Failure to Register a DMCA Designated Agent Torpedoes Safe Harbor Protection

Author: Margaret A. Esquenet

The Digital Millennium Copyright Act (DMCA) provides safe harbor protection from copyright infringement liability for internet service providers (ISP) for content posted by users if the ISP complies with the prerequisites set forth in 17 U.S.C. § 512(c)(2). One of those requirements is identifying and registering a designated agent to receive DMCA notices. Specifically, an ISP must designate an agent, post on its website contact information for the agent so that copyright owners can contact the ISP, and register the agent’s name address, phone number, and email address with the Copyright Office. In Oppenheimer v. Allvoices, Inc., 2014 3:14-cv-00499-LB (N.D. Cal., June 10, 2014), photographer Oppenheimer sued ISP Allvoices for copyright infringement with respect to materials posted by Allvoices users. Allvoices moved to dismiss, arguing, among other things, that it was immune from suit because the content was generated by users and thus Allvoices was immune from liability under the DMCA. In response, Oppenheimer argued that Allvocies could not claim DMCA safe harbor protection for any materials posted before it registered an agent with the Copyright Office, as required by the Act. Allvoices argued that it registered an agent two months after the initial infringing post of Oppenheimer’s materials and so its designation should be sufficient to encompass the initial posts. The Court was not persuaded by Allvoices’ attempt to make its agent registration retroactive, holding that Allvoices could not invoke the section 512 safe harbor with respect to any infringing conduct occurring before its agent was registered with the Copyright Office.

To find out if your website has registered a designated agent, search here:  http://www.copyright.gov/onlinesp/list/a_agents.html

Registering a designated agent with the Copyright Office is important to maintain safe harbor protection. The form, which must be completed online, printed, and mailed in, can be found here http://www.copyright.gov/onlinesp/agent.pdf. The current basic fee is $105.


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