In 1998, Congress passed the Digital Millennium Copyright Act ("DMCA"). One of the most controversial and litigated elements of the DMCA is its “safe harbor’ protections. Copyright holders tend to hate it, while website operators that allow posting of third party content view it as essential to survival of their business model. DMCA safe harbor is becoming an essential defensive tool in the arsenal of website operators.

1. Walters Law Group operates the WebLaw Network™
which is a coalition of services, websites, mobile
applications, and legal devices offered to our clients and to
the general public, addressing the needs of specific
industries. For more information, please visit the WebLaw
Network. Our firm’s extensive legal contacts enable us to
assist clients on a worldwide basis.

2.  Introduction:
A DMCA Agent should be appointed by any website that permits third
party users to upload any sort of content. This includes “tube” sites, dating
sites, advertising networks, hosts, forums, cam sites, etc. As DMCA
lawyers, we are often asked to assist clients with the process of designating
a DMCA Agent with the U.S. Copyright Office, and assisting with the
process of establishing DMCA “safe harbor” protection.

3.  What is the DMCA?
In 1998, Congress passed the Digital Millennium Copyright Act
("DMCA"). One of the most controversial and litigated elements of the
DMCA is its “safe harbor’ protections. Copyright holders tend to hate it,
while website operators that allow posting of third party content view it as
essential to survival of their business model. DMCA safe harbor is
becoming an essential defensive tool in the arsenal of website operators.

4.  Which Websites Qualify for DMCA Safe
Harbor?
Many website operators do not realize that the type of service they provide
affects their obligations and potential protections under the DMCA. The
DMCA defines a “service provider” as any entity offering transmission,
routing, or providing connections for digital online communications or
other online networking services. Boiled down, essentially any entity that
allows users to post content on its web servers. Many online businesses can
gain legal protection by designating aDMCA Agent.

5.  How Does a Website Establish DMCA Safe Harbor
Protection?
Website can only claim DMCA Agent protection if it takes certain steps:
1 – Identify and Designate a DMCA Agent
2 – Accommodate technical measures to protect copyrightedworks
3 – Adopt and Implement a Repeat Infringer Policy (“RIP”)
First, the OSP must designate the name and contact information of an
agent who will be responsible for receiving any infringement notices from
copyright owners (i.e., a “DMCA Agent.”) Once aDMCA Agent is hired,
the OSP must file a public notice of designation of agent with the U.S.
Copyright Office, along with the required filing fee.

6. Next, the OSP must adopt an RIP that provides for terminating the
accounts of users who repeatedly infringe on another’s copyright under
“appropriate circumstances.” The OSP must inform its customers of the
RIP and “reasonably implement” it as well. While no court has
definitively described how a legally-compliant RIP should look, all have
agreed that even-handed implementation of the RIP is important.

7.  Conclusion:
If a DMCA Agent is not properly designated, safe harbor can be lost.
This can result in a judgment against the website operator for money
damages. A competent DMCA Law can help with filing a proper
Designation of Agent, and establishing the other elements of DMCA safe
harbor.

8. Lawrence G. Walters, Esq
Walters Law Group
195 W. Pine Ave.
Longwood, FL 32750-4104
Voice: 407.975.9150
Toll Free: 800.530.8137
Fax: 407.774.6151
Website: www.firstamendment.com