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 and comply with the following three requirements.
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.
Our View: One of the most significant errors we see businesses make. This “physical address” requirement is a change from the old rule, so make sure you comply. If a lawyer challenges your compliance with the DMCA, this is an area they will be looking at since it is well known that many businesses small and large have not taken this step. If you are worried about listing your address so publicly, hire an 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: (1) the name of the service provider; (2) the post office box address that the service provider wishes to use; (3) a detailed statement providing the reasons supporting the request, with explanation of the specific threat(s) to an individual’s personal safety or security; and (4) an email address for any responsive correspondence from the Office. There is no fee associated with making this request. 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.
Our View: 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. 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. While we believe the requirement should be done away with, 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 petitions on his desk is growing rather tall.
3. What is the periodic “renewal” requirement?
The Copyright Office Position: 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, it must renew the designation (by amending or resubmitting it) prior to January 1, 2020. But if that service provider instead amends its initial designation on March 1, 2019 to update it with new information, the three-year renewal clock is reset, and March 1, 2022 becomes the date prior to which the service provider must renew the designation. If the service provider then resubmits its designation without amendment on February 25, 2022 to satisfy the renewal requirement, then the three-year clock is reset again, and February 25, 2025 becomes the next date prior to which the service provider must renew again.
Our View: 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, but we believe such protests are a bit much. First of all, one is only required 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 while businesses that have failed will be removed from the directory. 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 (including failing to renew or re-register using the electronic system)? You will lose the safe harbor protections of section 512 of the DMCA, leaving you vulnerable to claims of copyright infringement.
Put another way; this is serious stuff.
Make sure you to register your agent in the new system. If you need an agent, feel free to contact us.