Designation of Agent To Receive Notification of Claimed Infringement

AGENCY:

U.S. Copyright Office, Library of Congress.

ACTION:

Final rule.

SUMMARY:

Under the Digital Millennium Copyright Act (“DMCA”), the U.S. Copyright Office is required to maintain a “current directory” of agents that have been designated by online service providers to receive notifications of claimed infringement. Since the DMCA's enactment in 1998, online service providers have designated agents with the Copyright Office using the Office's or their own paper form, and the Office has made scanned copies these filings available to the public by posting them on the Office's Web site. Although the DMCA requires service providers to update their designations with the Office as information changes, an examination of the Office's current directory reveals that many have failed to do so, and that much of the information currently contained in the directory has become inaccurate and out of date. On September 28, 2011, the Office issued a notice of proposed rulemaking to update relevant regulations in anticipation of creating a new electronic system through which service providers would be able to more efficiently submit, and the public would be better able to search for, designated agent information. On May 25, 2016, with the electronic system in its final stages of development, the Office issued a notice of proposed rulemaking proposing significantly lower fees for designating agents through the forthcoming online system. As the next step in implementation, the Office today announces the adoption of a final rule to govern the designation and maintenance of DMCA agent information under the new electronic system and to establish the applicable fees.

DATES:

Effective December 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Sarang V. Damle, General Counsel and Associate Register of Copyrights, by email at sdam@loc.gov, or Jason E. Sloan, Attorney-Advisor, by email at jslo@loc.gov. Each can be contacted by telephone by calling (202) 707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

In 1998, Congress enacted section 512 of title 17, United States Code, as part of the Digital Millennium Copyright Act (“DMCA”). Among other things, section 512 provides safe harbors from copyright infringement liability for online service providers that are engaged in specified activities and that meet certain eligibility requirements. A service provider seeking to avail itself of the safe harbor in section 512(c) (for storage of material at the direction of a user) is required to designate an agent to receive notifications of claimed copyright infringement by making contact information for the agent available to the public on its Web site, and by providing such information to the Copyright Office. The safe harbors in subsections 512(b) (for system caching) and (d) (for information location tools) incorporate the notice provisions of section 512(c) and thus also require that notices of infringement be sent to “the designated agent of a service provider” —that is, an agent that has been designated by the service provider as described above.

The language of section 512(c)(2) makes clear that a service provider must maintain the same contact information required under section 512(c)(2)(A) and (B) both on its Web site and at the Copyright Office. A service provider that fails to maintain current and accurate information, both on its Web site and with the Office, may not satisfy the statutory requirements necessary for invoking the limitations on liability in section 512.

As Congress made clear in enacting section 512(c)(2), its expectation was that “the parties will comply with the functional requirements of the notification provisions—such as providing sufficient information so that a designated agent or the complaining party submitting a notification may be contacted efficiently—in order to ensure that the notification and take down procedures set forth in this subsection operate smoothly.” A service provider's failure to maintain up-to-date information would be contrary to that congressional intent, and would substantially undermine the statutory regime, as inaccurate or outdated information could significantly affect the ability of a copyright owner to contact a service provider's designated agent. The end result in such a case would be the same as if the service provider had not designated an agent at all—notifications of claimed infringement cannot effectively be submitted. Because providing inaccurate or outdated information can be functionally equivalent to not designating an agent, it follows that just as designating an agent is a prerequisite for obtaining safe harbor protection, keeping that designation current and accurate must be an ongoing prerequisite as well.

Moreover, the statute specifically directs the Copyright Office to “maintain a current directory of agents,” and authorizes a fee to cover the “costs of maintaining the directory.” The purpose of this central repository of designated agent information—separate and apart from the information required to be maintained on each service provider's Web site—is “[t]o facilitate easy access to the identity of all designated agents” for public use. If designated agent contact information contained in the Office's directory is inaccurate or out of date, it would significantly hinder the ability of copyright owners to efficiently contact the service provider's agent. This is especially so because it may be difficult to locate contact information for a designated agent on a service provider's own Web site. Thus, in adopting regulations to implement the statute, the Office's ultimate task is to ensure that the directory fulfills its essential purpose as a convenient repository for “current” designated agent information.

Because the DMCA was effective on its date of enactment, and a procedure to enable the designation of agents needed to be in place immediately, the Copyright Office issued interim regulations governing the designation of agents to receive notifications of claimed infringement without the opportunity for a public comment period. While the information required to be provided by the interim regulations was originally submitted to the Office in paper hardcopy, the Office later began accepting scanned submissions of paper designations via email. Once received, the Office then scanned the filings, if necessary, and posted them to the directory on its Web site. This system has continued to this day.

Over time it has become clear to the Office that the designation process established under the interim regulations needs to be updated to better fulfill the objectives of section 512(c)(2). The paper designation system is inefficient and expensive for service providers, and represents a significant drain on Office resources due to the largely manual process of scanning paper designations and posting them online. Furthermore, the search capabilities of the paper-generated directory, even in its online format, are limited. To effectuate an update of the interim regulations, the Office issued a notice of proposed rulemaking on September 28, 2011 (“NPRM”) proposing a new fully-electronic system through which service providers could more efficiently designate agents and maintain service provider and agent information with the Copyright Office, and the public could more easily search for agents in an online directory. At the time of the NPRM, the Office also expressed concern that a sizable portion of the designations in the paper-generated directory appeared to be outdated or for defunct service providers. The Office had examined a small random sampling of designations from the directory, which revealed that a number of existing designations were associated with businesses that had ceased operations. Thus, although the interim regulations required a service provider that ceased operations to notify the Copyright Office of such, it seemed that few actually did so. The Office also noted that although it was unable to “discern the precise percentage of designations that contain outdated information, the number of amended designations that the Office does receive suggests that many designations are probably outdated.”

