Online Service Providers: Register Your DMCA Agent By December 31 or Lose Your Safe Harbor

natucket shipwreck

Pictured above: OSP Losing DMCA Safe Harbor Protection Off Nantucket, William Bradford, ca. 1860, courtesy Met Museum of Art.

At the end of last year, the U.S. Copyright Office implemented a new online registration system for DMCA agent designations which replaces paper designations with online registration. At the end of this year, agent designations made under the old system will no longer be valid.

This affects online service providers, which includes any company that allows users to post or store material on the company’s systems, such as customer comments and reviews. Under the DMCA, online service providers may avoid liability for copyright infringement if they follow the DMCA’s safe harbor provisions.

Accordingly, all online service providers seeking to retain the benefits of the safe harbor protections of the DMCA must make new agent designations by December 31, 2017.

You can create a registered agent account here on the Copyright Office site.

If we can help, please reach out to one of our attorneys.


Amicus Brief by Walter Dellinger in Masterpiece Cakeshop

Amicus Brief by Walter Dellinger, signed by among others, Floyd Abrams and Kathleen Sullivan, in favor of the couple.

Background here.


Whether a Requirement to Bake a Wedding Cake Should be Viewed as a ‘Speech Compulsion’ – amicus brief in Masterpiece Cakeshop (Gay wedding cake case)

Amicus brief by Professors Eugene Volokh and Dale Carpenter in Masterpiece Cakeshop (the gay wedding cake case). Question presented:

Whether a requirement to bake a wedding cake should be viewed as a “speech compulsion” akin to a requirement to write, sing, paint, or photograph.


Recent Trademark-Related Tweets


Text of SDNY Decision in GRINCH Parody Suit


I apologize for being a little tardy in my blogging. From September: SDNY holds that WHO’S HOLIDAY, a play picking up the story of Cindy-Lou Who from “The Grinch Who Stole Christmas, as an unhappy adult living in a trailer, is a lawful parody.

Favorite passage:

fahoo fores dahoo dores


Guinness Book of World Records v Scholastic: Is The Cover of a Book ‘Packaging’ or ‘Product’ for Trade Dress Purposes?

guiness scholastic covers

This should be interesting. Guinness Book of World Records sues Scholastic alleging trade dress infringement of its covers (See covers above).

Guinness argues that the cover ‘is in essence the “packaging” of GWR’s product . . . thus, GWR is not required to demonstrate the existence of secondary meaning.’ (see pages 5-6). The memo of law (below) provides no citation on that one. Packaging trade dress can be inherently distinctive while product configurations must show secondary meaning to be protectable.


Ticketmaster v Ticket Bots: Bots Chew Gum and Keep Talking During Performances


Ticketmaster v Prestige Entertainment, et. al., CD Cal, complaint filed yesterday:

Ticketmaster sells tickets online using its website and mobile apps. Its terms of use prohibits bots (software scripts designed to run tasks ‘at a far higher rate than would be possible for a human alone.’ It uses various methods to prohibit the use of bots, such as CAPTCHA. Defendants are alleged to ‘have been using bots to access and navigate through Ticketmaster’s website and mobile app, and through such unlawful use, improperly produce tickets for the purpose of reselling them at a substantial profit.” (para 5).

Defendants were alleged to have purchased thirty to forty percent of all tickets available through Ticketmaster for Hamilton and a majority of all Ticketmaster tickets for the recent Mayweather fight. Id.

Defendants had recently agreed with the NY AG to stop using bots. Id.

By being able to complete transactions more quickly than humans, and by buying tickets in excess of contractual ticket limits, bots deprive humans of the opportunity top purchase tickets. Bots circumvent copy protection systems. Bots make unauthorized copies of pages from the site and app. Bots make the Ticketmaster site run more slowly. Bots intentionally interfere with contract. Bots induce fraud. Bots drink too much beer, then talk loudly about how spoiled the players are.


Text of Complaint in The Honest Company v Honest Herbal


The Honest Company, founded by Jessica Alba, sues re use of HONEST HERBAL for various products.


Fish vs Fish

Fish IP Law firm seeks declaratory judgment against Fish and Richardson.


Cepeda v Hadid and IMG re Instagram Use of Photo


Photographer sues model, Gigi Hadid, for uploading copyrighted photo to her Instagram page. As an aside, note alteration of ADIDAS to HADID.

Case was filed in ED of Virginia. Plaintiff’s lawyer is from there, and that’s pretty much it.