New Copyright Office Mandatory DMCA Renewal Threatens Internet Companies

Last week, the U.S. Copyright Office announced new changes that will go into effect on December 1, 2016, and could put all website owners at risk of losing their copyright protection under §512(c) safe harbor rules.[1] Under the Digital Millennium Copyright Act (“DMCA”), the U.S. Copyright Office creates a safe harbor for service providers to guard against potential infringing content, as long as the site has registered a DMCA agent with the Copyright Office.[2]  Since the passing of the DMCA in 1998, the Copyright Office has implemented the use of “interim” agents to receive copyright takedown notices.[3] In order to qualify for the 17 U.S.C. §512(c) safe harbors, websites and online service providers must take part in the agent designation process.[4] The changes enforced under this new rule is significant for everyone who maintains a website.

Under the new regulations, service providers can efficiently designate agents with the Copyright Office through the development of an electronic filing system.[5] As a result of implementing a more efficient electronic process, the Copyright Office has been able to reduce the fee from over $105 to as low as $6 per designation for registering an agent under the DMCA.[6] On the surface, these cost-effective changes sound appealing, however digging a little deeper, it’s clear that it comes with irreparable consequences, potentially resulting in the loss of DMCA safe harbor protections altogether.

Why the downside? The Copyright Office is implementing a mandatory renewal issue, requiring sites to re-register and renew their DMCA agent every three years.[7] Therefore, the Copyright Office also placed a deadline of December 31, 2017 for any service provider that has previously designated an agent with the Office to submit a new designation electronically through the online registration system.[8] This is significant as failing to re-register an agent in a timely manner could result in service providers who previously registered to lose their DMCA safe harbor protection.

However, this renewal process is not necessarily news. In 2011, the Copyright Office sent out a Notice of Proposed Rulemaking (NPRM), requiring filers to re-register their agent designations periodically in order to keep the agent designation database updated.[9]  The Copyright Office maintains that these new changes are necessary, because despite the DMCA requiring service providers to update their designations, it was determined that 22 percent of existing designations were for non-operational service providers, while another 65 percent of service providers had outdated or inaccurate information with regard to their designations.[10] That said, many opposed the mandatory renewal proposal in 2011, including the Electronic Frontier Foundation (“EFF”), who sought to encourage the Copyright Office to consider the significant consequences imposed on legitimate service providers.[11] Five years later and EFF’s objection to the proposal for mandatory renewal is still unanswered.[12] Instead, the Copyright Office has increased their efforts to enforce these rules.

The implications of the new rule are severe and internet companies should proceed with caution and be sure to timely file re-registered designations with the Copyright Office before they lose them altogether!  

 

[1] Copyright Office Announces Electronic System for Designating Agents under DMCA, United States Copyright Office, Issue No. 640 (Oct. 31, 2016), http://www.copyright.gov/newsnet/2016/640.html.

[2] Designation of Agent to Receive Notification of Claimed Infringement, Federal Register, Vol.81, No. 101 2-3, 33154, (May 25, 2016), https://www.federalregister.gov/documents/2016/05/25/2016-12227/designat....

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] United States Copyright Office, supra, note 1.

[9] Eric Goldman, Warning: Copyright Office Resurrects Troubling Plan to Strip Websites of 512 Safe Harbor, Technology & Marketing Law Blog, (May 25, 2016), http://blog.ericgoldman.org/archives/2016/05/warning-copyright-office-re....

[10] United States Copyright Office, supra, note 1.

[11] Id.

[12] Id.