In 2013, the Department of Commerce's Internet Policy Task Force reiterated concerns regarding the accuracy of the Office's existing directory in a paper addressing various issues involving copyright and new technologies. Relying on an industry study, the Task Force found that “the database is not current and reliable.”

More recently, to confirm the NPRM's initial assessment of the quality of the information in the current designated agent directory, the Office examined a larger sampling of 500 existing paper designations and found that approximately 70% either had inaccurate information or were for defunct service providers. Specifically, 110 (22%) appeared to be for defunct service providers. For the remaining, non-defunct service providers, to determine whether a service provider's designation contained inaccurate or outdated information, the Office compared the information provided in the paper designation to the information the service provider currently provides on its own Web site. As noted above, the DMCA requires a service provider to maintain the same information both on its Web site and at the Copyright Office. Where there is a discrepancy between these sources, it is fair to assume that the information in the Copyright Office's directory, rather than the information on the service provider's own Web site, is out of date, as service providers are more likely to update their own Web sites on a regular basis.

Accordingly, for each of the 390 non-defunct service providers in the sample, the Office assessed whether the telephone number, physical mail address, and email address listed for the designated agent in the Office's directory matched the contact information on the service provider's Web site. The Office found that the Web sites for 20 service providers did not appear to contain any contact information whatsoever. Although these service providers' failure to provide designated agent information on their Web sites renders them ineligible for the section 512 safe harbors, that failure also meant that the Office could not ascertain the accuracy of the designations in the Office's directory one way or the other, because there was no information against which to compare. This left the Office with a sample of 370 service providers that had at least some of the required contact information on their Web sites that the Office could use to compare against the paper designations filed with the Office. Out of these 370 designations, 241 (approximately 65%) were out of date, as evidenced by the fact that one or more of the telephone number, physical mail address, or email address listed for a designated agent did not match the contact information on the corresponding service provider's Web site.

As this analysis shows, the apparent volume of designations in the Office's directory belonging to defunct service providers or containing inaccurate information is extremely high. These findings are particularly concerning because they show that service providers might unwittingly be losing the protection of the safe harbors in section 512 by forgetting to maintain complete, accurate, and up-to-date information with the Copyright Office. These findings are also concerning because the directory in many cases would seem to be an unreliable resource, at best, to identify or obtain contact information for a particular service provider's designated agent.

Though the Office did not yet know the full extent of the inaccuracy of the current directory, the Office issued the NPRM with these general concerns of accuracy, cost, and efficiency in mind. In addition to describing the proposed electronic system, the NPRM sought public comment on modified regulations that would govern the submission and updating of information relating to designated agents through such proposed system. In response to the NPRM, the Office received comments from trade organizations and others representing the interests of internet service providers and copyright owners.

To effectuate the system described in the NPRM, the Library of Congress authorized the necessary software development effort through its Information and Technology Services unit (now called the Office of the Chief Information Officer). Over the past year, the Library has committed development resources to this effort and it is now anticipated that the new electronic system to register designated agents with the Office will be launched on December 1, 2016.

As the software development effort was reaching its final stages, the Office on May 25, 2016 issued a notice of proposed rulemaking to lower the fee for designating an agent through the new system (“Fee NPRM”). The Fee NPRM proposed reducing the current fee of $105, plus an additional fee of $35 for each group of one to ten alternate names used by the service provider, to a flat fee of $6 per designation—whether registering a new designation, or amending or resubmitting a previously registered designation. The Office solicited comments on the proposed change in fees and received a number of comments in response.

Having reviewed and carefully considered all of the public comments received in response to the NPRM and the Fee NPRM, the Copyright Office now issues a final rule, effective as of the implementation of the new electronic system on December 1, 2016, governing the designation of agents to receive notifications of claimed infringement with the Office pursuant to 17 U.S.C. 512(c)(2), including associated fees. The Register's authority to implement such system and promulgate these regulations governing the designation of agents and the use and operation of the electronic system derive directly from section 512(c)(2), which explicitly permits the Register to require service providers to supply “contact information which [she] may deem appropriate” and expressly requires the Register to “maintain a current directory of agents available to the public.” In addition, the Copyright Act gives the Register general authority to “establish regulations not inconsistent with law for the administration of the functions and duties made the responsibility of the Register under this title.” Sections 512 and 702 together necessarily authorize such regulations as the Register may deem appropriate to ensure both a “current directory” and that the registration system and directory are acceptably “maintain[ed]” for continued usability. As noted, the purpose of the directory is “[t]o facilitate easy access to the identity of all designated agents” for public use, and the rule announced today serves this end by establishing an electronic system that makes it easier for the public to more effectively find current and accurate designated agent contact information.

II. Discussion

The new electronic system to designate agents with the Copyright Office pursuant to 17 U.S.C. 512(c)(2) will fully replace the paper-based system implemented through the interim regulations adopted in 1998. Beginning December 1, 2016, a service provider must use the online registration system to electronically submit service provider and designated agent information to the Copyright Office. Accordingly, as of December 1, 2016, the Office will no longer accept paper designations.

The comments received in response to the NPRM and Fee NPRM indicate widespread support for the creation of an electronic registration system, with no commenter suggesting that the paper system should be retained. Indeed, given that online service providers, by definition, operate in an online environment, an electronic-only designation procedure is not only logical but should pose no special burden for service providers. In addition, the electronic system significantly increases the administrative efficiency of the designation process, resulting in a dramatic reduction of costs to the Office and, therefore, in the filing fees to be charged to the service provider community. Such a system also better ensures that service providers will be supplying and maintaining accurate information with the Office by making it easier and cheaper to update designations. The system includes automatic checks to confirm that the requisite information is being provided and will verify certain types of submitted data. Moreover, the electronic registration system seamlessly integrates with the online directory, making it quicker and easier for the public to find a service provider's current designation.

