More Groups Warn CO on DMCA Agent Renewal Requirements
Additional groups warned the Copyright Office Friday against using a rulemaking to reduce the fee significantly for online service providers to designate agents to receive notifications of claimed infringement under Digital Millennium Copyright Act Section 512 as a way of undermining the statute’s safe harbor provisions. The Electronic Frontier Foundation, Internet Association (IA) and others cautioned the CO on its NPRM, though the American Association of Publishers (AAP) fully backed the proposal. The CO sought comment last month on the plan, which would lower the fee to $6 per designation in anticipation of a switch from using paper forms to designate those agents to an online filing system. The designation fee framework includes an initial $105 fee and an additional $35 fee for each of up to 10 alternate designated agents (see 1605250055).
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The CO proposal to lower designated agent registration fees “will be much appreciated” by stakeholders but EFF said it has “deep concerns” about a footnote in the NPRM that says the office contemplates requiring all currently designated agents to re-register electronically once the office’s proposed digital database is released and to require online services to renew designated agents every three years. The Organization for Transformative Works and Santa Clara University law professor Eric Goldman joined EFF in submitting its comments. EFF said it’s concerned about the footnote “because the proposal does not explain what consequences will occur if the service provider fails to make that renewal. We are equally concerned about the apparent assumption that service providers who have already made a valid agent designation with the [CO] would be required to re-register (and pay another fee) because the proposal does not explain what consequences will occur if the service provider fails to re-register or pay the additional fee.”
A service provider's designation "should remain effective” indefinitely once filed, EFF said. The CO should “offer a cost-effective option letting providers make only a single one-time registration to remain permanently effective” because Section 512 “already has too many conditions,” EFF said: The statute’s formalities “already inhibit small service providers from enjoying the safe harbor and deprive “service providers of protection if they do not accurately maintain their designations.”
IA also worried about the footnote. The industry group said “a fee structure dependent on periodic renewal of agents is improper as it would undermine the safe harbors and needlessly jeopardize the legal certainty required by online platforms.” Periodic renewal “would impose a new regulatory burden on service providers not contemplated under the statute and exceeds the requirements,” IA said. “The consequences of an inadvertent failure to renew, or imperfect compliance with clerical issues associated with renewal, would be devastating for Internet platforms operating in good faith.” The Computer and Communications Industry Association raised similar concerns about the NPRM footnote’s implications Thursday (see 1606240028).
AAP backed the NPRM. “The combination of reduced fees with an online registry for the designation of DMCA agents will contribute to heightened transparency in the digital environment,” AAP commented. “The proposed rule is also in line with Congress’ express intent when it implemented the DMCA and directed the Register of Copyrights to ‘maintain a directory of designated agents available for inspection by the public.’ Lower DMCA agent registration fees contribute to this goal by reducing a potential obstacle for ISPs and by setting the conditions for both copyright owners and users to benefit from an up-to-date, easy-to-use directory of designated agents to more effectively make use of the notice-and-takedown system.”