Complying with the DMCA: Selecting an agent

Who should your agent or agents be? The agent is contacted by email at any hour of the day or night, and is expected to respond quickly to a notice of alleged infringement that conforms to the requirements set out in the Digital Millennium Copyright Act, Title II (DMCA).

Upon receipt of a notice alleging copyright infringement, and as more fully set out in Complying with the Digital Millennium Copyright Act, the Agent will have to:

1. have access to the relevant facts (see Complying with the Digital Millennium Copyright Act) about the allegedly infringing site and its owner to be able to evaluate whether the institution hosting the allegedly infringing page or site is acting as an Internet Service Provider with little or no involvement with the content of the allegedly infringing page or site, or is itself the content provider;
2. evaluate an incoming notice for sufficiency under the statute and, in certain circumstances, take steps to obtain additional information from the copyright owner;
3. in some cases, evaluate the likelihood that a fair use claim may be a valid defense to infringement;
4. evaluate counter-notices for sufficiency and, in the absence of a court order prohibiting reposting repost a work if the counter-notice is sufficient; and
5. have the technical expertise and authority to locate allegedly infringing pages or sites, identify their owners, disable access and re-enable access to such sites.

All of these activities do not have to be performed by one individual at each institution. Each institution could have one person or a team of people, as it desires.

As an example, each campus could identify at least its technical person(s) who are capable of and authorized to locate sites, identify owners, and disable and re-enable access in an appropriate case. If these persons are also the persons the institution wishes to authorize to take the actions described in numbers 1, 2, 3 and 4 above, then the institution need only identify the technical team, as it were, as its contacts for handling notices referred from the official agent. Other institutions may wish to designate other administrators to handle the activities described in 1, 2, 3 and 4, requiring the technical person to do only those activities described in number 5. Keep in mind that people go on vacation, are out of the office, etc. and that these notices require prompt response to take advantage of the liability limitations.