As detailed above, the Copyright Office has confirmed that a substantial amount of the designated agent information currently listed in the Office's directory is inaccurate or out of date. To ensure that the new electronic directory is accurate and up to date, all service providers seeking to comply with 17 U.S.C. 512(c)(2), including those that have previously designated an agent using the paper process under the Office's interim regulations, are required to submit new designations through the electronic system by December 31, 2017. Moreover, the Office made clear that “[i]nterim designations filed pursuant to these interim regulations will be valid until the effective date of the final regulations. At that time, service providers wishing to invoke section 512(c)(2) will have to file new designations that satisfy the requirements of the final regulations, which will include the payment of the fee required under the final regulations.”

While service providers must file new designations in the electronic system, they will have over a year to do so. Previously filed paper designations will continue to satisfy the service provider's statutory obligations under section 512(c)(2) until the service provider registers electronically, or through December 31, 2017, whichever occurs earlier. For a further discussion of this aspect of the final rule, including responses to public comments, see “Phaseout of Paper Directory and Requirement to Register in Electronic Directory” below.

As under the old system, service providers will be required to keep their designations current and accurate by timely updating information in the system when it has changed (i.e., “amending” their designations). Additionally, to help ensure that designations in fact remain current and accurate, a service provider's designation will expire and become invalid three years after it is registered with the Office, unless the service provider renews such designation by either amending it to correct or update all relevant information or resubmitting it without amendment to confirm the designation's continued accuracy. This constitutes the requirement to periodically “renew” a designation. Either amending or resubmitting a designation, as appropriate, through the online system begins a new three-year period before such designation must be renewed. The new system, which will include automated reminders to service providers to review and renew their designations, is designed to encourage effective compliance with the requirements of section 512(c)(2). It will also better serve the public by helping to ensure that service providers maintain current information about their designated agents, including up-to-date contact information, on file with the Copyright Office, as Congress intended. For a further discussion of these aspects of the final rule, including responses to public comments, see “Amending and Renewing a Designation” below.

A. Registering a Service Provider and Designated Agent

Creating a Registration Account. In order to access the online registration system, a service provider must establish an account that will be used to log into the system and register itself and its designated agent. There is no charge to establish a registration account. Registration of any designation with the Office, including any subsequent amendment or resubmission (see “Amending and Renewing a Designation” below) must be made through such an account. To set up a registration account, the service provider must select a login ID and password, and provide the first name, last name, position or title, organization, physical mail address, telephone number, and email address of two representatives of the service provider who will serve as primary and secondary points of contact for purposes of communications with the Copyright Office. These representatives will receive automated confirmation emails generated by the system and correspondence from the Office, such as notices that a designation needs to be renewed and other communications about the system or account. The Office may also contact these individuals if there are any questions about the designation or registration account. These individuals' identities and contact information will not be made publicly available in the online directory and are not required to be listed on service provider Web sites, as the Office is requiring this information pursuant to the Register's statutory authority to “maintain” the directory, not under her authority to require additional contact information for inclusion in a service provider's designation. The Office's ability to communicate with these individuals is essential to the functioning and continued usability of the registration system and directory.

The Office notes that one commenting party asked that an email address for the individual who actually registered the designation be made available in the public directory. The Office declines to adopt this suggestion, as it is not apparent how this information would further the statutory purpose of the directory, which is to ensure that copyright owners can send notifications of claimed infringement to the designated agent of a service provider (rather than the individual who may have registered that agent).

In the NPRM, the Office mentioned its willingness to consider allowing a service provider to delegate responsibility for managing the registration process or otherwise administering its account to a third-party entity. The Office noted a potential concern with the accuracy of the required information if the information is not supplied by the service provider itself. Only one commenter echoed this concern, suggesting that a third party might also fail to follow the directions of the service provider. Other commenters disagreed with that view, arguing that delegation to third parties is more efficient and would be particularly helpful to smaller service providers with minimal staffing. They explained that third-party firms that provide assistance to service providers have developed the expertise to accurately and efficiently comply with regulatory requirements. Furthermore, they contended that third parties have every incentive to be accurate so as to establish a positive reputation to retain and grow their client base.

After considering these competing comments, the Office finds no compelling reason to deny a service provider the option of hiring a third party to manage its designation on its behalf, so long as the service provider is willing to accept the risk that it could lose the safe harbor protections of section 512 if such third party fails to provide accurate information and maintain an up-to-date designation at the Copyright Office. In light of this conclusion, the electronic system has been designed to facilitate third-party management of service provider designations. In particular, a single registrant is able to use a single account to designate agents (and amend and resubmit designations) for multiple service providers.

Registering a New Designation. Once a registration account has been created, an authorized user can log into the account to register a service provider's designation with the Office by providing the information requested by the system, which is described in detail in the section below, “Information Required for Service Providers and Designated Agents.”

Related Service Providers. An issue that the Office considered in designing the new system was whether related or affiliated service providers that are separate legal entities (e.g., parent and subsidiary companies) should be permitted to file a single, joint designation. Under the interim regulations, related companies were deemed to be separate service providers and thus required to file separate designations. The Office has received occasional complaints from service providers about the inefficiency of this practice. The NPRM noted the Office's receptiveness to allowing joint designations, but also discussed some of the difficulties it could pose. Many commenters favored allowing joint designation of related service providers, perceiving it as more efficient and less costly. One commenter opposed it, stating that the directory's accuracy would be better preserved by continuing to require separate designations.

After reviewing the comments and working with the Library's software development team, the Office has concluded that permitting joint designations as originally conceived in the NPRM would needlessly complicate the online registration system and would also require a significantly more complex and costly development effort. As explained above, the Office has designed the system so that a single account user can register and manage designations for multiple service providers. Thus, a parent company can manage the designations of all of its subsidiaries through one central account should it so choose. The ability of a single registrant to manage multiple designations, combined with the modest fee for registration, set at $6 (see “Fees” below), should largely address the concerns that would have been addressed by permitting joint designations. Accordingly, under the final rule, as under the interim rule, related or affiliated service providers that are separate legal entities are considered separate service providers, and each must have its own separate designation.

