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
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.