WARNING: Copyright Office Resurrects Troubling Plan To Strip Websites Of 512 Safe Harbor

The Copyright Office has issued a Notice of Proposed Rulemaking (NPRM) regarding a new electronic submission process for websites and online services to designate agents to receive 512(c)(3) copyright takedown notices. The agent designation process is crucial to the 17 USC 512 safe harbors because the formality of designating an agent is required to qualify for the 512(c) safe harbor. See, e.g., BWP v. Hollywood Fan Sites. As part of rolling out the electronic submission process, the NPRM proposes reducing the filing fee from $105 (or more) to $6, reflecting that an electronic filing system would reduce the Copyright Office’s operating costs.

Recall that the DMCA was passed in 1998, and the Copyright Office issued an “interim” agent designation form shortly thereafter. 18 years later, the Copyright Office is still using an “interim” form. To put this in perspective, babies born in 1998 are entering college; and top songs from 1998 were from bands like Savage Garden, Third Eye Blind and Leann Rhimes. That’s a remarkably venerable “interim” form. Ah, government bureaucracy.

Why has it taken so long to resolve these issues? In 1998, using readily available technology, the Copyright Office could have easily and cheaply built an electronic submission process. Yet, the NPRM indicates that the Library of Congress only started building an electronic submission process in 2011; and it’s still not done 5 years later. Why? The NPRM throws the LOC under the bus:

Although it appeared at that time that the Library would be able to commit the necessary resources to complete development of the system without significant delay, as it turned out, the Library was unable to supply the requisite resources until fairly recently.

Ah, government bureaucracy.

Building an electronic filing process is nominally good news, but the Copyright Office has some not-good policies to go with it. In 2011, the Copyright Office proposed requiring filers to periodically renew their agent designations; this would help the Copyright Office clear the agent designation database of outdated information. While a mandatory renewal may sound like a minor technical requirement, it has massive substantive implications: a website could unintentionally or unexpectedly lose the 512(c) safe harbor entirely if it failed to complete the mandatory renewal perfectly. In 2011, Corynne McSherry of the EFF, Jason Schultz (then at Berkeley) and I objected to the Copyright Office’s mandatory renewal idea. I summarized the issue then:

Unquestionably, the proposal’s net effect will be that well-meaning legitimate websites will lose their safe harbor protection due to unintentional or garden-variety clerical/administrative errors. Further, there is almost no countervailing benefit to copyright owners or the Copyright Office from the additional administrative requirements. Indeed, the Copyright Office proposal inevitably will increase the litigation costs for both copyright owners and UGC websites as it gives them yet another thing to litigate over–as if 512 opinions weren’t long enough already.

The NPRM says it doesn’t want to discuss the mandatory renewal issue right now. It says comments “should be directed solely to the appropriateness of the proposed fee” and says it will respond to the 2011 comments on the mandatory renewal separately. (After all, they’ve only had those comments for 5 years; given the glacial pace of every aspect of DMCA safe harbor administration at the Copyright Office, it makes perfect sense why they need more time).

But in a classic form of government misdirection, the NPRM highlights the putative good news of decreasing the filing fee but buries the most important stuff in an ominous footnote:

These fee calculations assume that active existing designations will need to be refiled electronically in the new system. The calculations also anticipate that to keep the directory up to date, designations will be renewable on a three-year basis.

HOLD ON. First, the Copyright Office wants to purge its existing database and charge another $6+ to folks who already paid the $105+. Nice. Second, what happens if existing registrants don’t refile electronically? The NPRM doesn’t mention any grandfathering; and the Copyright Office’s financial model apparently doesn’t contemplate spending any money on digitizing the current designations. So it seems like the Copyright Office plans to toss out any designations that don’t re-up. Third, the Copyright Office’s financial model assumes mandatory 3 year renewals. What happens to designations that don’t pay up or otherwise comply with the renewal requirements? I doubt the Copyright Office plans to give those filers a free pass.

Interestingly, the NPRM acknowledges that outdated information isn’t a big deal. It says “a significant portion—for present purposes, the Office is estimating 75% to 85%—[of existing designations] represent service providers that continue to operate.” So to clean up 15-25% of its database, the Copyright Office is willing to jeopardize ALL existing and future designations? WHY?

On the surface, the $6 filing fee sounds great. I’ve been thinking all morning about the last time that a government fee was slashed by over 90% and I’ve been coming up dry. Let me know if you can think of other examples. However, it’s an apples-to-oranges comparison. The Copyright Office wants $6 every three years, as opposed to a one-time $105 fee (although in practice, most registrants needed to file amended designations periodically). Furthermore, while most registrants would see a net fee decrease, I’m sure virtually all registrants would prefer to pay a higher fee one-time rather than risk losing the 512 safe harbor over minor or technical issues.