B. Information Required for Service Providers and Designated Agents

The Office has determined that the information required from service providers through the online registration system will remain, for the most part, the same as has been required under the interim regulations. A service provider is required to supply its full legal name, physical street address (not a post office box), telephone number, email address, any alternate names used by the service provider, and the name, organization, physical mail address, telephone number, and email address of its designated agent. These requirements are described in more detail below. Although the system requires contact information for the service provider, the designated agent, and the primary and secondary contacts for the registration account, the Office notes that the same person may serve in multiple roles so long as the primary and secondary contacts associated with the registration account are different people.

Service Provider's Identity and Alternate Names. The NPRM provided that in addition to the legal name of the service provider, the Office would require a service provider to list any alternate names under which it is doing business (as required under the interim regulations), including any names that the service provider would expect members of the public to be likely to use to search the directory for the service provider's designated agent. The NPRM explained that such names should enable a copyright owner to identify the service provider and its designated agent.

The Office has modified this provision to clarify that the requirement to provide alternate names is not limited solely to names under which a service provider is doing business, such as a “d/b/a” name. Rather, service providers must list all alternate names that the public would be likely to use to search for the service provider's designated agent in the directory, including all names under which the service provider is doing business, Web site names and addresses (i.e., URLs, such as “_.com” or “_.org”), software application names, and other commonly used names. The purpose of this requirement is to identify the service provider sufficiently so that the public can locate the service provider's designated agent information in the directory.

Separate legal entities, however—such as corporate parents or subsidiaries—are not considered alternate names. As noted above, each separate legal entity must have its own separately registered designation (though such separate designations may be managed by a single user through a single registration account).

Some commenters noted that it could be burdensome to list all of a service provider's Web sites in the system. The Office does not believe that such a requirement is unduly onerous, especially when weighed against the benefits of allowing the public to search the directory using Web site names or addresses rather than the corporate names of service providers, which may not be well known. But to facilitate compliance with the alternate names requirement, the system is designed to allow names to be uploaded in bulk using an Excel spreadsheet, in addition to being entered one at a time. Once entered or uploaded, the list can be modified as necessary to reflect new and/or discontinued names. These factors should significantly diminish any potential burden associated with providing alternate names.

Contact Information for the Service Provider. As under the interim regulations and proposed in the NPRM, the Office is continuing to require service providers to supply a physical mail address, pursuant to the Register's authority under section 512(c)(2) to require any additional contact information the Register deems appropriate. As under the interim regulations, a service provider's physical mail address will continue to be made public through the online directory and remains part of the information that a service provider is required to display on its Web site. Furthermore, as the NPRM proposed, the Office is requiring that the physical mail address be a street address, and not a post office box. The rationale for this requirement is that there are circumstances where it is important for a copyright owners to be able to physically locate the service provider (e.g., for accurate identification of the service provider or to serve a legal notice). Two commenters supported this aspect of the proposal, and none objected.

In addition, pursuant to the Register's separate authority to issue regulations necessary to “maintain” the public directory, the Office is now also requiring service providers to provide a telephone number and email address, solely for use by the Office for administrative purposes essential to the functioning and continued usability of the registration system and directory—for example, to send system confirmations, renewal reminders, or other notices about its designation or the system itself. A service provider's telephone number and email address will not be shown in the public directory, and are not required to be displayed on the service provider's Web site.

Agent's Identity. Section 512(c)(2)(A) specifies that to invoke the limitation of liability provided under subsection (c), the service provider must provide “the name, address, phone number, and electronic mail address of the agent.” Under the interim regulations, the Office initially required the service provider to provide the name of a natural person to act as the service provider's designated agent. As a result of concerns that personnel changes could inadvertently render the designation of a natural person obsolete, however, the Office has subsequently allowed service providers to designate a specific position or a particular title (e.g., “Copyright Manager”), rather than an individually named person, as its agent.

The NPRM proposed continuation of the practice of allowing service providers to designate an agent either by name or by position or title. The NPRM also stated, however, that the Office was not inclined to permit a service provider to designate an entity generally (e.g., a law firm or copyright management agency). The Office expressed concern that notices of claimed infringement addressed to a general entity, rather than a natural person or specific title, might be overlooked or not attended to in a timely fashion, and that this concern is reduced when a service provider designates a specific position or title at an entity or a natural person as its agent, particularly when that role is associated with a specific email address. The NPRM further proposed, however, that service providers be permitted to designate an agent either within the service provider's organization itself or at an unrelated third party.

There was widespread support among commenters for maintaining the Office's current practice of allowing service providers to designate agents by position or title rather than an individual's proper name, both to address the problem of personnel changes and to avoid misuse of personal information. Moreover, none of the commenters opposed the Office's position that an employee of either the service provider or a third party could serve as a designated agent. There was debate, however, concerning whether it would be appropriate to name a third-party entity as a whole (e.g., a law firm or copyright management agency) as an agent. One trade organization representing copyright owners was against it, arguing that it would increase the likelihood that notices are not handled expeditiously and further complicate the ability of rights holders to efficiently contact the individual responsible when there are failures to act on notices, to follow up on the handling of notices, or to take other action. But Public Knowledge, a public advocacy organization, urged the Office to allow designation of third-party entities as a whole, noting that regardless of whether the designated agent is a person, title, or entity, it does not change the service provider's obligation to respond to notices expeditiously. Public Knowledge further contended that section 512 does not limit designations to specifically identifiable persons, and that at least one federal court has suggested that designating an entire department as an agent satisfies the statute.

