Copyright Office Q&A Session About The New Online DMCA Designated Agents Directory
By guest blogger Franklin Graves
Last week, at the ABA’s Midyear Meeting in Miami, Florida, the Section of Intellectual Property Law’s Computer Program & New Technologies Committee hosted a Q&A event with the U.S. Copyright Office to discuss the new online DMCA Designated Agent Directory. [Eric’s most recent blog post on this topic.] Attorney-Advisor Jason Sloan joined via telephone to answer a set of questions collected in advance, as well as field live questions from attendees. Below is a transcription of the Q&A session, moderated by the Committee Vice Chair Franklin Graves, published in an effort to provide answers and insights into common issues and scenarios facing practicing attorneys working with the new system.
Question 1: Are there any resources available to attorneys on how to use the new system? Or, any materials they can use in talking with their clients about the system?
Answer 1: Yes. The Office has a Help page on its website, at https://www.copyright.gov/dmca-directory/help.html, which contains a series of video tutorials that show step-by-step how to use the new system. We have ones for searching the directory, creating an account, managing an account, designating an agent, managing a designation (which discusses amendments and termination), and renewing a designation. Additionally, on the same help page, there is a link to a list of frequently asked questions. For attorneys, we also recommend reading the Federal Register notice that accompanied the new rule (81 FR 75695 (Nov. 1, 2016)) which discusses the system as well. We also welcome anyone with questions about the rule or the system to contact us. There is a contact form on the Help page, or emails can be sent directly to copyosp@loc.gov. The Office can also be reached by phone at (202) 707-1759.
Question 2: Will the Copyright Office institute an alert system providing companies that have registered warning that the three year registration period is about to expire? If so what system?
Answer 2: Yes. The new system already has one built in to help ensure that no service provider accidentally forgets to renew its designation. The system is designed so that email alert reminders will automatically be sent out 90 days, 60 days, 30 days, and 7 days prior to a service provider’s renewal deadline. Each of these emails will be sent to all four email addresses provided to the Office as part of the designation process: the primary and secondary contacts for the account associated with the service provider, as well as to the service provider directly and the service provider’s designated agent. While it is not required to provide different contact information for the primary contact, secondary contact, service provider, and designated agent, the Office recommends it so as to ensure that important notices and reminders sent by the Office (like those for renewal) promptly reach the correct individuals. By having multiple renewal reminders sent to multiple individuals, it is less likely that someone will forget to renew.
Question 3: It appears that there is no way to control what communications are sent to the e-mail addresses that are provided during the registration process. How can attorneys, registering on behalf of their clients, better control the e-mails that are sent when setting up service providers and designated agents?
Answer 3: Most emails generated by the system go to all four points of contact provided to the Office: primary and secondary contacts (which are meant to be the account holders who manage a service provider’s designation), service provider, and designated agent. So, if an attorney is managing his or her client’s designation, the attorney is likely going to be either the primary contact or the designated agent (or both), so he or she would get any important emails, and then the client, as the service provider, would get those emails too. That is by design, so that both the service provider itself and its representatives get all pertinent notices and reminders. Certain emails that concern system operations, like if the system is going to be down for maintenance, only go to the primary and secondary contacts.
(Audience Question) That pre-supposes that any lawyer filing a designation is going to have a three-year long relationship with the client.
See Question 8.
Question 4: Are there any concerns with the reregistration requirement? It seems like an extreme consequence that DMCA Safe Harbor protections are completely lost in the event a service provider fails to renew.
