Reminder: The Copyright Office Will Be Yanking Eligibility for the DMCA Online Safe Harbor (Again)

In 2016, the Copyright Office rejiggered how it handles DMCA Online Safe Harbor agent designations. Instead of an indefinite designation, a service could only designate an agent for 3 years, after which the designation would automatically expire unless renewed. The Copyright Office claimed this change was needed because the registry was cluttered with outdated registrations, but those registrations weren’t really hurting anyone or anything, undermining the purported benefits from the change.

Meanwhile, the change came at a considerable cost: anyone who didn’t re-up their initial designation, or who fails to renew their existing designation, loses their eligibility for the DMCA safe harbor. This remedy is disproportionate to the transgression. I did ask the Copyright Office for estimates of how many designations lapsed upon the new system’s rollout but I never got a precise number. It was in the many thousands, though, and all of those services dropped out of the DMCA safe harbor. If in fact those designations were outdated and just cluttering the database, that’s not a loss at all; but surely some legitimate services fell through the cracks. Fortunately, I have not yet seen a lawsuit implicating the designation lapse.

Worse, a lapsed designation isn’t really curable. Of course, if there’s a lapsed designation, the service can always file a new designation that applies going forward. However, if there is a gap in the designations, then copyright owners can sue for alleged infringements during the gap without any protection from the DMCA at all. At that point, the best the service can do it ride out the statute of limitations.

The Copyright Office’s new electronic system went live December 1, 2016, which means we’re on the cusp of the initial 3 year designations expiring and needing renewal. Today, I got an email from the Copyright Office reminding me that my designation was going to expire in a few months:

This notice prompted me to go ahead and renew the designation today. To log in, I had to update my password because the Copyright Office ridiculously expires them before the designations expire, encouraging multiple visits just to maintain the password. (I never updated my password at the Copyright Office’s intermediate prompts, so I had to do it just this one time). The renewal interface was slightly wonky (e.g., you “edit” the designation to start the renewal process) and the wording wasn’t 100% intuitive, but the process appeared to work smoothly. I’m still waiting to confirm if they tacked the 3 years onto my current designation, or if the 3 years resets from the renewal date (which would forego the 3 months of remaining designation–not a big economic loss).

The Copyright Office promised a smooth renewal process, and that was my experience. Nevertheless, we all know there are many pitfalls in the system. Reminder emails might not arrive or may get spam-filtered. The recipient may not be the right person or might have left the company. The person in charge might delay with the renewals and miss the deadline. I’m not aware of any guesses about how many agent designations will lapse in the next few months, but I expect it’s in the hundreds or thousands. Those services will join the ranks of the services already booted from the DMCA Online Safe Harbor for failure to make the initial re-designation.

Don’t be one of the casualties of the Copyright Office’s pointless renewal requirement. Go ahead and renew your designation now, and then CALENDAR the next renewal so you aren’t relying on the Copyright Office’s emails.