Page 24 - AVN March 2017

BUSINESS
ALL WEBSITE OPERATORS OR ONLINE
SERVICE PROVIDERS WHO MIGHT
WANT TO CLAIM DMCA SAFE
HARBOR DEFENSES RELATING TO
USER-GENERATED CONTENT MUST
DESIGNATE A DMCA AGENT USING
THE NEW AUTOMATED FILING
SYSTEM BY DECEMBER 31, 2017.
LEGAL NEWS | By Lawrence G. Walters
DON’T LOSE YOUR DMCA AGENT
Breaking down new procedures at the U.S. Copyright Office
minimum fee of $135 to a flat fee of $6. That’s a substantial
drop, but reflects the lack of any real human involvement
in the process. The bad news is that designations are no
longer permanent like they were in the old system. Again,
all old-system designations will expire on December 31,
2017. All new-system designations must be renewed every
three years by filing a renewed designation. If you amend a
designation on file in the new system, the three-year renewal
period starts over. Apparently, the U.S. Copyright Office will
send out reminders of any impending renewal deadline to
the email address of record, but separate calendaring of this
filing deadline by the service provider (or its attorney) is
highly recommended. It is difficult to predict how the system
will work in three years.
One other change in the procedures is the requirement
that service providers submit a telephone number and
email address when submitting a designation. Previously,
that information was not required. Notably, the telephone
number and email address will not be posted in the database,
but will be maintained in the internal records of the
Copyright Office.
Some practical problems are bound to arise from this
transition. As noted above, some service providers will
understandably believe that they have a current designation
on file, but that designation may never be posted if it was
submitted in the latter part of 2016. Individuals trying to
locate a service provider’s DMCA agent may not understand
the obligation to check two independent DMCA agent
databases—either of which could have relevant information
about a service provider’s agent. Some service providers will
have conflicting designations filed in each database directory.
Filing a designation in the new system may not override or
cancel out the designations filed in the old system. Some
websites may have more than one service provider associated
with them, according to one or the other databases. Some
domains may be overlooked and not included in the new
designations, and will thus lose any safe harbor protection.
Ultimately, the confusion and inconsistencies will be
corrected due to the passage of time, and the elimination
of the old system at the end of 2017. For now, it is
essential for service providers to carefully review their
designations for accuracy and continued validity. Multiple
calendaring systems should be implemented to ensure that
renewal designations are filed on a timely basis. Given the
importance of correctly filing and maintaining a DMCA
agent designation, many service providers chose to have an
attorney act as their DMCA agent, and oversee the process.
While filing the designation of agent in the new system is
not rocket science, attorneys tend to be meticulous with
filing procedures and deadlines. Moreover, since a website’s
DMCA contact form or email address is often used by
third parties for a wide variety of legal notices, claims,
subpoenas, search warrants, and preservation notices, a
licensed attorney will be able to quickly escalate any non-
routine legal correspondence, and ensure timely compliance
with legal obligations. Regardless of your choice of DMCA
agent, it is essential to remain up to date on the changing
legal requirements for filing and renewal of DMCA agent
designations with the U.S. Copyright Office.
ON DECEMBER 1, 2016, THE U.S. COPYRIGHT OFFICE
went live with its new DMCA Agent Database,
and revamped the procedures for designating an
agent for receipt of copyright infringement notices.
(For any reader who does not know about the
benefits of designating a DMCA agent, the author’s
previous article covering those topics can be found
at FirstAmendment.com/dmca-agent.) This article
focuses on the recent changes to the procedures
and the consequences of failing to comply with the
new requirements for designating a DMCA agent.
First, and most importantly, all website operators
or online service providers who might want to
claim DMCA safe harbor defenses relating to
user-generated content must designate a DMCA
agent using the new automated filing system by
December 31, 2017. This includes anyone who
has already designated a DMCA agent in the old,
manual filing system, which ceased accepting new
filings as of December 1, 2016. Failure to designate
an agent in the new system by the deadline (even
if you already filed a designation in the old system)
means your business is left without a DMCA agent,
and without any legal basis for claiming safe harbor
protection in response to a copyright infringement
claim. Instructions can be found here: Copyright.
gov/dmca-directory.
Why are they doing this? Supposedly, it comes
down to efficiency and accuracy of the database
records. The new automated, online agent
designation system is superior to the old system,
since submission of the DMCA agent information
to the Copyright Office, and payment of the fee,
now take place electronically—and rather quickly.
Requiring updated information and renewals will
keep the information contained in the designations
more current and accurate—more about that later.
With the old system, anyone seeking to
designate an agent would need to fill out a .pdf
form containing all the contact information and
associated domain names, which would be sent
to the Copyright Office—along with a paper
check—and then scanned into the database
by a human being who would then
manually associate the service provider’s
corporate name with any and all domains,
mobile applications or other “alternative
names” used by the service provider in
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business. That information would be uploaded
into an antiquated database with limited search
capabilities.
Filing a designation in the old system would
often take weeks, and the online database was
littered with errors given its reliance on human
data input. Domains would often be misspelled,
overlooked and/or duplicated. Each posting
would need to be carefully reviewed by the service
provider (or its attorney) for quality control, and
errors would often take weeks (or months) to fix. In
fairness to the governmental employee previously
responsible for overseeing the old system, she was
given a virtually impossible task, with outdated
technology and minimal support staff. That person
is no longer with the U.S. Copyright Office, and
given the automated nature of the new system, it
appears that no individual will be responsible for
overseeing it.
The old system was actually being phased
out months before the new system went online
in December 2016. Widespread reports have
indicated that designations of agent sent to the
U.S. Copyright Office in the months leading
up to the launch of the new system have been
uniformly ignored, and not posted in any database.
Notably, the filing fee checks were cashed by the
government, but many designations have not been
processed or posted online. This may result in some
dramatic consequences for any service providers
who believe they have submitted valid designations
during this ‘doughnut hole’ between the end of the
old system and the launch of the new system. If
you recently filed a designation in the old system
database but it does not appear in this database,
Copyright.gov/onlinesp/list/a_agents.html, it
may be gone for good. Any designation submitted
to the old system will become invalid anyway
as of December 31, 2017, so a new designation
submitted in the automated system will be required
by the end of the year for all service providers.
Instead of wasting time trying to track down the
status of a designation filed in the old system,
simply file one in the new system and move
on.
The one piece of good news in all of this
chaos is that the filing fee for submitting
designations has gone down from a
Lawrence G. Walters heads up Walters Law Group, and represents
clients in all facets of adult media. Nothing in this article is intended
as legal advice. Mr. Walters can be contacted via his firm’s website,
FirstAmendment.com, or Twitter: @WaltersLawGroup.