Copyright Office Fucks Over Thousands Of Sites With Plans To Remove Their DMCA Safe Harbors
from the so-dumb dept
If you run any kind of website it's super important that you file with the Copyright Office to officially register a DMCA agent. This is a key part of the DMCA. If you want to make use of the DMCA's safe harbors -- which create a clear safe harbor for websites to avoid liability of infringing material posted by users -- then you have to first register with the Copyright Office. Larger corporate sites already know this, but many, many smaller sites do not. This is why for years we've posted messages reminding anyone who has a blog to just go and register with the Copyright Office to get basic DMCA protections (especially after a copyright troll went after some smaller blogs who had not done so).A few months back, we noted, with alarm, that the Copyright Office was considering a plan to revamp how it handled DMCA registrations, which had some good -- mainly making the registration process cheaper -- but a really horrific idea of requiring sites to re-register every three years or lose their safe harbor protections. Despite many people warning the Copyright Office how this would be a disaster, on Monday the Office announced it was going ahead with the plan anyway, not even acknowledging that thousands of sites are likely to get fucked over by this move:
The United States Copyright Office has completed development of a new electronic system to designate and search for agents to receive notifications of claimed infringement, as required under the Digital Millennium Copyright Act (DMCA). Accordingly, the Office is publishing a final rule in the Federal Register tomorrow to implement that system, replacing an interim rule that the Office had adopted after the DMCA’s enactment. A prepublication version of the rule is available for public inspection here. The rule is effective on December 1, 2016, the date that the new online registration system and directory will be launched. In the meantime, users can begin to acquaint themselves with the new system by watching the video tutorials available here. Any service provider that has previously designated an agent with the Office will have until December 31, 2017, to submit a new designation electronically through the new online registration system.Got that? Even if you followed the law and registered before, if you don't re-register (and pay another fee), then you will be kicked off the list of registered DMCA agents, meaning that you will lose your DMCA safe harbors. Basically, the Copyright Office is announcing that it is kicking EVERY SINGLE site that registered for DMCA safe harbor protection OFF THE SAFE HARBOR LIST.. That's horrendous. You have until the end of 2017, but really, how many sites (especially smaller sites or one person blogs) who don't follow copyright law are going to realize they need to do this? This is a recipe for disaster, and is basically the Copyright Office giving a giant middle finger to the DMCA's safe harbors for the sites that need them the most: smaller blogs and forum sites.
The Copyright Office's stated reason for doing this is nonsensical. It complains about outdated information in its database:
Since the DMCA’s enactment in 1998, online service providers have designated agents with the Copyright Office via paper filings, and the Office has made scanned copies of these filings available to the public by posting them on the Office’s website. Although the DMCA requires service providers to update their designations with the Office as information changes, an examination of a large sample of existing designations found that 22 percent were for defunct service providers, while approximately 65 percent of nondefunct service providers’ designations had inaccurate information (when compared to the information provided by service providers on their own websites).The correct way to deal with this is to create a campaign to encourage sites to update their info -- not to kick everyone off. This is the goddamn Copyright Office, whose whole job is about "registering" information about people. Does the Copyright Office threaten to dump someone's copyright if a copyright holder's information is out of date? Of course not. That would be ridiculous. But it's now going to do that to any website that doesn't remember to constantly re-register a DMCA agent. This is a recipe for disaster, and for no good reason at all. And the idea that false or outdated info is a problem doesn't make much sense either. If a site has incorrect info, then they risk missing DMCA takedown notifications, meaning that they already face problems in not keeping their info up to date. The "solution" is not to make life worse for lots of other sites.
The final rule insists that this is no big deal because outdated info is "functionally equivalent to not designating an agent." However, as Eric Goldman points out, that's a total non sequitur. While it's true that those with outdated info may not have an official registration any more, that's no excuse for kicking off all those sites that do have valid registration. Those sites are fucked, for no reason other than the Copyright Office decided it has the right and power to just dump the entire list as of December 1.
As Goldman notes in his write-up of this clusterfuck, there's a simple solution here that the Copyright Office could have done, but didn't:
And when the Copyright Office disingenuously says the renewal requirement “should in many cases actually assist service providers in retaining their safe harbor, rather than serving to deprive them of it,” it mockably conflates its ability to communicate helpful information to registrants with draconian substantive policy effects. Here’s an alternative: send out the reminder notices but don’t make the consequences of non-renewal COMPLETE FORFEITURE OF THE DMCA SAFE HARBORS. Similarly, the analogies to other recurring obligations, like business licenses, ignore (1) the frequently less draconian consequences of non-compliance, and (2) the reality that many of these recurring obligations are nevertheless frequently mismanaged by both big and small companies.Goldman also notes another horrifying part of the plan. The Copyright Office -- ostensibly to "help" those sites who forget to renew their DMCA agent - will list those sites on a public website of "lapsed" safe harbor registrants. Except, it's likely that instead of "helping" those sites, it will actually just be presenting a target list for copyright trolls to go searching for any infringing material on any site with a lapsed safe harbor registration.
