Right now the Copyright Office is in the process of overhauling how it administers part of the Digital Millennium Copyright Act (DMCA), which has the potential to make the copyright notice-and-takedown process easier for service providers and copyright owners alike. The DMCA provides a safe harbor for online service providers that limits their liability for users’ infringement if they satisfy a number of conditions. One of those conditions is the agent designation requirement: the service provider must designate an agent to receive infringement notices from copyright holders so the service provider can take down the allegedly infringing content (subject to a counter-notice from the user). This week, Public Knowledge filed comments in the Copyright Office’s rulemaking to update its directory of service providers’ agents. PK’s comments were focused on making the new agent designation process as affordable and easy-to-use as possible. After all, the scope of eligible service providers is extremely broad, so we don’t want the agent designation process to be too burdensome on small businesses and hobbyists, and making it easier to register agents will benefit both service providers and copyright owners alike.
The Copyright Office currently has an interim agent directory under regulations that were set up mere days after the DMCA was enacted. These rules were intended to be a temporary makeshift solution while the Copyright Office thought through the relevant issues to come up with a more carefully considered process. Kind of like wrapping duct tape around a leaky faucet until you can get it repaired. Those “interim” rules have now been in place for 13 years, and they are long overdue for an update.
The current process is cumbersome and inefficient for both service providers and copyright owners. Right now, to designate an agent a service provider must fill out a form with all the information required by the regulations and pay a $105 filing fee (plus $30 for every 10 additional domain names). The service provider then prints out that word document, snail-mails it to the Copyright Office, and the Copyright Office scans it back into their computers as an unsearchable PDF. The Copyright Office uploads that PDF to its online database and links to it from an alphabetical list of service providers. The service provider list has a separate web page for each letter, but has no search function.
Besides being expensive for service providers, the directory is not nearly as useful as it could be for copyright owners. Since copyright owners can’t search for any of the text contained in the PDFs, the only thing they can work with is the list of names set up by the Copyright Office, which can make it hard to find a company if you’re looking for them under the wrong name. For example, if you look up Politico on the “P” page, you’ll get a different designation form than if you look up The Politico on the “T” page, and neither page alerts you that another form exists for the same organization elsewhere in the database.
Instead of this convoluted type-print-mail-scan-upload process, the Copyright Office’s proposed rules envision a system where service providers can submit an online form that becomes incorporated into the database in text form. The form would never be converted into an image, and all of the fields on the form would remain searchable for directory users. This may seem like a pretty obvious idea, but it is light years ahead of how our current system operates.
Of course, as flawed as the interim rules are, it’s important to remember that the Copyright Office set them up under a very short deadline and they were breaking new ground under the then-recently enacted DMCA. In any event, it’s great that the Copyright Office is now taking action to update the rules, ideally to create a system that is easier for service providers and copyright owners alike.
In our comments, PK urged the Copyright Office to use modern submission and database maintenance tools to make the agent directory much more useful for copyright owners while keeping the agent designation process as affordable and simple for service providers as possible. For example, one would hope that the $105 filing fee will drop significantly once a completely automated system is in place. We also objected to the Copyright Office’s proposals to make all service providers re-file their designations in the new directory. Instead, PK suggested that the Copyright Office simply migrate existing designations into the new database. Similarly, PK opposed introducing a new requirement that service providers periodically validate their designation. This obligation goes well beyond what is required by the DMCA, and service providers has plenty of incentive to keep their submissions up to date anyway, because their safe harbor status depends upon it.
It’s very encouraging to see the Copyright Office’s efforts to bring its agent directory into the 21st Century, and the new directory has the potential to help both service providers and copyright owners. We at PK hope the Copyright Office seizes the opportunity to streamline the agent designation process and maximize benefits for everyone in the notice-and-takedown process.