Websites’ Safe Harbor Copyright Notice Designation

Websites safe harbor takedown requirements by the Copyright Office is soon to undergo changes.  According to the Copyright Office, it is the responsibility of a website owner or online service entity to make it easy for a copyright holder to contact the website regarding the possibility of content infringement.  The agent designation requirement[1] process form, pursuant to 17 U.S.C. Limitation of Liability Act is what is being addressed by a new NPRM.[2]  The proposed rule seeks to establish the requirement that the 17 U.S.C. 512(c) designation be filed every three years. Title II of the Digital Millennium Copyright Act houses in Section 512 the Online Copyright Infringement Limited Liability Act—otherwise known as the Safe Harbor Provision.   The 512 (c) (3) designation requirement provision would earmark who is responsible for serving as website agent to receive takedown notices. 

In order for a website or online service providers to benefit from the “safe harbor” provision, the website or online service entity must have a DMCA[3] authorized agent who will receive copyright takedown notices.  These filed designations are recorded data by the Library of Congress.  The critical change is that a website 512(c)(3) agent designation must be renewed every three years.  Failure to file could jeopardize and online entity’s safe harbor protection under the DMCA copyright takedown provision. Arguably, the increased frequency for filing the designation could provide the Library of Congress a means by which to refresh its database of websites.

Website operators and online service providers benefit from the “safe harbor” protection with limitations on their liability as a result of infringing activities of other entities.  The requirements set under Section 512 of the Limitation of Liability Act establish procedures for ‘notice’ and ‘takedown’ of copyright infringing content and establishes steps to challenge improper takedown.  These procedures and their intended liability reducing benefit have reduced the risk of copyright liability as a result of third-party displaying infringing user content on a website.  It immunizes a website from someone else’s copyright infringing content being posted on their website.  The issue of concern is that with the three-year frequency requirement, the likelihood of a website operator missing its deadline to file is higher and increases the risk of liability in the long run. 

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[1] 17 USC 512 “safe harbors”

[2] Notice of Proposed Rulemaking

[3] Digital Millennium Copyright Act 

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