There are questions about what can be done here. It's possible with new management coming to the Copyright Office that it may reverse this move, but that seems unlikely. It's quite likely, however, that there will be some lawsuit over this, especially as the Copyright Office is single-handedly removing protections for a whole bunch of sites. Another option is that Congress could get involved, but that would likely create an even bigger mess (Congress touching copyright law -- especially anything to do with the DMCA's safe harbors -- is not likely to end well).
This just seems like yet another example (in a ridiculously long list) of how screwed up the Copyright Office is these days.
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Filed Under: 512 safe harbors, copyright, copyright office, dmca, dmca 512, dmca registration, safe harbor
Reader Comments
The First Word
“The correct way to do it
"The correct way to deal with this is to create a campaign..."No. The correct way is to give DCMA safe harbour to *all*. Blanketed. No registration required.
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Fuck you, pay us
A few months back, we noted, with alarm, that the Copyright Office was considering a plan to revamp how it handled DMCA registrations, which had some good -- mainly making the registration process cheaper
Which brings in more money:
A) A larger, one-time payment.
or
B) Smaller, but repeated payments.
Cheaper in the short term does not mean cheaper in the long term, changing it from a larger, single payment to a 'smaller' but repeated payment is likely to bring in quite a bit more money.
I'm not sure if it's blatant double-standards and stupidity, greed, or some delightful mix of the two but I think it's pretty clear that the Copyright Office is hellbent on screwing over a ton of people here and doesn't care in the slightest the damage they're going to cause.
That they're actually making a site of targets- oh my mistake, 'lapsed registrations' almost has me hoping that this is malice, because the alternative is truly staggering incompetence and/or idiocy, such that every single person involved should be fired and blacklisted from ever being put in charge of any decisions more important than deciding what to eat at the moment.
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Dumbest thing I have ever heard of.
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Cursing makes you look so cool.
Love,
The Internet
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Then again...
Would it?
Wouldn't that be a pretty great solution to the problem of "orphan works"? Not necessarily the best solution, maybe, and probably not after only three years, but definitely a solution.
Renew your copyright after, say, 17 years or so, or lose it. I wonder where I've heard of that before...
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I wish they would do this
To be honest I *wish they would do this*. Every 10-20 years if you don't re-register you copyright...you lose it. Of course they could add some type of buffer window for an appeal maybe, but overall this could actually be a HUGE benefit to wrestle back orphaned works while keeping the big dogs happy.
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The correct way to do it
No. The correct way is to give DCMA safe harbour to *all*. Blanketed. No registration required.
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Re: Then again...
Copyright cultists managed to change the law from registered works only to "everything" years ago - because they don't care about workable solutions and think they can profit by it. Probably their hands guiding this idiocy as well.
I suspect a BETTER idea would be to get Congress to apply that solution to DMCA registration:
- No idiots at the copyright office screwing things up
- No-on loses safe harbour
Problem solved.
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Dear [name],
Your DMCA Safe Harbor expired on [date]. Please send us a check for [amount] in order to bring your website back into DMCA compliance.
Failure to pay this amount promptly will result in multiple copyright actions against your firm. Please note that the U.S. Copyright law allows for penalties up to $150,000 per infringing work.
Sincerely,
John Steele, Paul Hansmeier, and Paul Duffy
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USPTO
https://www.uspto.gov/trademark/trademark-updates-and-announcements/uspto-now-issuing-courte sy-email-reminders
"On January 27, 2015, the United States Patent and Trademark Office ("USPTO") began sending courtesy email reminders of upcoming post-registration maintenance filing deadlines for §§8 and 71 declarations and §9 renewals to registration owners who have (1) "live" registrations on the date of sending; (2) provided a valid email address to the USPTO; and (3) authorized email communication. No reminders will be sent by regular mail, and no follow-up emails will be attempted for undeliverable emails."
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Re: Dumbest thing I have ever heard of.
There has been so much ass wiping with the Constitution that the original no longer even exists.
There is not a single constitutional right regarded with any significance by either the Federal Government or American Citizens.
What we have is an entire nation full of People that have taken everything for granted and do little to help each other.
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Re:
While foul language is not the best thing to participate in, I find that people getting their undies all up in a wad about it are quick and simple tools!
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...
Reading these two things together appears to suggest that the author of an anonymous blog is legally required to dox himself in order to avoid legal liability.
Surely that can't be right...
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Re:
Just look at the Kim Dotcom case if you need evidence that they see themselves as global enforcers of IP Law.
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I mean whats good for the goose is good for the gander.
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Who said there isn't money in copyright?
Now the gov't wants to make money off copyright.
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Re:
Trust me when I say, fuck you.
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Re: Re:
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Re: Re: Re:
Hey, I curse too. I just don't do it unprofessionally.
I curse professionally.
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It's all about making it hard for the little guys
It's about making it difficult - more in terms of paperwork, bother, and legal risk, than money - for individuals running websites and blogs.
Because independent voices are harder to control and make trouble for the powers-that-be. They'd shut them down entirely (or license a few for show) if the First Amendment didn't prevent that (thank your 250 year old white male slave-owning founding fathers for that).
They've been doing the same thing with independent non-employee workers for 100 years - piling on the taxes, paperwork, and legal risk until the vast majority give up and become easily-controlled employees.
