Selecting an Agent Taking Advantage of DMCA Internet Service Provider Liability Limitations

Who should our Agent or Agents be? The Agent is someone who may be contacted by email or regular mail, phone or fax machine at any hour of the day or night, and be expected to respond expeditiously to a notice of alleged infringement that conforms to the requirements set out in the Digital Millennium Copyright Act, Title II.

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 use our online form to evaluate whether the component 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 component institution. Each institution could have one person or a team of people, as it desires. Further, we don't necessarily need 15 official Agents. Based on these criteria and the likely frequency with which any component instition will receive notices under this provision of the law, it might be more efficient to have only one or a limited number of official agents for all System components who act somewhat like a help desk, receiving notices and refering them to the appropriate person or team of persons on each campus for response.

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 if we are to take advantage of the liability limitations.

Whether component institutions wish to designate official Agents, or agree on one or more official Agents for all components, each will still need to identify their employees who can do, either individually or as a team, all of the activities described generally above, and more fully in Complying with the Digital Millennium Copyright Act. Thus, a component institution may designate an official Agent and/or may designate a team of individuals who will perform all Agent functions.

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