, we may terminate your access to our site.

We have a system for keeping track of repeat violators of copyright, and determining when to terminate your access to our website:

Generally, when content is removed that you posted because the copyright owner of that content sent us a complete legal request to do so, we will have a record of that request.

If we receive repeated requests to take down content that you have posted on our site due to an alleged copyright violation, your access to our site will be terminated. However, if you submit a counter-notification in response to the copyright owner’s notice within two weeks after receiving a Notice of Infringement or that counter-notice is not answered by the copyright owner or the copyright owner retracts his or her notice [or if the dispute leads to legal proceedings that result in a court finding that you have not infringed the owner’s copyright], we will not take any action against you for violation of copyright or rescind any action that we have taken unless and until the content is found to be infringing.


In December 2016, the Office introduced an online registration system and electronically generated directory to replace the Office’s old paper-based system and directory. Accordingly, the Office no longer accepts paper designations. To designate an agent, a service provider must register with and use the Office’s online system. All relevant sites should be registered with the Copyright Office, i.e., all sites that allow users to post materials thereon!

Transition period: Any service provider that has designated an agent with the Office prior to December 1, 2016, in order to maintain an active designation with the Office, must submit a new designation electronically using the online registration system by December 31, 2017. Any designation not made through the online registration system will expire and become invalid after December 31, 2017. Until then, the Copyright Office will maintain two directories of designated agents: the directory consisting of paper designations made pursuant to the Office’s prior interim regulations which were in effect between November 3, 1998 and November 30, 2016 (the “old directory”), and the directory consisting of designations made electronically through the online registration system (the “new directory”). During the transition period, a compliant designation in either the old directory or the new directory will satisfy the service provider’s obligation under section 512(c)(2) to designate an agent with the Copyright Office. During the transition period, to search for a service provider’s most up-to-date designation, begin by using the new directory. The old directory should only be consulted if a service provider has not yet designated an agent in the new directory.

See https://www.copyright.gov/dmca-directory/

You Must Designate An Agent with the Copyright Office Electronically As Provided Above & On Your Website As Well.

About ERIC WACHSPRESS

The material on this website is for informational purposes only. It should not be considered legal advice and is not intended to create an attorney-client relationship. If you have questions regarding any material presented herein, we recommend that you consult an attorney. This web site and information presented herein were designed in accordance with Illinois law. Any content in conflict with the laws or ethical code of attorney conduct of any other jurisdiction is unintentional and void. I am a Chicago attorney practicing in the areas of trademark, copyright and information technology law as well as general corporate law. Formerly a trademark examining attorney with the United States Patent and Trademark Office, I have been in private practice since 1987 representing clients in a wide variety of industries, including the consumer products, financial services, information technology and entertainment industries. You can contact me at markscounsel@gmail.com, by phone at 773.934.5855 or by mail at 417 S. Jefferson St., #304, Chicago, IL 60607 USA
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