Rules for designation of agent for safe harbor protection

Under the Digital Millennium Copyright Act (‘‘DMCA’’), the U.S. Copyright Office is required to maintain a ‘‘current directory’’ of agents that have been designated by online service providers to receive notifications of claimed infringement. Since the DMCA’s enactment in 1998, online service providers have designated agents with the Copyright Office using the Office’s or their own paper form, and the Office has made scanned copies these filings available to the public by posting them on the Office’s Web site.

A service provider seeking to avail itself of the safe harbor in section 512(c) (for storage of material at the direction of a user) is required to designate an agent to receive notifications of claimed copyright infringement by making contact information for the agent available to the public on its Web site, and by providing such information to the Copyright Office. A service provider that fails to maintain current and accurate information, both on its Web site and with the Office, may not satisfy the statutory requirements necessary for invoking the limitations on liability in section 512.

In an effort to assess the accuracy of designations in the existing Copyright Office directory, the Office undertook a comparison of the information contained in designations in the directory against the information on service provider Web sites. In doing so, the Office also learned that it often takes a significant effort to even locate designated agent information on a service provider’s Web site, and in many cases the Office was unable to locate the information at all.

The paper designation system is inefficient and expensive for service providers, and represents a significant drain on Office resources due to the largely manual process of scanning paper designations and posting them online. Furthermore, the search capabilities of the paper-generated directory, even in its online format, are limited. The Office proposed a new fully-electronic system through which service providers could more efficiently designate agents and maintain service provider and agent information with the Copyright Office, and the public could more easily search for agents in an online directory.

The new electronic system to designate agents with the Copyright Office pursuant to 17 U.S.C. 512(c)(2) fully replaces the paper-based system implemented through the interim regulations adopted in 1998. The system includes automatic checks to confirm that the requisite information is being provided and will verify certain types of submitted data. Additionally, to help ensure that designations in fact remain current and accurate, 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. This constitutes the requirement to periodically ‘‘renew’’ a designation. Either amending or resubmitting a designation, as appropriate, through the online system begins a new three-year period before such designation must be renewed.

In order to access the online registration system, a service provider must establish an account that will be used to log into the system and register itself and its designated agent. There is no charge to establish a registration account. Registration of any designation with the Office, including any subsequent amendment or resubmission must be made through such an account. The Office finds no compelling reason to deny a service provider the option of hiring a third party to manage its designation on its behalf, so long as the service provider is willing to accept the risk that it could lose the safe harbor protections of section 512 if such third party fails to provide accurate information and maintain an up-to-date designation at the Copyright Office.

A service provider is required to supply its full legal name, physical street address (not a post office box), telephone number, email address, any alternate names used by the service provider, and the name, organization, physical mail address, telephone number, and email address of its designated agent. The Office has clarified that the requirement to provide alternate names is not limited solely to names under which a service provider is doing business, such as a ‘‘d/b/a’’ name. Rather, service providers must list all alternate names that the public would be likely to use to search for the service provider’s designated agent in the directory, including all names under which the service provider is doing business, Web site names and addresses (i.e., URLs, such as ‘‘l.com’’ or ‘‘l.org’’), software application names, and other commonly used names. Separate legal entities, however – such as corporate parents or subsidiaries – are not considered alternate names.

The Office has decided to make prior versions of electronic designations available in the online directory so that the public can access them immediately and free of charge. Each time a designation is amended or resubmitted, the system creates a new version of the designation. Additionally, new versions are created whenever a designation, after having expired or been terminated, is reactivated. Such historical information may be useful, for example, in a litigation or research context.

Should a service provider fail to renew within the allotted time, the designation will expire and become invalid, resulting in its being labeled as ‘‘terminated’’ in the directory. The primary and secondary account contacts, service provider, and designated agent will be notified of this. Relying on service providers’ general statutory obligation to maintain accurate designations is an inadequate means of ensuring the directory remains current.

The Office concluded that it should not impose any requirements on a buyer or seller to update or terminate the prior designation. The Office sees no good way to enforce such a requirement, and remains disinclined to involve itself in policing the system for conflicting entries.