After considering the comments and reevaluating its initial inclination with respect to the naming of an individual or position versus a department or entity as a whole to serve as a designated agent, the Office has concluded that any one of these appears to be a reasonable interpretation of the statute. The Office believes, contrary to its initial inclination, that the sounder policy is to allow a service provider to designate as its agent an individual (e.g., “Jane Doe”), a specific position or title held by an individual (e.g., “Copyright Manager”), a specific department within the service provider's organization or within a third-party entity (e.g., “Copyright Compliance Department”), or a third-party entity generally (e.g., “ACME Takedown Service”). The Office agrees with the point made by Public Knowledge that service providers are already obligated by statute to respond “expeditiously” to take down requests; this is true whether they rely on a particular individual, a corporate department, or a third-party entity to process their notices. The Office is also cognizant of the current realities of the notice-and-takedown system, where some large service providers now receive millions of takedown requests per day, making a requirement that a designated agent be a single person simply infeasible. Indeed, the designation of a single person to receive all takedown requests for further processing by others would not allay the Office's original concerns of overlooked notices and untimely action, but might well work against the efficient processing of such requests.

The Copyright Office emphasizes, however, that these changes to the rule are in no way intended to excuse the loss or mishandling of notices addressed to departments or entities rather than individuals, or to otherwise absolve service providers from their statutory responsibility to “respond[ ] expeditiously” to notices of claimed infringement. Rather, it is the Office's hope that by making these practical accommodations—which may be especially useful for service providers that receive large volumes of notices—the rule will in fact enable greater attention to notices and faster response times.

Contact Information for the Designated Agent. In addition to the agent's identity, the amended regulations continue to require a designated agent's physical mail address, telephone number, and email address. Section 512(c)(2)(A) requires this information to be supplied to the Copyright Office and also to appear on the service provider's Web site. The interim rule's requirement of a facsimile number, however, is being discontinued due to the fact that faxing has become a relatively obsolete technology.

Because an individual serving as a designated agent may be located outside of the service provider's organization, the Office is now also requiring that the designated agent's organization be identified, when applicable. If the designated agent is an individual, a position or title, or a department within a service provider, the agent's organization would simply be the service provider. If the agent is an individual, position or title, or a department at a third-party entity, the agent's organization would be the legal name of that third-party entity. If the agent is a third-party entity as a whole, then the name of the agent and the organization fields should have the same information. If the agent is an individual acting outside of the context of any organization, the field can be marked “None” or “N/A.”

The NPRM proposed permitting post office boxes to serve as a designated agent's address due to concerns about agents' privacy and safety, particularly where an agent's only address is a home address. A number of commenters echoed these concerns. Others argued that the agent is a public-facing position and rightsholders need to be able to contact the agent directly to report claims of infringement, including by street address if telephone and email efforts prove insufficient. They further claimed that using a post office box provides a layer of anonymity that is not warranted, and that requiring a street address better ensures that the agent is a real person and the information provided in the designation is reliable.

After weighing these conflicting viewpoints, the Office has determined that, consistent with the proposed rule, the final rule will allow a designated agent to specify a post office box and will not require a street address. Irrespective of the safety and privacy concerns of designated agents, requiring a physical street address is unnecessary to achieve the goals of the statute. To satisfy section 512(c)(2), service providers are required to supply accurate and reliable information for their designated agents, regardless of whether their agents are using a street address or post office box. While a post office box may not be as direct of a point of contact as a street address, copyright owners may still contact the designated agent by telephone or email. Moreover, allowing use of post office boxes may actually allow for faster and more efficient processing of mailed notices. For example, a large corporate mailroom receiving a broad mix of correspondence might be slower in identifying time-sensitive notices and delivering them to the responsible person within the organization. In contrast, a post office box could be dedicated solely to the receipt of DMCA takedown requests and could be checked directly by the agent.

Signature and Attestation. The Office has eliminated the signature requirement contained in the interim rule. Because all designations in the online registration system require the creation of a user account, as well as payment via Pay.gov (operated by the U.S. Department of the Treasury) with a credit or debit card or a bank account, the system reasonably verifies and authenticates the identity of the person designating the agent (or amending or resubmitting such designation). The registration system as designed by the Library requires each account to be protected by a twelve character password, and the Pay.gov system additionally requires a credit card or bank account holder name, if a credit or debit card, a billing address and card number, and if a bank account, the account and routing numbers.

Furthermore, in designating an agent, or amending or resubmitting such designation, the online registration system requires the account user to attest both to having the authority of the service provider to take that action and to the accuracy and completeness of the information being submitted to the Office by checking a box acknowledging the user's agreement to such an attestation. The transaction cannot be completed without such attestation.

C. DMCA Designated Agent Directory

The new registration system described is directly tied to the public, searchable DMCA designated agent directory. Information submitted by service providers through the registration system will automatically populate in the directory, providing fast and efficient public access to designated agent information. Members of the public will be able to access the directory through the Office's Web site and can search the directory either by service provider name or alternate name to obtain contact information for a designated agent. The search results will show not only service provider names and alternate names matching the search query, but will also indicate whether the agent designation is still active.

Prior Versions of Electronic Designations. The NPRM asked for comment on whether earlier versions of electronic designations should be made available, free of charge, through the public online directory of designated agents, or whether those versions should instead be kept offline, and made available to the public only upon request to the Copyright Office. Some commenters argued that listing prior versions of designations could create confusion for users as to which entry is current and might result in notifications being sent to the wrong person. Others were concerned with the additional cost of developing this functionality. On the other side, some commenters asserted that having immediate access to prior versions of designations would make it easier to determine whether a service provider qualified for safe harbor protection and might also assist scholars in certain research pursuits. Some commenters also suggested that if prior versions are included, they be clearly marked as such or maintained in a separate part of the directory.

Having weighed these comments, the Office has decided to make prior versions of electronic designations available in the online directory so that the public can access them immediately and free of charge. At present, the Office plans for the directory to contain prior versions going back for up to ten years. Each time a designation is amended or resubmitted, the system creates a new version of the designation. Additionally, new versions are created whenever a designation, after having expired or been terminated, is reactivated. Because the earlier records are automatically maintained by the system, there is little added cost to the Office to permit users to access this information. Such historical information may be useful, for example, in a litigation or research context.

