Section 512 of the Copyright Act provides a safe harbor for Internet service providers whose systems are used to transmit content created by third parties which infringes on copyrights. The provisions apply not only to common-carrier like services that merely transmit third-party content, but also to websites and other digital services that allow users to post material onto the service provider’s own sites – services like YouTube or Facebook whose very businesses are built on the ability of individuals to posting material on their sites. We’ve written about the safe harbor recently (see our articles here and here). The safe harbor requires, among other things, that the service provider not encourage the posting of infringing content on the site, but also that it take-down infringing material found on the site, and that it provide a “Designated Agent” for service of “take-down notices” – requests from copyright holders that infringing material be taken down from the site. That agent must be identified both on the website of the service and registered with the Copyright Office. The Copyright Office today announced rules for a new electronic system for registering such Agents.
We wrote about the Copyright Office’s proposal advanced 5 years ago for the new system, and it appears that it has now become a reality. Currently, service providers register a Designated Agent on a paper form filed with the Copyright Office, which the Copyright Office scans as a PDF file that is uploaded, individually, onto the Copyright Office’s website. Many felt that this system was clumsy and did not provide the information necessary for the take-down system to work efficiently, as it was difficult to search and was often full of outdated information. The new electronic system adopted by the Copyright Office and effective on December 1, is expected to remedy many of these complaints.
The new system will require that, by December 31, 2017, all parties seeking safe-harbor protections register in the online system. Paper registrations will no longer be accepted after the December 1, 2016 effective date, so all new registrations will also be made in the new system. Between the effective date of the new rules, and the required date for registration in the new system, both systems will be maintained, but entries in the electronic system will be deemed to take priority over those on the old paper system. Even those with paper submissions already on file must re-register into the new electronic system by December 31, 2017.
Like any online system, parties seeking this Section 512 protection will need to establish an account, with a user name and password. The registration can be done by the service provider itself, or through some third-party. Third-party registrants can register multiple service providers whose sites they are administering. The account set-up will require that the names, physical addresses, phone numbers and emails for two people – a primary and secondary contact for each registrant. These names will not be made public, but will be used by the Copyright Office to address questions about registrations, and to send renewal notices.
All registrations will need to be renewed every three years. This is to make sure that the registrations stay up to date. Three years is measured from the date of initial registration, or from the date of any amendment to the registration. The electronic system is supposed to send a series of renewal notices to the two contacts to remind the account owner that the registration needs to be updated.
The registration, of course, must to identify the Designated Agent. The Designated Agent can be an individual, a position at the service provider (e.g. the “Copyright Officer”), or even a third-party such as a law firm or special copyright administration company. In any case, the service of a take-down notice on the Designated Agent will be effective when given, and starts a set process for the evaluation of the take-down notice, so whoever is named needs to process the request expeditiously. The address (in this case a post office box is acceptable), the phone number and the email of the Designated Agent, as well as the name and organization with which the Agent is affiliated. The same information needs to be maintained on the service provider’s website, and must be routinely updated to keep the information accurate.
The registration will also require that the service provider provide not only its legal name, but also any other name which might be used by a copyright owner in a search to find the Designated Agent. So the service provider would need to provide other identifiers like its URL, the name of its App, and any brand name or other identifier by which the public is likely to identify the service. This is also to make the system more searchable by users.
Obviously, read the text of the Copyright Office’s notice for all of the details of the new registration system. All services that want to enjoy the protection of Section 512 should make sure that they are registered in the new system by the end of next year. Plus, if you host any content created by third parties (pictures, videos, letter to the editor) – anything that could infringe on a copyright of another – and are not yet registered, you should make sure that you are registered and otherwise comply with the requirements of Section 512 to help minimize the potential for your liability for such content.