Answer 4: The Office is aware of the concerns voiced both during the rulemaking and after publication of the final rule surrounding the requirements to re-register in the new directory and to renew designations. The Office understands that losing safe harbor protection is a significant consequence, and does not intend for this rule to catch service providers in “a trap for the unwary.” But the statute requires that the directory must be kept “current,” and after looking at a large sample of designations from the old paper directory, we found that a significant proportion were for defunct service providers, and that even for non-defunct service providers, more than half of the designations appeared to have outdated information (when compared to the information provided by service providers on their own websites). The Office believes that renewal and re-registration are the best methods of ensuring that the directory remains a usable resource to members of the public that need to send takedown notices. Additionally, in the process of examining the sample of service providers, our reviewers encountered significant difficulty finding DMCA agent contact information on a number of websites, which the Office believes is another reason why keeping the Office’s directory current and usable is crucial. It’s not just a backup source for the information as some have contended.
As just discussed, four separate reminders will be sent to multiple individuals associated with the service provider, making it highly unlikely that all of them will forget to complete the renewal process, which only takes a few minutes.
Looking forward, the Office will be monitoring the situation closely as we near December 31st to see if the volume of designations in the new directory is similar to that of the old directory, and if it’s not, we will consider extending the deadline or taking other action at that time. Similarly, we will be monitoring three years from now to make sure service providers are in fact renewing and if they are not for some reason, we intend to engage in outreach to make sure they do not lose their safe harbors. The Office is also not opposed to possibly revisiting the rule if need be.
Question 5: The final rule (37 C.F.R. 201) mentions “public outreach efforts” for reregistration. What educational communication activities is the Copyright Office involved in with regards to publicizing the pending deadline of December 31, 2017, for previous designated agent registrations?
Answer 5: With the rollout of the new rule and system, the Office issued a NewsNet to its subscribers and there was considerable press attention. The Office plans to send out additional NewsNets later in the year and is looking for opportunities like this one, to discuss the rule with the public. Additionally, we have met with the Computer & Communications Industry Association, Internet Association, and Internet Infrastructure Coalition which we asked to help get word out to their members about the new rule and re-registration requirement. Lastly, we are currently compiling a list of all of the designated agent email addresses from the old directory and intend to send a series of notices and reminders to them as well so the service provider’s agent (or at least the one provided to us) will be contacted directly about the need to re-register. It’s a manual process to compile it all, so it will likely be a few months before the first notice goes out to them.
(Moderator Comment): I know that some of the concerns have been that only IP attorneys or only copyright attorneys are going to know about the change. So, how does the Office go about reaching the technology sector or individuals and organizations not receiving the NewsNet updates. It sounds like trade and industry leading organizations are part of the focus on these marketing efforts. Does that sound accurate?
Response: Yes, as I mentioned, we have spoken with industry and trade organizations, and have asked them to help spread the word to their members. As far as re-registration is concerned, it only applies to those service providers that have previously registered, so by sending e-mail notices directly to all of the designated agents in the old directory, they should all know about it once those e-mails go out.
Question 6: This is a positive step in the right direction for bringing about digital records to the office. Are there any future plans for updates and features to be added to the online portal?
Answer 6: We appreciate that and agree, that it’s a great step in working toward the broader goal of Copyright Office IT modernization. The Office is currently working on at least two further releases of the system which will update and add some functionality. For example, after hearing some initial feedback from users, we plan to make the secondary contact requirement optional so that larger service providers that want to provide one can, but smaller service providers who may just be individual bloggers don’t have to worry about finding someone to serve as their secondary contact.
Question 7: Why is the system not automatically allowing a P.O. Box address to be used for the service provider?
Answer 7: Under the original 1998 interim regulations, the Office required an address for the service provider and designated agent, and required that the designated agent address not be a P.O. Box. Under the new rule, the Office flipped it, so P.O. Boxes can now be provided for designated agents, but not service providers. The main reason for the switch was that the Office found the restriction on the agent’s address to be unnecessary to achieve the goals of the statute, and felt that permitting a P.O. Box for designated agents would provide greater flexibility in handling incoming takedown notices sent via mail, and could lead to faster and more efficient processing. The street address requirement for service providers is primarily meant to help identify the service provider (as it is possible for different service providers to have the same name) and to provide the public with an address where legal notices can be sent if necessary. The requirement has been built into the system, so that when a user attempts to enter a P.O. Box address for the service provider, the system recognizes that and displays an error message explaining that a street address is required.
