Copyright Office Pushing Dangerous And Ridiculous Plan To Strip Websites Of DMCA Safe Harbors

from the don't-let-this-happen dept

Back at the end of May the Copyright Office put out a Notice of Proposed Rulemaking (NPRM) concerning some changes to the DMCA agent registration process. As we’ve noted for years, technically to be covered by the important DMCA safe harbors you first have to register with the Copyright Office (and we’ve repeatedly recommended that you do so, if you have any kind of site, even a personal one, where people may post potentially infringing material). Not registering won’t automatically make you liable, but it can make the legal process a lot more problematic for you if someone posts infringing material on your website. Most people who commented on this new NPRM were pleasantly surprised to see that the key part of the proposal was reducing the fee for registering an agent from $105 (or more) down to just $6. The Copyright Office says it can do this thanks to the much easier efficiency of electronic filing. That’s great.

But hidden in the details is something not great at all. First spotted by the ever eagle-eyed Eric Goldman, part of this proposal was actually reviving a very bad proposal from 2011 to also force sites to renew their DMCA agent every 3 years. This is dumb for so many reasons — and Eric, along with the EFF, told the Copyright Office this back when the proposal first came out — and… the Copyright Office never responded (though it still says it’s coming…). And here’s the really nasty bit: the Copyright Office insists that any comments being made over this NPRM can only be about the change in the fee, and not the serial renewals, even though it also notes (in a footnote, of course) that this new lower fee is dependent on it becoming a recurring fee thanks to the renewals.

On top of that, it seems clear that those of us who have already paid lots of money to register will still have our registrations thrown out, and we’ll have to start paying recurring fees. That seems doubly ridiculous. We’ve already paid quite a lot, and I don’t see how the Copyright Office should be able to throw out our existing agent claim, nor why we should suddenly have to remember to go back and renew our registration every three years. Remember, this is the same Copyright Office that seems to have no interest at all in making copyright holders renew their registrations, as such a thing would be too burdensome.

Given all that, Eric, again with the EFF, and a bunch of others (including us at Techdirt!) filed comments with the Copyright Office on Friday, complaining about this new rule, which will almost certainly burden many legitimate sites, causing them to lose their DMCA safe harbors simply by failing to re-register an agent in a timely manner.

We believe that once a service provider has made a valid designation, the designation should remain effective in the Copyright Office indefinitely, for at least three reasons: (1) 17 U.S.C. §512(c)1 already has too many conditions; (2) §512?s formalities already inhibit small service providers from enjoying the safe harbor; and (3) §512 already deprives service providers of protection if they do not accurately maintain their designations. For these reasons, we oppose any proposal to disqualify a service provider from the safe harbor for failing to maintain its agent registration with the Copyright Office, whether because the service provider failed to pay the appropriate renewal fee, failed to re-register an existing valid registration, or failed to take any other future action after a valid registration has been made.

If the hidden consequence of the Copyright Office?s proposed lower agent registration fees is a higher risk that an unsuspecting provider will lose §512?s safe harbor protections because it failed to renew, then the real cost of the new system is far too high. Therefore, we request that the Copyright Office offer a cost-effective option letting providers make only a single one-time registration to remain permanently effective.

The letter goes on to point out that in order to qualify for the DMCA’s safe harbors, a site already needs to satisfy 12 different conditions, which is already too burdensome. And this renewal process would make it even worse, if only because a site that simply forgets to register may face massive liability:

The new condition would have significant consequences: an otherwise-protected service provider could, if found liable for copyright infringement under the substantive liability standards, be exposed to a massive?and potentially business-ending?damage award that could reach millions (or even billions) of dollars for forgetting to renew or maintain the agent designation on time.

The letter also reminds the Copyright Office about its own views on why re-registration “formalities” is a bad idea for copyright registrations:

?[T]he renewal provision of the current law is a highly technical and rigid formality, and it often results in the unfair and unintended loss of copyright protection.?

The same concerns exist here, including the concern for conditions not present in other national systems.

More generally, the history of the Copyright Act clearly demonstrates that if Congress wanted to put an agent renewal condition into the law, it knew how to do so. The Copyright Office?s authority to make regulations for receiving DMCA agents? designations does not include authority to add additional conditions to §512(c) itself, and the Copyright Office has not identified any legislative grant that provides it with such authority.

Frankly, it’s ridiculous that you need to register with the Copyright Office to receive the safe harbors in the first place, but if that’s the case, there’s simply no reason that they should suddenly add in this demand to re-register every few years.

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Comments on “Copyright Office Pushing Dangerous And Ridiculous Plan To Strip Websites Of DMCA Safe Harbors”

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30 Comments
That One Guy (profile) says:

Ah gross hypocrisy and double-standards...

Remember, this is the same Copyright Office that seems to have no interest at all in making copyright holders renew their registrations, as such a thing would be too burdensome.

This part to me is the bit that sticks out the most, demonstrating hefty double-standards and highlighting once again the complete one-sidedness of the law and how it’s treated.

