Providers of online services (including websites and apps that enable users to post content) must register an agent with the United States Copyright Office by December 31, 2017 using the Office’s new online system, which went into effect in December 2016. Those who don’t register risk losing valuable liability protections under Section 512 of the Digital Millennial Copyright Act (DMCA). Service providers can click here to begin the registration process and the Copyright Office has created a number of videos to guide users.
Service providers with agent information on file under the old, paper system must re-submit the information through the online portal. The agent information must be updated as it changes and the registration must be renewed or updated at least once every three years. There also is a new fee structure: $6 registration fee per designation of an agent.
As background, Section 512 of the DMCA provides a safe harbor from copyright infringement liability to online service providers, primarily to protect online services from situations involving copyright infringement arising from content posted by third party users. In order to qualify, a service provider must designate an agent to receive take-down notices from copyright holders who believe their rights have been infringed. In addition to posting the agent information online, the service provider is required to provide its agent’s information to the Copyright Office. Previously, agent information was provided to the Copyright Office on a paper form that was later scanned and posted online by the staff, but concerns arose regarding cost and whether this information was being properly updated.
While the Copyright Office reported that comments it received during the rulemaking proceeding demonstrated “widespread support for the creation of an electronic registration system,” that is only part of the story.
There are many benefits to the Copyright Office’s new online system (and some of the changes may be long overdue). As noted by Brandon Huffman, filing online will generally be easier and cheaper. However, some have criticized the new rules because of requirements that: (i) all service providers who previously registered through the paper system re-register via the new online system and (ii) all registrations must be renewed every three years (unless they were updated during that three-year period). A currently compliant service provider that does nothing risks losing its existing safe harbor protections. So, for example, Elliot Harmon of the Electronic Frontier Foundation noted that large online service providers, such as YouTube and Facebook, will not have a problem complying, but “small companies, small nonprofits, and activist groups” with few resources are more likely to be at risk of losing their safe labor protections for non-compliance. Eric Goldman has been particularly critical of these requirements, going so far as to write that “This story has been like watching a train wreck in slow motion.” Professor Goldman suggests that the Copyright Office’s efforts to inform service providers about lapsed registrations could inadvertently help litigious copyright owners:
To ‘help’ service providers, the Copyright Office says they can reinstate lapsed registrations by paying the fee. But the Copyright Office will publicly display the periods when the registration lapsed, giving a useful roadmap to copyright owners who can easily just sue for the lapsed time period. So the public disclosure of the lapsed period will make a super ‘SUE HERE’ flag for litigious copyright owners, helpfully provided as a public “service” by the Copyright Office.
In the end, all online service providers need to take notice – and action.