Nothing new, really.
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Re: Then again...
Before the US became a signatory to berne in 1989, registration was required. depending on the specific law at the time, reregistration may have been required to cover extended periods.
US Public Domain Rules
America, it used to be a silly place.
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Re: I wish they would do this
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Re: Re: Re: Re:
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It seems more like a simple plan to strip most of the net of safe harbor via "It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard"." Yes, in the basement with no lights or stairs. I really don't imagine a page of the Copyright Office site and a mention in the Federal Register is as broadly far-reaching as your average FBI "leak".
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Re: Dumbest thing I have ever heard of.
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Re: Re: Re: Re: Re:
It's not helping friend.
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This is not a complex workflow - send a notification in advance of the registration expiring that they simply need to respond to if their information is correct.
If the notification does not get to someone, their agent information must be bad.
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Re: Dumbest thing I have ever heard of.
should not have to register
at all.
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Re: Fuck you, pay us
Cheaper in the short term does not mean cheaper in the long term, changing it from a larger, single payment to a 'smaller' but repeated payment is likely to bring in quite a bit more money.
I have basically ignored the advice to register myself mainly because most of my vanity domain sites are run by a single, trusted, individual, and mostly because I am paying for all my websites. There are no corporate backing on my websites, and I make no money off of them, so why should I pay the government yet another fee to deal with something I doubt I'll ever see. Besides, my ISP has a registered DMCA agent.
But if they are now making it a 3 year thing, why don't they just get together with ICAN and throw that as an additional requirement on the fee I already pay for the domain name registration?
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Re: Re: Re: Re: Re:
It makes you look unprofessional.
Do you think I give a fuck what you think?
And, of course, the fact that you no longer sign in makes it impossible for me to point to all the "professional" times that you went around our comments typing "bawk bawk" right?
I'm sure your current employers would find that super professional.
Fuck off with your career advice.
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Re: Re: Fuck you, pay us
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Opportunity knocking...
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If copyright can automatically apply without registration...
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Pseudonymous or anonymous blobs
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Re:
Even then, it's not required that you list yourself as the registered agent. You could list anyone that could either handle the removal themselves, or get the notice to you so that you could remove it (for example, your lawyer).
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Re: If copyright can automatically apply without registration...
The phrase, "You get what you deserve" comes to mind...
They came for the safe harbors, and I didn't speak up, because I didn't have any safe harbors...
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New system
I'm inclined to think the real reason for this is that their new electronic system is not designed to import data directly from the old directory.
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Re: Re: Re: Re: Re:
Did we all walk into a business meeting by mistake and not realize?
"And attention-desperate."
The only attention Mike's getting from cursing is from you, and I'm pretty sure he's not desperate for that.
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Re: Re: Re:
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Correction: "If you run any kind of website in America it's super important..."
Non-US sites hosted by non-US citizens are not bound by American laws, much as America wished otherwise. (MegaUpload, et al.)
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Did a copyright troll write this law?
I assume that this DMCA policy takes precedence over basic Fair-use.
Another case of Your rights, if you can afford them.
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Re: Did a copyright troll write this law?
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1) The Registrant Contact
2) The Administrative Contact
3) The Technical Contact
-and-
4) The Billing Contact
If this DMCA Contact is so damned important, why not just add it to the domain registration?
And if lack of copyright notice doesn't mean a copyright doesn't exist, why do I need a comment on my site for the DMCA?
Why is the Copyright office involved in this non-copyright issue?
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Re:
you know you're obligated to care about our opinion.
Love,
Anonymous Cowards.
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Great idea
Probably get more money and force people cause problem pay for it. Also require include copyright registration number on product for people easy find them at copyright office.
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We've hit WTF Factor 5000
What supposed benefit do I get out of this arrangement?
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Re:
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Re:
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Re: Fuck you, pay us
The government has turned into a legalized racketeering organization. Just like the mafia, ran by the MAFIA (RIAA/MPAA).
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The intended effect. Like I said, this is a racketeering operation.
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Re:
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Re:
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Re: The correct way to do it
"No. The correct way is to give DCMA safe harbour to *all*. Blanketed. No registration required."
No. The correct way is to remove the DMCA from copyright law as it has *nothing* to do with copyright.
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Re: Re:
♪♫Curse if I want to
♩♬Curse if I want to
♪♫You would curse too if they came and trolled you!"♪♫
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Re:
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Re:
For one thing, because domain != Website. It's entirely possible to have many different sites, controlled (at least in terms of day-to-day publishing decisions, and most likely in terms of legal responsibility) by otherwise-unrelated people, hosted under the same domain.
It's true that most such services nowadays choose to implement the separate sites with URLs of the form 'site.domain.tld' rather than 'www.domain.tld/~site' or similar, but that doesn't erase the distinction; it just means it's less likely to be relevant in any given case.
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Re:
Maybe they could call themselves "Grab them by the Duffy, Inc."...
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Check deposited, nothing filed
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The Last Word
“Pseudonymous or anonymous blobs
Pseudonymous or anonymous blobs. I guess this means that anyone who operates such a blog would be required to register with their real identity information.