The new rule, however, does permit exceptions in certain circumstances. Service providers can seek a waiver by following the instructions in 37 C.F.R. 201.38(b)(1)(ii), which essentially involves sending a letter to the Office of the General Counsel detailing what legitimate reasons exist that warrant a waiver of this requirement. The Office obviously does not want anyone to be in a situation where it would be unsafe for an individual’s home address to be posted publicly in the directory, so please do reach out and request a waiver if you feel you are in that kind of situation. There is no fee to request a waiver.
(Audience Question) Is the information on the waiver availability in the error message about entering a P.O. Box? The final rule clearly states there is a P.O. Box exception for those that really need it and explains how to do it.
Response: I don’t think the error message tells you that you can get a waiver, but it’s been a while since I’ve seen the language of that error message, so I can’t say for sure. I can look into that though and will add that idea for a future system release. [Jason later confirmed with me that the system does not currently mention the availability of a waiver in the error message, and that the Office intends to add new text to the message about the waiver in the next system release.]
(Audience Question): For startups that are in a location for six weeks, and another location for two weeks, and then another location for fourteen months, there’s an argument they lose the safe harbor protections if they don’t keep updating when they move from one temporary space to another.
Response: If that’s what is happening, then I encourage them to apply for a waiver and it will be reviewed. We don’t want them to lose the safe harbor protections.
(Moderator Comment): Is there a place where comments or feedback can be e-mailed in or submitted via a website form?
Response: We don’t have an actual feedback form, but if you go to the help page I was talking about earlier (https://www.copyright.gov/dmca-directory/help.html) there is a contact web form, or you can email the Office at copyosp@loc.gov.
Question 8: I frequently work with start-ups and other businesses that are my client for the drafting of terms of services for their websites. Before, it was register and they were taken care of. How are they going to stay updated beyond once that initial attorney-client relationship is over?
Answer 8: First, the Office would like to make clear that designation registration was never a “set it and forget it” proposition. There has always been a statutory requirement for service providers to keep their designations current and accurate. So in that regard, nothing has changed. If the agent’s information changes after the conclusion of the attorney-client relationship, the service provider, as before, would need to reengage the attorney or engage a different attorney, or make the change itself.
Second, specifically with regard to the new system, if no ongoing relationship is anticipated then someone other than that attorney should be provided as the primary contact or the attorney should replace him or herself with a different primary contact before the relationship comes to a close. If nothing else, the service provider or the designated agent should be listed as the primary contact and be given the login credentials by the attorney so they can manage the account themselves. The attorney also should use separate accounts for each service provider he or she temporarily represents so that control of the account can easily be given to each respective service provider when the relationship ends. Although the system is designed so that designations for multiple service providers can be managed through one account, where there is no ongoing relationship anticipated, the Office recommends against use of this feature.
We are currently looking into a way for service providers to be transferred between accounts, which should make this situation less of an issue, but that functionality probably will not be ready for several months. In the meantime, a service provider that finds itself without access to its own designation should contact the Office for assistance.
[Note: Questions beyond this point were asked as part of the live Q&A session and were not provided ahead of time.]
Question 9: When something is typed into the search field, what index is the system searching?
Answer 9: Before you put your cursor in the search bar, it tells you that you’re searching by service provider name and alternate name. So, for example, if you were to search for something like “ABC,” the results could contain the service provider “ABC Company” and perhaps a matching alternate name, such as “finance.abccompany.com.” If you were to search just “finance” instead, it would still pull up “ABC Company” because of the “finance.abccompany.com” alternate name.
