Copyright Office Fucks Over Thousands Of Sites With Plans To Remove Their DMCA Safe Harbors
from the so-dumb dept
If you run any kind of website it’s super important that you file with the Copyright Office to officially register a DMCA agent. This is a key part of the DMCA. If you want to make use of the DMCA’s safe harbors — which create a clear safe harbor for websites to avoid liability of infringing material posted by users — then you have to first register with the Copyright Office. Larger corporate sites already know this, but many, many smaller sites do not. This is why for years we’ve posted messages reminding anyone who has a blog to just go and register with the Copyright Office to get basic DMCA protections (especially after a copyright troll went after some smaller blogs who had not done so).
A few months back, we noted, with alarm, that the Copyright Office was considering a plan to revamp how it handled DMCA registrations, which had some good — mainly making the registration process cheaper — but a really horrific idea of requiring sites to re-register every three years or lose their safe harbor protections. Despite many people warning the Copyright Office how this would be a disaster, on Monday the Office announced it was going ahead with the plan anyway, not even acknowledging that thousands of sites are likely to get fucked over by this move:
The United States Copyright Office has completed development of a new electronic system to designate and search for agents to receive notifications of claimed infringement, as required under the Digital Millennium Copyright Act (DMCA). Accordingly, the Office is publishing a final rule in the Federal Register tomorrow to implement that system, replacing an interim rule that the Office had adopted after the DMCA?s enactment. A prepublication version of the rule is available for public inspection here. The rule is effective on December 1, 2016, the date that the new online registration system and directory will be launched. In the meantime, users can begin to acquaint themselves with the new system by watching the video tutorials available here. Any service provider that has previously designated an agent with the Office will have until December 31, 2017, to submit a new designation electronically through the new online registration system.
Got that? Even if you followed the law and registered before, if you don’t re-register (and pay another fee), then you will be kicked off the list of registered DMCA agents, meaning that you will lose your DMCA safe harbors. Basically, the Copyright Office is announcing that it is kicking EVERY SINGLE site that registered for DMCA safe harbor protection OFF THE SAFE HARBOR LIST.. That’s horrendous. You have until the end of 2017, but really, how many sites (especially smaller sites or one person blogs) who don’t follow copyright law are going to realize they need to do this? This is a recipe for disaster, and is basically the Copyright Office giving a giant middle finger to the DMCA’s safe harbors for the sites that need them the most: smaller blogs and forum sites.
The Copyright Office’s stated reason for doing this is nonsensical. It complains about outdated information in its database:
Since the DMCA?s enactment in 1998, online service providers have designated agents with the Copyright Office via paper filings, and the Office has made scanned copies of these filings available to the public by posting them on the Office?s website. Although the DMCA requires service providers to update their designations with the Office as information changes, an examination of a large sample of existing designations found that 22 percent were for defunct service providers, while approximately 65 percent of nondefunct service providers? designations had inaccurate information (when compared to the information provided by service providers on their own websites).
The correct way to deal with this is to create a campaign to encourage sites to update their info — not to kick everyone off. This is the goddamn Copyright Office, whose whole job is about “registering” information about people. Does the Copyright Office threaten to dump someone’s copyright if a copyright holder’s information is out of date? Of course not. That would be ridiculous. But it’s now going to do that to any website that doesn’t remember to constantly re-register a DMCA agent. This is a recipe for disaster, and for no good reason at all. And the idea that false or outdated info is a problem doesn’t make much sense either. If a site has incorrect info, then they risk missing DMCA takedown notifications, meaning that they already face problems in not keeping their info up to date. The “solution” is not to make life worse for lots of other sites.
The final rule insists that this is no big deal because outdated info is “functionally equivalent to not designating an agent.” However, as Eric Goldman points out, that’s a total non sequitur. While it’s true that those with outdated info may not have an official registration any more, that’s no excuse for kicking off all those sites that do have valid registration. Those sites are fucked, for no reason other than the Copyright Office decided it has the right and power to just dump the entire list as of December 1.
As Goldman notes in his write-up of this clusterfuck, there’s a simple solution here that the Copyright Office could have done, but didn’t:
And when the Copyright Office disingenuously says the renewal requirement ?should in many cases actually assist service providers in retaining their safe harbor, rather than serving to deprive them of it,? it mockably conflates its ability to communicate helpful information to registrants with draconian substantive policy effects. Here?s an alternative: send out the reminder notices but don?t make the consequences of non-renewal COMPLETE FORFEITURE OF THE DMCA SAFE HARBORS. Similarly, the analogies to other recurring obligations, like business licenses, ignore (1) the frequently less draconian consequences of non-compliance, and (2) the reality that many of these recurring obligations are nevertheless frequently mismanaged by both big and small companies.
Goldman also notes another horrifying part of the plan. The Copyright Office — ostensibly to “help” those sites who forget to renew their DMCA agent – will list those sites on a public website of “lapsed” safe harbor registrants. Except, it’s likely that instead of “helping” those sites, it will actually just be presenting a target list for copyright trolls to go searching for any infringing material on any site with a lapsed safe harbor registration.
There are questions about what can be done here. It’s possible with new management coming to the Copyright Office that it may reverse this move, but that seems unlikely. It’s quite likely, however, that there will be some lawsuit over this, especially as the Copyright Office is single-handedly removing protections for a whole bunch of sites. Another option is that Congress could get involved, but that would likely create an even bigger mess (Congress touching copyright law — especially anything to do with the DMCA’s safe harbors — is not likely to end well).
This just seems like yet another example (in a ridiculously long list) of how screwed up the Copyright Office is these days.