Forcing copyright owners to register their works, or re-register is proclaimed as too burdensome, or too difficult whenever the idea is proposed(despite the fact that that’s how it was originally done), yet here they’re proposing a requirement that sites that might be on the hook for insane legal fines due to the actions of others be forced to register not just once, but repeatedly? As though it was just no big deal.

The hypocrisy and double-standards on display with this suggestion are just staggering, and while I’d like to say it was as surprising as it was disgusting, at this point the law has been warped to be so incredibly one-sided that I can’t find it in myself to be surprised that they’re suggesting it be tilted even more.

Anonymous Coward says:

Re: Re: Re:

Registration does have a purpose. If you want the protections of the DMCA, you need to respond to DMCA notices. And people have to be able to know where to send them.

But I see no reason to require renewal every 3 years. If the DMCA information is out of date and someone can’t send a notice, you simply lose your protection.

Anonymous Coward says:

Re: Re: Re: Re:

“If you want the protections of the DMCA, you need to respond to DMCA notices.”

and requiring anyone wanting to exercise copy protection to register would have a more important purpose. If you want people to know something is (still) protected and to better track when it will enter the public domain you need to have it registered.

“And people have to be able to know where to send them.”

and people have to be able to know where to access the content once it does enter the public domain.

Having a good (public interest) reason for registration requirements to exist doesn’t always result in the government requiring registration. So why here (especially since the interests being served here are more the IP holder’s interests than the public interest by comparison)?

“But I see no reason to require renewal every 3 years. If the DMCA information is out of date and someone can’t send a notice, you simply lose your protection.”

and I see no reason for copy protections to last 95+ years and to get retroactively extended. Perhaps the renewal period should be 95+ years as well. Oh, but that would be bad for IP holders … who cares about the public.

Anonymous Coward says:

Re: Re: Re:2 Re:

“and requiring anyone wanting to exercise copy protection to register would have a more important purpose.”

“and I see no reason for copy protections to last 95+ years and to get retroactively extended.”

Yes, but the copyright office can’t control those things – those are directly specified in the law. But they CAN control the renewal of the DMCA agent.

Anonymous Coward says:

Proof of timely registration

I take it as a given that they will not be providing simple courtesies like reminder notifications sent to soon-to-expire registrations.

I suspect that their plan to discard the old database is motivated in part by it being easier for them to do that than to migrate it properly, and since it “only” costs $6 to get into the new database, users should just suck it up and live with it.

Given all the other technical problems just getting to the point where they can screw people over like this, how likely is it that they will acknowledge renewals in a way that can be cited later in official settings? If I renew my registration, and they somehow do not enter it into the database (or it gets incorrectly expired early, or they revert to backups, etc.), how do I prove to a court that I did everything I reasonably could to retain my registration? Demonstrating that I have a $6 charge from U.S. Copyright Office Registration Renewal Department is likely not sufficient, because that bill would not show what information I submitted to them.

JoeCool (profile) says:

Re: Proof of timely registration

Add to that the fact that many more people will be using the system since it expires every three year. With more people applying, there’s bound to be delays in processing since they’ll only have one unpaid volunteer working on the applications. Your coverage probably also doesn’t start until they finish processing your application. Looks like something the **AA groups came up with as a way to minimize the number of folks able to claim safe harbor.

DogBreath says:

Re: Equal Protection

How can a law protect one if one has to pay a fee first?

Simple really.

First, implement said “Notice of Proposed Rulemaking” demanding fee.

Second, have it fought all the way up to the Supreme Court.

Third, have Supreme Court say it is OK as long as it is not a Fee, but a Tax. Observe quick paper shuffling done to strike out word “Fee” and replace with word “Tax”.

Problem Solved.

DannyB (profile) says:

Here's a great idea: force renewing DMCA agent every 3 years!

I am reminded of an old saying about how the goose and the gander have compatible ports, without needing any type of adapter. Or special cable. Or something like that. I can’t quite remember how the saying goes.

Here’s an idea. If websites have to renew their DMCA agent every 3 years, let’s also make copyright holders required to have and to renew their DMCA registered agent every 3 years. You should need a registered agent to file a DMCA request, since it has such super abuse potential.

Having filed bogus DMCA takedowns, under penalty of perjury should disqualify a DMCA agent from renewing. Bogus takedowns especially means filing a DMCA notice for something that you are not the actual copyright owner for. Or where no copyright or copyrighted material is actually listed (such as trying to silence speech that makes no use of copyrighted material).

Anonymous Coward says:

(Tri)Annual renewal fees are stupid

Hackers probably can’t wait for a $6 fee to make changes and accounts with “dadada” level passwords.

They need a version control system that publishes all registrations ever submitted.

Currently even with a $105 fee as a barrier your registration probably isn’t secure from the replacement standard that the Copyright Office currently uses, and might use on the new registration site.

Keep the fee (somewhat) high so it keeps it from being low hanging fruit, let everyone apply, then have the staff just handle disputes. That should keep operational costs down. They should tie in some automated domain name verification techniques too.

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