Question 10: Thank you so much for your time and explaining all of the procedures. I understand from this presentation that it was a deliberate feature or function of the system to have the e-mails go out in the way that they do. But, I wonder if there’s a possibility of having some control over the communications that are sent. We, for example, have been filing and continue to file designations of agents on behalf of clients. Then, they get the e-mail notices that come from the system and it confuses them. It’s unusual to have both the attorney and their client getting messages simultaneously and not control that it doesn’t go to the client. I understand that there may be people that are temporarily engaged with a client; but, we have long, on-going relationships with our clients. It’s traditional that when you file, for example, a copyright registration or trademark application, the client doesn’t receive anything because the attorney is handling all of the communications.
Answer 10: To have some way of personalizing the e-mail options is something I can add to the list for future discussion as we do new releases. I will say that in your situation, I understand, but the system is trying to be a lot of things to a lot of different people. For example, there are smaller service providers that don’t have representation, but they might have someone else that’s acting as their agent. It’s hard for the Office to guess who they would want the messages to go to. So, by sending them to everyone, all parties are made aware of the communications and, most importantly, when it comes time to renew, someone sees the reminder and takes care of it.
Question 11: I have a question about outreach. Does there exist a machine-readable set of the information from the paper-file DMCA designations? Is there any possibility or plan of proactively contacting those entities or agents to inform them about the regulation? Alternatively, is there a private sector planning to do that?
Answer 11: The old directory is not machine-readable, which is one of the reasons, as I mentioned before, for the re-registration requirement. We do, however, have staff currently typing up every one of the approximately 23,000 designated agent e-mail addresses from the old directory, and we will be sending out notices and reminders to them once that’s done. It’s a manual process, so it’s going to take a while (likely a few months) before the first of those reminders goes out.
Question 12: I noticed we talked about the registration timing out and the loss of safe harbor. And, Jason, you talked about how the Office doesn’t intent this to be a shot to the unwary. I have more of a statutory concern in that there is no provision in the 512 statute for the loss of safe harbor if the Office removes a service provider’s agent listing for lack of payment. This creates a very serious problem to a service provider if they lose their safe harbor standing, on which they may be relying, due to missing an e-mail (maybe because they thought someone else was going to answer the e-mail). And now they’re on the hook for intermediary liability. There is no provision in the statute that accounts for this loss.
Answer 12: As I mentioned before, that’s the determination that the Office made. I’m not here to get into the legal foundation or the policy of the final rule. The Office doesn’t want that to happen which is why three years from now we’ll be watching and, if service providers aren’t renewing, we’ll be reaching out them. As I said previously, the Office isn’t opposed to revisiting the rule at that time, if necessary. The Office truly doesn’t want service providers to lose their safe harbor protections over people forgetting or making mistakes. But, the statute requires that the directory be kept “current,” and the old directory appeared to be far from current, based on the Office’s study sample. It’s also important that copyright owners have a usable directory. All of this is discussed in detail in the Federal Register notice accompanying the final rule. At the end of the day, we’re sending multiple reminders to several people associated with the service provider, and the process to renew is very simple and quick to do. What you’re suggesting may happen is exactly what we don’t want to have happen.
Question 13: In terms of best practices, there’s no limit on the frequency in which you can give the “thumbs up” to your existing registration, except that it costs $6.00 each time you do, correct? Is there any reason that service providers shouldn’t have a best practice of doing this every six or twelve months to avoid a situation where they might forget if they only do this every three years?
Answer 13: There would obviously be an added expense, but at $6.00 each time, it might be seen as reasonable for that purpose. It certainly is not the Office’s intention for service providers to do that, but there’s no reason why they couldn’t. Even if you’re just paying and not changing anything (what we’re calling a “resubmission”), that resets the renewal clock. There’s no reason why you have to renew a couple of hours or days before your deadline. You could do it a month before or a year before if you wanted to, and the clock would reset from that point. I could see someone doing that if they’re managing several service providers and they were all initially created on different dates, and they wanted to get them all on the same renewal date. The only thing I’ll mention is that the directory tracks versions of designations, so every time you do that, it will create a new version in the system. There’s no problem with that though, except that someone would know that you’re renewing with more frequency, if that matters to you.