The Copyright Office press release announcing a new online system for agent registrations for the DMCA was met with much acclaim given the previous paper filing system was such a disaster. What many people didn’t realize was the new system would come with new regulations, including a few tricky twists. Once such requirement many are still confused about is whether the registering party must list the physical street address of the business in question, or whether it can use a PO Box or similar service? Let’s dig into the question.
We can find the answer to our question in the Code of Federal Regulations at 37 C.F.R. § 201.38:
(b) Information required to designate an agent. To designate an agent, a service provider must make available through its service, including on its website in a location accessible to the public, and provide to the Copyright Office in accordance with paragraph (c) of this section, the following information:
(i) The full legal name and physical street address of the service provider. Related or affiliated service providers that are separate legal entities (e.g., corporate parents and subsidiaries) are considered separate service providers, and each must have its own separate designation.
(ii) A post office box may not be substituted for the street address for the service provider, except in exceptional circumstances (e.g., 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) and, upon written request by the service provider, the Register of Copyrights determines that the circumstances warrant a waiver of this requirement.
Although the regulation is fairly clear, some people have twisted themselves in circles to get around this physical street address requirement. Faced with this, the Copyright Office issued further guidance in its FAQ section:
Q. What information must be made available on a service provider’s website and provided to the Copyright Office to designate an agent?
Answer: 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.
So, the answer is pretty obvious. Must you list the physical address when registering a DMCA agent? Yes.
But why require a physical address? Large copyright holders lobbied the Copyright Office to generate more information regarding parties registering agents so those parties could be served with lawsuits, if necessary. No other reason for the physical street address requirement exists.
The problem with this approach is it creates safety risks for people working from home such as small business owners and freelancers. After all, how many of us want a “fan” appearing on our doorstep one day, particularly if children live in the house?
Copyright Office Petition
The Copyright Office’s response to this criticism is to state filing parties can petition for relief by showing “exceptional circumstances” that equates to a safety risk. You can read about the petition process here.
Of course, it is easy to complain about stupefying regulations, but such complaints ring hollow if one doesn’t also offer a solution. In this case, the answer is not only simple but so obvious that one must question the competency of individuals involved in drafting these regulations.
Have each person registering a DMCA agent designate a person to receive legal service. An agent for service of process, if you will.
States use this approach with business entities. When a person forms an limited liability company or corporation, they are required to list the name and address of a person designated to receive legal documents on behalf of the business. This individual is often the lawyer who formed the entity or a third party that provides such services.
If the Copyright Office used this approach with the DMCA agent registration system, the benefits would be threefold:
- Parties working from home would not be required to list their home address publicly;
- Copyright owners would have a clear path to serving lawsuits;
- Legal counsel for the Copyright Office would not need to waste time reviewing thousands of petitions for relief.
And the downside of such an approach? I’ve yet to identify one.
One imagines the Copyright Office will eventually get around to modifying the physical street requirement. Until then, unfortunately, you will need to either list your physical address when registering an agent with the Copyright Office or go through the process of petitioning for relief.