Rebooting The Copyright Office’s Registered Agent Database

December 12, 2016Articles Law360

One of the major benefits of the Digital Millennium Copyright Act is that website owners can gain the protection of the DMCA’s safe harbor provisions by registering a DMCA agent with the United States Copyright Office. The safe harbor allows a copyright holder to notify a website operator that the copyright holder’s protected material was uploaded to the website and is being infringed. That website owner can avoid liability by removing the copyright-infringing material from its website after being notified. In the past, once a website owner registered a DMCA agent there were no additional requirements to ensure that the protection was valid. However, based on a recent announcement from the Copyright Office, the process for securing and maintaining the DMCA’s protection has changed.

On Oct. 31, the Copyright Office announced a change to the registered agent database that requires additional action on the part of a website owner in order to stay protected under the DMCA’s safe harbor provisions. The change, which took effect on Dec. 1, replaced the old paper filing system with a new electronic filing system. The old system had long been criticized for being difficult to navigate and cumbersome and for containing outdated information. Under the old system, website owners had to fill out the registered agent form and submit a hard copy to the Copyright Office. Once the Copyright Office received and processed the form, it would post PDF images of the submitted form to the registered agent database. Individuals were not able to search the database using keywords and instead needed to scroll through filings in order to find a particular registered agent.

The new system is designed to make it easier for individuals to search within the registered agent database since all the records are entered and stored electronically instead of as PDF images. The new system also allows for registrations to be posted to the registered agent database on the same day that they are submitted. This is a substantial improvement over the old system’s four to eight week wait time between when a registration was submitted and when it was eventually added to the registered agent database.

The switch to an electronic filing system puts every registered agent on the old system at risk of being wiped off the record unless he or she re-registers with the Copyright Office using the new electronic system no later than Dec. 31, 2017. The Copyright Office has stated that after the Dec. 31, 2017, deadline passes, all registrations on the old system will no longer be deemed valid or recognized in any formal context. A website owner that was covered until the Dec. 31, 2017, transition deadline will become ineligible for the safe harbor and will be exposed to lawsuits under the DMCA without further warning. During the transition period, the Copyright Office will maintain both the old system and the new system on its website. Users will need to search both databases to ensure that they are inspecting all of the information on record when searching for a registered agent.

In addition, website owners will now be required to update their registered agent information every three years in order to maintain their registration with the Copyright Office and their protection under the DMCA. The requirement of registering with the Copyright Office every three years places a burden on registered agents and website owners to keep a detailed log of individual registration anniversaries and update accordingly.

These new requirements are partly in response to a significant amount of outdated information within the database. According to the Copyright Office, roughly 22 percent of registered agents on the database are defunct, and of those that are not defunct, 65 percent contain inaccurate contact information for the registered agent. The Copyright Office believes that implementing the new electronic system will alleviate these issues, but many commentators do not believe that the benefit of the electronic system is worth the extra effort and risks that will be placed on website owners.

The main risk created by these changes is that website owners who miss the Dec. 31, 2017, registration deadline or forget to update their information every three years will lose their DMCA protection. This means that they will be exposed to potential lawsuits if infringing material is posted to their website. The Copyright Office is confident that the 13-month transition period will provide enough time for website owners to register on the new system. However, website owners that do not stay well informed on updates to the requirements, or forget to update their registered agent contact information every three years, will suffer. Many website owners, especially those owners with websites that are not professionally maintained, such as personal blogs or interest-specific forums, may lose the protection of the DMCA’s safe harbor provisions without even knowing that their current registration has been erased.

A side benefit of the new filing system is a decrease in costs associated with registering. The new system’s filing fee is $6 for up to 10 domains, which is a significant reduction as compared to the old filing fee of $140 for up to 10 domains. The downside is that the filing fee is required to be paid every time a website re-registers, which should be once every three years. Considering the deminimis fee, website owners should see a tremendous savings when registering new websites.

The Copyright Office also made a change to the requirement of listing an address on the filing information. The form has always required a “business address,” but under the old system a post office box address was an acceptable business address. Website owners who worked from home and did not have a formal business location often took advantage of the ability to list a post office box because it protected their private information. However, the new system requires a “real” address. A post office box is no longer an acceptable address unless the website owner files a petition seeking permission to list a post office box in lieu of a real business address. While ultimately this change still allows website owners to list a post office box address, a website owner who is not aware of the petitioning process will be forced to disclose his or her private information.

To register your website or your client’s website under the new filing system visit the Copyright Office’s website. Registered agents should be registered as soon as possible to ensure that the protection under the DMCA is maintained. A reminder system should also be employed to ensure renewal of the registration every three years.

Reprinted with permission from Law360. (c) 2016 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.