On June 30, 2015, a New York court provided a good excuse for anyone with an interactive website to double-check that its copyright agent designations with the U.S. Copyright Office are complete and accurate. Don’t know what this means? Keep reading.

Under the Digital Millennium Copyright Act (“DMCA”), online service providers are afforded a safe harbor from contributory copyright infringement -- but only when they complete a series of specific formalities. Most websites that allow users to post content (including reviews, comments, as well as photos, videos and other materials) are eligible for a defense against claims of copyright infringement for the user-posted content. See 17 U.S.C. 512(c). To take advantage of the safe harbor, the website operator must (1) register an agent with the Copyright Office to receive notices of copyright infringement; (2) provide contact information for the agent on its website; and (3) promptly remove content that is allegedly infringing upon receipt of a proper DMCA notice.

In BWP Media USA, Inc. v. Hollywood Fan Sites LLC, 14-CV-121 (JPO) (SDNY June 30, 2015), the defendants operated various celebrity gossip websites. They had not properly designated a copyright agent with the Copyright Office before the alleged infringement began. The plaintiff owned copyrights to various photos that were posted by users of the defendants’ websites without authorization. The website operators tried to claim safe harbor immunity because their websites identified an agent to receive copyright claims and outlined the DMCA process. However, one defendant had not registered an agent with the Copyright Office until 18 months after the infringement began. Another defendant only identified the parent company as the agent, and not its subsidiaries and affiliates (which actually operated the website), as the Copyright Office form requires.

The court concluded that the websites could be liable for contributory copyright infringement for the photos that were posted by users before the websites properly registered an agent with the Copyright Office. The fact that the websites tried to comply with the law by identifying an agent on their website and registering the parent company with the Copyright Office was not enough.

The DMCA safe harbor provides a powerful shield if it is properly used. Check to see whether your company’s agent designation is complete and accurate HERE.