New Copyright Office Compendium Discussion About Designating Sec. 512 Agents

August 20, 2014 · by · in Copyright, Derivative Liability

compendium coverThe Copyright Office has released a pretty nifty document called the Compendium of U.S. Copyright Office Practices, Third Edition. The second edition was written 30 years ago, so it’s about time we got a new edition! I thought the document overall was a concise and readable distillation of copyright law, and I expect to use it as a handy reference frequently. I encourage you to check it out.

Below, I excerpted the Compendium’s discussion about designating an agent for 512(c)(3) takedown notices. This looked OK to me, but I figured it would be helpful to get multiple eyeballs on it. This draft isn’t final, so if you have any comments about this language, make sure to share them with the copyright office.
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2312 Designation of Agent to Receive Notifications of Alleged Infringement Under Section 512(c) of the Copyright Act

Section 512(c) of the Copyright Act limits the liability of online service providers for copyright claims involving material residing on their systems or networks at the direction of a user. See 17 U.S.C. § 512(c)(2). To invoke this provision, service providers must satisfy certain conditions. In particular, the service provider must designate an agent to receive notifications of alleged infringement and must provide the agent’s name, address, and other contact information to the U.S. Copyright Office. See, e.g., Oppenheimer v. Allvoices, Inc., 2014 U.S. Dist. LEXIS 80323, at *17 (N.D. Cal. June 10, 2014) (holding that an online service provider “may not invoke the safe harbor found in Section 512(c)(1) with respect to infringing conduct that occurred prior to . . . designating a DMCA-related agent with the Copyright Office”); Perfect 10, Inc. v. Yandex N.V., 2013 U.S. Dist. LEXIS 65802, at *21 (N.D. Cal. May 7, 2013) (“The statute plainly specifies that a registered agent is a predicate, express condition — the safe harbor will apply ‘only if’ such agent has been designated and identified to the Copyright Office for inclusion in the directory of agents.”).

This type of record is known as an “interim designation of agent to receive notification of claimed infringement.” See generally Designation of Agent to Receive Notification of Claimed Infringements, 63 Fed. Reg. 59,233 (Nov. 3, 1998). These records are posted on the Office’s website at www.copyright.gov/onlinesp/list/a_agents.html.

NOTE: The Office has issued a proposed regulation that may modify the practices and procedures for recording an interim designation of agent. Designation of Agent To Receive Notification of Claimed Infringement, 76 Fed. Reg. 59,953 (Sept. 28, 2011). Information concerning this rulemaking is available on the Office’s website (www.copyright.gov/onlinesp/NPR/).

[Eric’s note: you may recall that I worked with the EFF to submit a comment about the Copyright Office’s proposed modifications to designating agents. I’m not surprised that the Copyright Office hasn’t made any progress in 3 years. We’ve seen repeatedly that the Copyright Office doesn’t exactly move at Internet speed. For example, it took the Copyright Office 30 years to do the 3rd edition of its Compendium, and the Copyright Office is still using an “interim” designation of agent form after 16 years. It reminds me of websites that launch to the public but after several years still say they are in “beta” (Gmail “only” hid behind the beta label for 5 years). Hey Copyright Office, any timeline for removing the “interim” label from your designation form?]

2312.1 Who May Submit an Interim Designation of Agent?

An interim designation of agent may be submitted by a service provider or its duly authorized agent. A service provider is defined as “a provider of online services or network access, or the operator of facilities therefore,” and includes “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” 17 U.S.C. § 512(k)(1).

2312.2 How to Submit an Interim Designation of Agent

An interim designation of agent should be made in writing and should contain the following information:

• A caption or heading that identifies the document as an “Interim Designation of Agent to Receive Notification of Claimed Infringement.”
• The full name and address of the service provider.
• All names under which the online service provider does business.
• The name of the agent designated to receive notifications of claimed infringement.
• The agent’s full address, including a specific name and number for the street address or rural route. A post office box or similar address is not sufficient, unless it is the only address that may be used in that geographic location.
• The agent’s telephone number, fax number, and email address.
• The signature of an appropriate officer or representative of the service provider that designated the agent, along with the printed or typewritten name and title of that individual and the date of the signature.
37 C.F.R. § 201.38(c).

Service providers are not required to use a specific form for preparing an interim designation of agent, although the Office does offer a suggested form on its website (www.copyright.gov/onlinesp/). See 37 C.F.R. § 201.38(b). Interim designations may be delivered by hand to the Public Information Office at the address specified in Chapter 200, Section 204.1(B)(3), or they may be sent by mail to the following address:

U.S. Copyright Office
Designated Agents
P.O. Box 71537
Washington, DC 20024-1537

2312.3 Filing Fee for an Interim Designation of Agent

To record an interim designation of agent, the remitter must submit the correct filing fee. The current fee is set forth in the Office’s fee schedule. 37 C.F.R. § 201.3. Specifically, the remitter must pay a basic recording fee for each document that is submitted for recordation. The basic recording fee is listed in the Office’s fee schedule under the heading “Online service provider designation (recordation of an interim designation of agent to receive notification of claimed infringement under Section 512(c)(2)” (www.copyright.gov/docs/fees.html).

If the document contains multiple names, the remitter must pay the basic recording fee plus an additional fee. The additional fee is listed in the fee schedule under the heading “Alternative names, including websites (per group of 10 or fewer).” The amount of the additional fee is based on the number of names listed in the document. Specifically, the remitter should submit an additional filing fee for each group of ten names or less that are listed in the document. For information concerning the methods for paying this fee, see Chapter 1400, Sections 1403.4 and 1403.5.

2312.4 Amendments

If there is any change in the information reported in an interim designation of agent, the service provider should file an amended interim designation containing the information set forth in Section 2312.2. The amendment should be sent to the address specified in Section 2312.2, together with the appropriate filing fee specified in Section 2312.3. See 37 C.F.R. § 201.38(f).

If a service provider terminates its operations, the provider or its duly authorized agent should notify the Office in writing. The notification should be sent to the address specified in Section 2312.2 by certified or registered mail. See 37 C.F.R. § 201.38(g).