In addition, the Office has designed the directory layout to clearly indicate whether a designation is currently active or historical, and any results from a search of the directory will initially only display the most recent version of a designation. From there, a user can then navigate to prior versions of that designation. Accordingly, there should be little confusion about the status of a particular designation. The anticipated ten-year time frame was selected due to concerns that displaying more than ten years of records could become voluminous and contain large amounts of outdated information that is simply irrelevant for the vast majority of users. Electronic designations filed before that ten-year period will be maintained consistent with the Office's record retention policies, and would be made available via a request for copies of records pursuant to 37 CFR 201.2.

Prior Versions of Paper Designations. For the same reasons just discussed, following the transition from the current paper-generated directory to the new electronically-generated directory (see “Phaseout of Paper Directory and Requirement to Register in Electronic Directory” below), the Office plans to continue to make the paper-generated directory available on the Office's Web site for ten years following the conclusion of the transition period. After this time, paper designations filed pursuant to the interim regulations will be maintained consistent with the Office's record retention policies, and made available via a request for copies of records pursuant to 37 CFR 201.2.

D. Amending and Renewing a Designation

Amending a Designation. It is prudent for service providers to keep the information in their designations, both on their Web sites and with the Office, current and accurate, as courts may find that inaccurate or outdated information constitutes a failure to comply with the statutory requirements necessary for invoking the limitations on liability in section 512. The new online registration system permits a service provider to review the accuracy and currency of the information in its designation and to amend the designation at any time. The fee for amending a designation will initially be set at $6 (see “Fees” below). Upon successful receipt of payment, the system will confirm, both in the system and via email, that the designation has been updated in the public directory, and has therefore been renewed as of that date (see “Periodic Renewal of Designations” below).

Periodic Renewal of Designations. As discussed above (see “Background”), the Office has found that an extremely high number of designations in the current directory appear to contain inaccurate or outdated information, or are for defunct service providers. In order to help maintain the accuracy and utility of the online directory of designated agents made available to the public, and to ensure that service providers do not inadvertently lose the protections of the section 512 safe harbors, the NPRM proposed requiring service providers to periodically review their designations and, as necessary, update them to correct inaccurate or outdated information, or confirm their continued accuracy by resubmitting them through the online system. Under the proposed rule, the renewal period was two years. The NPRM also proposed that the online registration system would send out reminder emails ahead of the renewal deadline and explained how that process might work. Lastly, the NPRM proposed that a failure to renew would result in the expiration of the designation.

A number of commenters opposed the requirement of periodic renewal. Opponents offered several arguments for this positon. They argued that once a service provider initially makes a valid designation, that designation should remain effective unless and until it is amended by the service provider. Opponents claimed that a renewal requirement is contrary to the statute because section 512 does not require service providers to take any further action so long as their designations remain accurate and up to date, and the Register is only authorized to specify additional contact information required for new designations—not to impose additional requirements on previously registered designations. They argued that the statute already motivates service providers to keep their designations current and accurate because failing to do so can result in a loss of safe harbor eligibility independent of compliance or noncompliance with any Copyright Office-imposed renewal requirement. They further stated that such situations should be adjudicated in court, and that the Office should not categorically strip service providers of safe harbor eligibility for failing to renew their designations.

Opponents also complained that the proposed renewal requirement was an unreasonable burden, especially on smaller service providers. Opponents further argued that the potential loss of safe harbor protection would be a disproportionally severe consequence for a failure to renew, especially when the failure was due to inattention or clerical error rather than purposeful conduct. They opined that, even with an emailed reminder, a service provider might inadvertently fail to renew its designation and should not be punished for doing so.

On the other side, trade associations representing both copyright owners and a coalition of large internet companies, including broadband providers and technology companies like Amazon, eBay and Google, agreed with the NPRM that renewal is important to address the issue of stale information and ensure the continued accuracy of the directory. These associations also agreed that two years is an appropriate time frame for the requirement. Furthermore, the Department of Commerce's Internet Policy Task Force examined this aspect of the Office's proposal and expressed no objection to it; indeed, it stated that it “support[ed] the Copyright Office's efforts.”

Having considered the competing views of stakeholders concerning the renewal requirement—as well as its own research into the accuracy of the listings under the existing paper system without a renewal requirement—the Office concludes that in order to “maintain a current directory” of designated agents, as the Register is obligated to do under section 512(c)(2), the Office should adopt a periodic renewal requirement. That said, in view of the concerns expressed by some regarding the burden of renewal—particularly with respect to smaller entities—the Office believes it is reasonable to extend the renewal period from two years to three.

A service provider may fulfill the periodic renewal requirement by reviewing its existing designation and either amending it to correct or update information or, if the information is still accurate and no changes are necessary, simply resubmitting it through the online system without amendment—a process that should take no more than a few minutes. The fee to amend or resubmit a designation in connection with the renewal requirement will initially be set at $6 (see “Fees” below).

The final rule also makes clear that the three-year renewal period will be reset after a service provider either amends or resubmits its designation through the online system. To illustrate, if a service provider registers a new designation on January 1, 2017, and thereafter makes no amendment to that designation, it must renew the designation prior to January 1, 2020. But if that service provider instead amends its initial designation on March 1, 2019 to update it with new information, the three-year renewal clock is reset, and March 1, 2022 becomes the date prior to which the service provider must renew the designation.

To alleviate any concern that a service provider may accidentally forget to renew its designation during the three-year period, the online registration system will automatically generate a series of reminder emails well in advance of the renewal deadline to every email address associated with the service provider in the system (including the primary and secondary account contacts, the service provider, and the designated agent).

Should a service provider fail to renew within the allotted time, the designation will expire and become invalid, resulting in its being labeled as “terminated” in the directory. The primary and secondary account contacts, service provider, and designated agent will be notified of this. A service provider whose designation has expired, however, will be able to reactivate the expired designation by logging into the system and following the same process as a renewal (including payment of the applicable fee). Once the process is complete and payment has been successfully received, the designation will no longer be invalid and will be relabeled as “active” in the directory. Reactivation of a designation will create a new version of the designation in the historical record (see “Prior Versions of Electronic Designations” above). Thus, the directory will show a gap in time between expiration and reactivation, during which the service provider had no active designated agent listed in the Office's directory.

