The Copyright Office’s new online agent registration system for the DMCA is humming along nicely. Unfortunately, we see instances where businesses register with the new system but fail to comply with the new regulations and rules issued by the Copyright Office. With this in mind, make sure you understand the three new DMCA agent rules you need to comply with and contact us if you need a DMCA agent.
3 DMCA Rules
1. What information must be made available on a service provider’s website and provided to the Copyright Office to designate an agent?
The Copyright Office Position:
A service provider is required to supply its full legal name, physical street address (not a post office box), any alternate names used by the service provider, and the name, organization, physical mail address (street address or post office box), telephone number, and email address of its designated agent.
This “physical address” requirement is one of the more controversial new DMCA agent rules. Lawyers representing a copyright holder will focus on this area when attempting to breach the DMCA provisions. We all know that many businesses small and large have not taken this step. If you are worried about listing your address so publicly, hire a DMCA agent such as ourselves and petition the Copyright Office for the right to use a PO Box as described below. By taking both steps, you should be able to hide your name, address, phone number, and email address.
2. Are there any circumstances under which I can provide a P.O. Box for the service provider’s address?
The Copyright Office Position:
Yes, but only with prior approval of the Copyright Office, which will only be given upon written request and in exceptional circumstances, such where there is a demonstrable threat to an individual’s personal safety or security, such that it may be dangerous to publicly publish a street address where such individual can be located.
To obtain a waiver, the service provider must send a signed letter, addressed to the “U.S. Copyright Office, Office of the General Counsel” and sent to the address for time-sensitive requests set forth in 37 C.F.R. 201.1(c)(1), containing the following information:
- The name of the service provider;
- The post office box address that the service provider wishes to use;
- A detailed statement providing the reasons supporting the request, with an explanation of the specific threat(s) to an individual’s personal safety or security; and
- An email address for any responsive correspondence from the Office.
The Office does not require a filing fee. If the request is approved, the service provider may display the post office box address on its website and will receive instructions from the Office as to how to complete the Office’s electronic registration process. Please note that this only applies to a service provider’s address. A waiver is not necessary to provide a post office box for a designated agent’s address.
One of the more common complaints we receive about the new rules is the requirement that businesses list the physical address where the company is run, to wit, no PO Boxes are allowed any longer. Of the new DMCA agent rules, companies seem to complain about this one the most. Such a requirement becomes problematic since few of us want “fans” showing up at the door, particularly if we work from home and have a family. We believe the Copyright Office should drop the requirement. Fortunately, the Copyright Office has provided some relief. With the December 31, 2017 deadline quickly approaching, make sure you get any petitions you will be filing in now to give time for General Counsel to review the petition. One imagines the pile of requests on his desk is growing rather tall.
3. What is the periodic “renewal” requirement?
The Copyright Office Position:
DMCA Agent Registration Renewals – A service provider’s designation will expire and become invalid three years after it is registered with the Office unless the service provider renews such designation by either amending it to correct or update all relevant information or resubmitting it without amendment to confirm the designation’s continued accuracy. Either amending or resubmitting a designation through the online system begins a new three-year period before such designation must be renewed, from the date of renewal.
For example, if a service provider registers a new designation on January 1, 2017, and thereafter makes no amendment to that designation. The provider must renew the designation before January 1, 2020. The Copyright Office resets the three-year clock if the service provider instead amends its initial designation on March 1, 2019, to update it with new information. The service provider must then renew the designation prior to March 1, 2022.
With the old system, you registered once, and that was it. The problem with such an approach was the directory became cluttered with registrations for businesses that no longer existed. Many companies also failed to update their listings, which inadvertently resulted in the potential loss of immunity under the DMCA.
Many commentators have expressed surprising outrage at the new renewal policy. We believe such protests are a bit much. First of all, the Copyright Office only requires companies to renew every three years and for a measly $6. The filing fee for the previous system was $140! Secondly, the renewal helps companies maintain the protections of the DMCA by forcing them to keep their information updated. Businesses that fail to renew lose the protection of the DMCA – a motivating factor. All in all, the new renewal policy is hardly the end of the world.
What is the consequence for choosing not to designate an agent or failing to keep a designation current and accurate? You lose the DMCA safe harbor protections of section 512, leaving you vulnerable to claims of copyright infringement.
Put another way; this is serious stuff.
And there you have the three new DMCA agent rules you need to keep an eye on. Make sure you to register your DMCA agent in the new system. If you need an agent, feel free to contact us.
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