(December 12, 2016 – Jennifer Ortega, Jarret Cummings) On November 1, the U.S. Copyright Office issued its new “final rule” for “Designation of Agent to Receive Notification of Claimed Infringement.” This regulation modernizes and governs the system by which online service providers, including colleges and universities, submit information to the Office on the individuals (i.e., agents) they designate to receive copyright infringement claims. The designation of such agents is required under the Digital Millennium Copyright Act (DMCA). The rule went into effect on December 1, so all new filings of agent designations must be completed through the new electronic system. In addition, all previously filed agent designations will have to be refiled through the electronic system by December 31, 2017. Online service providers will also have to renew their filings every three years.
The DMCA requires the Copyright Office to maintain a current directory of agents who have been designated by online service providers to receive notifications of DMCA infringement claims related to activity on their networks. All online service providers as defined by the DMCA who wish to take advantage of the safe harbor protections outlined within the law must file this information. The Copyright Office issued the current rule to facilitate the operation and use of its modern electronic platform, which enables more efficient access to and maintenance of DMCA agent information. The regulation also governs service provider use of the new system and updates what is required by service providers to remain compliant with the law.
Under the new rule, for example, all “Designation of Agent” filings must list “all alternate names that the public would be likely to use to search for the service provider’s designated agent in the Copyright Office’s online directory of designated agents, including all names under which the service provider is doing business, Web site names and addresses (i.e. URLs), software application names, and other commonly used names.” This provision has the potential to raise some confusion when considered in light of higher education institutions’ highly distributed organizational structures and web environments.
While the DMCA Designated Agent Directory site provides helpful information about the transition to the new electronic system and related requirements, it does little to shed light on the scope of the “alternate names” provision. Likewise, the DMCA Designated Agent Directory FAQs largely quote the text of the regulation on this point. The background section of the Federal Register notice for the new rule (see p. 75700 of the notice, which is p. 6 of the 14-page PDF) offers some context, however, which may be useful in consulting with university counsel about any concerns on this point. The relevant background text is provided below for reference.
On the plus side, the transition to the electronic agent designation system comes with a dramatic drop in the registration fee, from $105 plus an additional $35 per group of 1-10 alternate names to a flat $6 per registration. In addition, the new system will provide automatic reminders to a provider’s account contacts (which are distinct from the DMCA designated agent) when it is time to renew the provider’s designated agent filing (which must now happen every three years). EDUCAUSE will continue to watch for additional information of interest to members about the scope and application of the new rule as well as the electronic system that supports it.
Federal Register, Vol. 81, No. 211, p. 75700
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.
Jen Ortega serves as a consultant to EDUCAUSE on federal policy and government relations. She has worked with EDUCAUSE since 2013 and assists with monitoring legislative and regulatory proposals across a range of policy areas, including cybersecurity, data privacy, e-learning, and accessibility.
Jarret Cummings is director of policy and government relations at EDUCAUSE.