The Copyright Office finds the arguments made against the renewal requirement unpersuasive. First, imposition of a renewal requirement is within the authority delegated to the Office by the Copyright Act. Section 512(c)(2) not only requires service providers to maintain up-to-date information, but explicitly obligates the Register of Copyrights to “maintain a current directory of agents available to the public.” The Register's obligation to maintain a “current directory” exists separate and apart from the obligations placed on service providers themselves. Accordingly, the Register has the authority to issue rules designed to ensure that the directory remains “current.”

Second, contrary to opponents' arguments, relying on service providers' general statutory obligation to maintain accurate designations is an inadequate means of ensuring the directory remains current. For instance, the Office's interim regulations have long obligated service providers to affirmatively notify the Office when they terminate operations. But, as discussed above, this obligation is not often satisfied. Moreover, as also discussed above, even as to service providers that remain in business, a significant number of designations in the existing directory are out of date or inaccurate.

One commenter stated that the presence of designations by defunct service providers is harmless because the public will not be searching for them. But there are many cases where this would not be true. For instance, as discussed in the “Conflicting Designations” section below, where one service provider is purchased by or merges with another service provider and fails to terminate its designation in the Copyright Office's directory, there could be conflicting information in the directory (e.g., duplicate entries referencing web properties that were transferred in the sale) absent some regular process to clear out inactive designations. Similar confusion could result if a defunct domain name is purchased by another entity, who then files a conflicting designation in the system. In any event, the commenter's critique ignores the high prevalence of noncompliant designations for service providers that continue to be in business.

Third, with respect to the burden imposed and severity of the consequences for the failure to renew, opponents' arguments are significantly overstated. Renewal—which will initially cost a mere $6, take minutes to complete, and need only be attended to when information has changed or once every three years—should be a manageable proposition for even the smallest of service providers. Nor does the rule create “a trap for the unwary” as some opponents allege; as explained above, the system is designed to send a series of reminders to all email addresses associated with a service provider, including its designated agent. If, after those multiple reminders, a service provider fails to renew its designation, it can hardly be said to have let its designation lapse unwittingly. In addition, given that service providers already routinely manage an array of other recurring obligations that are integral to their businesses—including business licenses, software licenses, trademarks, web hosting, leases on web domain names, real estate leases, and insurance policies—the Office cannot see how such a renewal requirement could be viewed as excessively burdensome. At the same time, such a requirement carries significant benefits both for the public and for the service providers themselves, by ensuring that up-to-date information is maintained in the system, and that information from defunct service providers is cleared out of the system.

Indeed, while opponents highlight the consequences of failing to comply with the renewal requirement, the fact is that opponents' preferred solution—which would rely on service providers to remember to update their information with the Copyright Office—is more likely to lead to negative consequences. Under the current regime, a service provider (particularly a smaller or less sophisticated one) might file its designation with the Copyright Office once, and easily forget to amend the designation as its information changes, sometimes years later. As a trade association opposing the renewal requirement correctly observed, a “failure to comply with the existing requirements [of section 512] results in the loss of service providers' safe harbor.” That is not a better result for service providers.

E. Phaseout of Paper Directory and Requirement To Register in Electronic Directory

As of the effective date of this rule, the Office will no longer accept paper designations and amendments; service providers must use the online system to submit designations. Furthermore, service providers that have previously designated agents with the Office under the interim regulations must submit new designations through the electronic system. The final rule gives service providers a generous period—until December 31, 2017—to register their designations in the online system. Previously filed paper designations will continue to be effective until the service provider has registered using the new online system or through December 31, 2017, whichever is earlier.

As discussed above (see “Prior Versions of Paper Designations” above), the Office will continue to maintain the old paper-generated directory on its Web site during the transition period and for ten years following it, in addition to the new electronically-generated directory. During the 13-month transition period—that is, through December 31, 2017—members of the public will need to search both directories for designated agent information, since a service provider may have a valid designation in either. To the extent there is a discrepancy between designations registered in the old and new systems, the information in the new directory will control. As of January 1, 2018, all paper designations will become invalid and only those designations made through the online registration system will satisfy the statutory requirement for designating an agent with the Copyright Office.

The Office is requiring service providers who have previously filed a paper designation to register in the electronic system for two principal reasons. First, as discussed above, the old paper-generated directory contains a significant amount of outdated information, including information about service providers that no longer exist. The electronic submission requirement will encourage service providers that have neglected to update their designations to provide updated information as necessary. Second, for the Office to migrate information from the old directory into the new directory would require extensive manual review and data entry, an effort that would be extraordinarily burdensome and expensive for the Office to undertake. The old directory consists of approximately 23,300 designations, all in PDF format. It would be a significant drain on the Copyright Office's limited resources to have Office personnel manually transfer information from the PDFs into the new database. And, after all of this effort, the end result would be a new electronic database full of obsolete and erroneous records.

The arguments made by commenters opposed to the requirement to re-register in the electronic system were essentially the same as those made by commenters opposed to renewals: It is burdensome, it is a trap for the unwary, it imposes potentially harsh consequences for noncompliance, and the Office lacks authority to implement it. But, as the, the Office made clear in its interim regulations in 1998 that “[i]nterim designations filed pursuant to these interim regulations will be valid until the effective date of the final regulations. At that time, service providers wishing to invoke section 512(c)(2) will have to file new designations that satisfy the requirements of the final regulations, which will include the payment of the fee required under the final regulations.” Therefore, it was always understood that there would be a requirement to re-register upon the adoption of a final rule. Moreover, as noted, requiring electronic registration is an effective means of ensuring that the Copyright Office can fulfill its statutory duty of maintaining a “current” directory of designated agents. It is not a trap for the unwary; service providers will have over a year to submit their designations through the online process. In addition, the Office plans to engage in public outreach activities to ensure that service providers are aware of the new system and the electronic submission requirement.

