Re: DMCA Title II

At 3:55 PM -0500 2/14/06, Elizabeth T Russell wrote:
>Many writings on the DMCA service provider safe harbors state rather broadly
>that to qualify for "DMCA protection" a service provider must designate an
>agent and register with the Copyright Office. Clearly, doing so is necessary
>to qualify under section 512(c). And it makes good sense even if you're
>attempting to qualify under under one of the other three safe harbors -- but
>is it really required for the other three? Reference to designating an agent
>appears exclusively in 512 (c); and the interim regs (37 CFR 201.38) are
>couched exclusively in terms of complying with 512 (c). No mention of 512
>(a), (b) or (d). Can anyone point to something more conclusive than "it's
>just inferred?"

As I read the safe harbor provisions, the designated agent is only required pursuant to 512(c) to avoid liability for infringing material stored by the service provider. A service provider that doesn't store information for its users doesn't need to register an agent.

>And another thing. Does 512(d) apply to anyone who slaps a hyperlink on
>their website?

I'm not sure exactly what your question is. Sec. 512(d) explicitly extends conditional immunity to a service provider against claims "by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including ... hypertext link." But that doesn't necessarily mean that the failure to satisfy all of the conditions in 512(d)(1)-(3) makes the service provider liable for linking to infringing material. The service provider might lose the safe harbor for having actual knowledge, contra (d)(1), but there probably isn't secondary liability unless there is also a financial benefit and right to control, contra (d)(2).

What I hadn't noticed until you asked is that 512(d)(3) also conditions the safe harbor for information location tools on compliance with the take-down provisions of 512(c) upon "notification of claimed infringement as described in subsection [512](c)(3)," which in turn requires "a written communication provided to the designated agent." But 512(d) doesn't seem to require the service provider to register a designated agent. So -- does anybody know whether 512(d) has been construed to imply a requirement for a designated agent, or allow the notice to be delivered to someone else?

John Noble Received on Wed Feb 15 2006 - 21:25:00 GMT