F. Fees

In keeping with the specific fee-setting authority in section 512(c)(2), the NPRM proposed establishing fees to designate agents. It also proposed continuing to charge additional fees for alternate names. Following the NPRM, the Office issued the Fee NPRM, which proposed reducing the current registration fee from $105 (plus an additional fee of $35 for each group of one to ten alternate names used by the service provider), to a flat fee of $6 per designation—whether registering a new designation, or amending or resubmitting a previously registered designation. The Fee NPRM explained that the old fee reflected the cost to the Office of receiving, reviewing, scanning, and posting the paper designations submitted by service providers, which has been a largely manual process. The Office believed that based on an analysis of the cost of operating and maintaining the new electronic system, the fee to designate an agent to receive a notification of claimed infringement could be much lower, and should be established at $6 per designation. The Office believed that an additional fee to include alternate names with a designation was not warranted because the Office did not foresee appreciable additional costs due to service provider submission of alternate names through the online process. The Office explained that the significantly lower proposed fee reflected the far greater efficiency of the electronic system for the Copyright Office.

Although some comments filed in response to the NPRM argued against imposition of any fee, or for the imposition of a reduced fee, in certain cases, those particular points were not renewed in response to the Fee NPRM, likely due to the modesty of the fee adopted. Significantly, no commenter specifically argued against setting the fee at $6. In any event, the Office sees no reason to provide reduced fees or no fees for renewals, amendments, or resubmissions, which would result in needing to charge higher fees for initial designations in the new system. The Office declines to structure the fee this way, as it is fairer to impose the ongoing costs of the system on those service providers that continue to use the system, rather than requiring a higher upfront fee regardless of how long a service provider maintains a designation. Therefore, pursuant to the Register's authority under sections 512(c)(2) and 708(a) of title 17, and for the reasons described in the Fee NPRM, the Office adopts the $6 fee as originally proposed.

G. Miscellaneous Issues

Conflicting Designations. As discussed in the NPRM, there is a potential concern with duplicative entries in the directory that can arise when a service provider transfers one of the Web sites it controls to another company, but fails to update its designation to remove that Web site from the list of alternate names. As a result, when the purchasing company registers or updates its designation with the Office and lists the purchased Web site as an alternate name, there may be conflicting entries in the public directory associated with that alternate name—one pointing to the seller's designation and the other pointing to the purchaser's designation. A similar problem can occur when a service provider itself is acquired, and the acquired service provider's designation is not terminated, either because the acquired service provider has no incentive to do so itself, or because the purchasing entity does not have access to the acquired service provider's designated agent registration account. These scenarios can create confusion if copyright owners find two different agents identified in the directory for the same Web site or same service provider.

The NPRM proposed two potential solutions to this problem. The first option was to simply allow both designations to exist in the online directory until expiration of the renewal period of the old designation; at that time, the old designation would either expire or be updated with accurate information. In the meantime, people seeking the identity of and contact information for a service provider's agent could find two inconsistent listings for the service provider's designated agent. The NPRM suggested that users could cover themselves by serving a notice of claimed infringement on both the old and the new designated agent. The second option was to include, as part of the final rule, a requirement that the seller, who has control of the existing entry in the online registration system, amend the designation or terminate it as appropriate. Commenters offered competing ideas for how best to resolve the issue of conflicting designations. Having weighed these comments, the Office concludes that it should not impose any requirements on a buyer or seller to update or terminate the prior designation. The Office sees no good way to enforce such a requirement, and remains disinclined to involve itself in policing the system for conflicting entries. As noted above, the Office also believes that the concern about conflicting entries is mitigated by the periodic renewal requirement, as the outdated designations will be updated or expire after three years. But to help minimize conflicting entries, the Office has designed the system to warn a registration account user if he or she attempts to register a designation for a service provider with the same name as a service provider that has already been registered in the system. The system will not, however, bar the creation of the new designation, as it is possible for two service providers to legitimately have the same name.

Purported Abuse of the DMCA Notice-and-Takedown System. Some commenters requested that the Office use this opportunity to take specific steps to address various alleged “ongoing abuses” of the DMCA notice-and-takedown system by copyright owners, such as where it is used (1) in connection with peer-to-peer file sharing activities where the material alleged to be infringed does not reside on a service provider's system or network, (2) in connection with trademark infringement, where the process does not apply, (3) in situations where material is protected by fair use, and (4) as an abusive litigation tactic in “copyright troll” lawsuits. They noted that such misuse significantly burdens service providers, making it more difficult to respond to legitimate notices and slowing down that process. They specifically asked that the Office present users of the online directory with a prominent warning and informational notice describing proper use of the notice-and-takedown process, warning against improper use, and alerting users to the potential penalties under section 512(f) for making material misrepresentations.

The Office believes that this rulemaking and the online directory are not the proper forums to attempt to police rights holders who send improper notices or otherwise misuse the process. The Office notes that in fact, such issues are among those currently being reviewed in the Office's pending study of section 512. The Office has, however, included information on the front page of the system describing the statutorily required elements for notices.

Clarity and Readability Edits. In addition to adjustments to the NPRM's proposed regulatory language reflecting the foregoing conclusions, the Copyright Office has made additional non-substantive modifications for purposes of clarity and readability.

List of Subjects in 37 CFR Part 201

• Copyright

Final Regulations

For the reasons set forth above, the Copyright Office amends 37 CFR part 201 as follows:

PART 201—GENERAL PROVISIONS

1. The authority citation for part 201 continues to read as follows:

Authority: 17 U.S.C. 702.

2. Amend § 201.3 by revising paragraph (c)(17) to read as follows:

3. Revise § 201.38 to read as follows: