[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Proposed Rules]
[Pages 59953-59960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24780]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2011-6]
Designation of Agent To Receive Notification of Claimed
Infringement
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking and request for comments.
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SUMMARY: The Copyright Office is issuing this Notice of Proposed
Rulemaking to solicit public comment on proposals to update its interim
regulations governing the designation by online service providers of
agents to receive notifications of claimed copyright infringement as
provided for in the Copyright Act.
DATES: Written comments are due November 28, 2011. Reply comments are
due December 27, 2011.
ADDRESSES: The Copyright Office strongly prefers that comments be
submitted electronically. A comment page containing a comment form is
posted on the Copyright Office Web site at http://www.copyright.gov/onlinesp/NPR. The online form contains fields for required information
including the name and organization of the commenter, as applicable,
and the ability to upload comments as an attachment. To meet
accessibility standards, all comments must be uploaded in a single file
in either the Adobe Portable Document File (PDF) format that contains
searchable, accessible text (not an image); Microsoft Word;
WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a
scanned document). The maximum file size is 6 megabytes (MB). The name
of
[[Page 59954]]
the submitter and organization should appear on both the form and the
face of the comments. All comments will be posted publicly on the
Copyright Office Web site exactly as they are received, along with
names and organizations. If electronic submission of comments is not
feasible, please contact the Copyright Office at 202-707-8125 for
special instructions.
FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Deputy General
Counsel, Copyright Office, GC/I&R, P.O. Box 70400, Washington, DC
20024. Telephone: (202) 707-8380. Fax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
Background
In 1998, the Online Copyright Infringement Liability Limitation Act
(Title II of the Digital Millennium Copyright Act, Pub. L. 105-304, 112
Stat. 2860 (Oct. 28, 1998)) amended chapter 5 of the Copyright Act,
Title 17 of the United States Code, to provide limitations on liability
for online service providers relating to material on their systems.
With respect to material residing, at the direction of a user, on a
system or network controlled or operated by or for the service
provider, the limitations of liability under section 512 are available
only if the service provider has satisfied certain conditions, one of
which is the designation of an agent to receive notification of claimed
copyright infringement to the Copyright Office, and through the service
provider's Web site in a publicly accessible location. The Copyright
Office is required to maintain an online directory of designated
agents. 17 U.S.C. 512(c)(2). Although this takedown notification
process is detailed in subsection 512(c) and is a condition precedent
for the limitations of liability under that subsection, the
notification process and the elements of notification set forth in
subsection 512(c)(3) are also referenced in subsections 512(b) and (d),
relating to system caching and information location tools respectively.
Because that Act was effective on its date of enactment and a
procedure to enable the designation of agents needed to be in place
immediately thereafter, the Copyright Office issued, without
opportunity for comment, interim regulations governing the designation
by service providers of agents to receive notifications of claimed
infringement. 63 FR 59233 (Nov. 3, 1998). The Office made clear that
the interim regulations would be replaced by more complete regulations
to be promulgated following notice and opportunity for comment. The
interim regulations have functioned satisfactorily for many years, but
issues have arisen with respect to the currency and accuracy of the
information in the directory, and the Office also intends to implement
an electronic process by which service providers may designate agents
to receive notifications of claimed infringement and an electronic
database to search for designated agents of online service providers.
This notice provides a general overview of the Office's vision for the
new system and seeks public comment on proposed rules that would govern
the submission and updating of information relating to designated
agents.
Discussion
Electronic Filing. The Copyright Office is developing an online
submission form to be used by service providers to designate their
respective agents to receive notifications of claimed copyright
infringement. If a service provider chooses to designate an agent, it
will be required to utilize the online procedure to submit the required
information to the Copyright Office. Service providers that have
already designated an agent under the interim regulations will be
required to file new designations. A submission that does not provide
information for each required field, or that provides information
identified as inappropriate (e.g., a phone number field that is
completed with all zeros), will be automatically rejected. Once this
electronic system is adopted, the Office will no longer accept paper
submissions, including documents entitled ``Interim Designation of
Agent to Receive Notifications of Claimed Infringement,'' as it did
pursuant to the interim regulations. Given that online service
providers, by definition, operate in an online environment, the Office
does not anticipate that an electronic-only designation procedure would
be burdensome to submitters. Moreover, an exclusively electronic
process is integral to an increase in efficiency and a reduction of
costs in the system.
In order to access the electronic designation of agent form, the
Office proposes to require service providers to establish accounts with
the Copyright Office, obtaining a username and password, through the
Copyright Office's Web site. There would be no charge for establishing
an account. The account must be used in order to periodically validate
designation information or to make changes to designation information.
The account will serve as a means of authenticating the person or
entity entitled to validate or amend a service provider's designation
of agent information. The Office seeks comment on this requirement.
While the Copyright Office is willing to consider allowing a
service provider to delegate this responsibility to an agent or other
designee, there may be reasons to be concerned about the accuracy of
amendments or validations of existing designation information that are
not provided by the service provider itself. If the designated agent
were permitted to do so, the service provider nevertheless would bave
to assume all responsibility for the acts of the agent. The Office
seeks public comment on the costs and/or benefits of allowing service
providers to delegate, to persons other than their employees,
responsibility for maintaining their designated agent information. The
current proposed regulation requires that the designation, or any
validation or updating of the information in the designation as
described below, be submitted by the service provider itself.
Periodic Validation. A small random sampling of a portion of the
current directory reveals that a number of existing designations are
associated with businesses that have ceased operations. Although the
interim regulations require a service provider that ceases operations
to notify the Copyright Office by certified or registered mail, few
online service providers have complied with this requirement.
Similarly, although the Office is 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 probably are outdated, and it is likely that a
sizable portion of paper designations contain information that is no
longer accurate. In order to help maintain the accuracy and utility of
the directory of designated agents, the Office proposes that each
entity that has filed a designation of agent using the online template
be required, either annually, every two years, or at some other regular
interval, to validate the information set forth in its designation to
insure that the directory remains accurate. If any information is no
longer accurate, the validation process would enable the responsible
party to amend the designation to correct any outdated information. Any
revision in a service provider's designation of an agent would create a
new record, or version, within the Copyright Office's database. Through
the use of ``versioning'' of the records, the Copyright Office will be
able to provide a record indicating what information was in the
directory for a particular service provider on any given
[[Page 59955]]
date. Such information could become important in litigation in order to
ascertain whether a service provider was in compliance with the
requirements of the statute at a particular point in time. Prior
versions of a designation will constitute public records that may be
obtained from the Copyright,Office, e.g., when needed for use in
litigation. The Office requests comments on whether such prior versions
should also be made accessible via the Office's public Web site. In
determining whether to make prior versions available via the Web site,
consideration should be given to the possible additional cost of
constructing a system that provides this form of access (a cost that
would most likely be reflected in greater fees), the potential for
confusion (i.e., whether a person seeking current information about a
service provider's designated agent might inadvertently end up with the
information from a prior version), and the benefit of being able to
gain immediate access to such information.
The Office's online system would automatically generate, at
specific periods of time (e.g., 30 and 60 days) prior to the date on
which a service provider is required to validate the information in its
designation, e-mails to the e-mail address designated by the service
provider for the validation process as well as to the designated
agent's e-mail address. These e-mails would contain a link to a login
screen and allow the service provider to log in and validate or amend
the information associated with the service provider's account. The
service provider would be required to click on the link or otherwise
log into its account, review the designation of agent information, and
then either validate the existing information or amend the information
no later than the specified deadline for validation. Should the service
provider fail to validate or amend its designation within the allotted
time, the designation would expire and be removed from the directory,
and the service provider would be notified of that fact. A service
provider whose designation has been removed but who desires to receive
the benefits of section 512 would be required to file a new designation
of an agent or, possibly, to reactivate and validate the expired
designation. A fee would be assessed for both validation and amendment
for purposes of cost recovery. The proposed rule specifies that a
service provider must validate the information relating to its
designated agent at least every two years, but the Office invites
comment as to the appropriate time period.
As is discussed further below (``Contact Information for the
Service Provider''), the Copyright Office proposes to require the
submission of the service provider's e-mail address as well as the e-
mail address of the designated agent. This is necessary in order for
the Office to transmit reminder notices of validation deadlines.
However, only the designated agent's e-mail address will be made
publicly accessible through the online directory. The service
provider's e-mail address will be maintained for Office correspondence
only.
The Office proposes to also require contact information for the
person filing the designation if that information is different from
contact information for the online service provider, to be used in case
the Office has any questions regarding the designation or the
designated agent. The Office invites comments as to whether such
information should be displayed in the online directory. Moreover,
because of the likelihood that over time, a person responsible for the
filing and updating of a designation may no longer be employed by the
service provider, the proposed regulation would require alternate name
and contact information for another person connected with the service
provider in the event that the person filing the designation cannot be
contacted.
Amending a Designation. The new online filing system will permit a
service provider to amend the information in its designation of agent
at any time, and not only during the validation process. It is
anticipated that any amendments will appear in the online directory no
later than 24 hours after they are entered by the service provider. The
prior version of the designation will be archived by the Office as an
official record, but as noted above, the information contained in that
prior version is likely to be removed from the online database.
Currently, the interim regulations require a service provider to
submit an entire new designation if any of its information has changed.
This requirement has created some confusion and has led to the
unintentional elimination of some information because some service
providers submitted only the new or changed information (e.g., the name
of a recently purchased Web site), erroneously believing that it would
supplement rather than supplant the original designation. The Copyright
Office seeks to prevent this confusion by permitting the service
provider to make changes only in those fields that contain out of date
information. The current information will be the starting point for any
changes. For instance, in the field identifying alternative name(s) of
the service provider (including DBAs), it will be possible to add to
the existing list of names or remove names, or both. It is anticipated
that upon amendment of the form, and prior to its submission, the
software will generate a preview feature to allow the user to see all
of the information that will be contained in the new record.
Amendment of a designation will require the payment of a fee (to be
determined) and will generate an e-mail from the Office to the old e-
mail address and any new e-mail address(es) provided as a means of
reducing the likelihood of unauthorized changes. Even though there will
be a fee associated with amending a designation in the Copyright
Office's directory, it is prudent for online service providers to
maintain current and accurate information, since courts may find that
incorrect or outdated information constitutes a material failure to
comply with the statutory requirements necessary for invoking the
limitations on liability in section 512. See, e.g., Ellison v.
Robertson, 189 F. Supp. 2d 1051, 1057-1058 (C.D. Cal. 2002), aff'd in
part and rev'd in part and remanded, 357 F.3d 1072 (9th Cir. 2004).
Moreover, the Copyright Office requests comment on whether it should
set the fee for interim amendments below the fee for periodic
validation in order to encourage the timely provision of accurate
information.
The Office also intends the amendment process to serve as a means
of correcting any mistakes in a previous submission. However, as with
all amendments, a fee will be required to correct any mistakes and the
previous designation containing the mistakes will be maintained in the
Office's archived records.
Overlapping Designations. A related issue has periodically arisen
when one service provider transfers a Web site to another service
provider, but fails to notify the Office of the change. The result is
that when the buyer files its designation of agent and lists the
purchased Web site as an alternative name, both the seller's and the
buyer's designations include that Web site in the directory. This can
create confusion for copyright owners who find two different agents
identified in the directory for the same service provider. This problem
exists with the current directory. (See, e.g., the various designations
for ``Altavista,'' at http://www.copyright.gov/onlinesp/list/a_agents.html) The Office can conceive of two options in such situations.
First,
[[Page 59956]]
the two designations can both exist in the online directory until the
time for the validation of the old designation, at which time the old
designation would expire. In the meantime, persons seeking the identity
of and contact information for a service provider's agent may find two
inconsistent listings for the service provider's designated agent and
might have to suffer the inconvenience of serving a notice of claimed
infringement on both the old and the new designated agent.
Alternatively, it might be required that the seller, who has control of
the existing entry in the online directory of designated agents, amend
the designation to identify the buyer as the new service provider and
identifying the new agent (or confirming that the existing agent is
continuing in that role). The Office seeks public comment on these
alternatives and any other alternatives that might address this issue.
Of course, situations may arise (and have already arisen) in which
two different service providers have the same name. This is
particularly likely with respect to alternative names (i.e., other
names by which a service provider is doing business). See, e.g., the
two entries for ``CUA'' at http://www.copyright.gov/onlinesp/list/c_agents.html. While the Office is not aware of any filings by two
different service providers with the same corporate name, it is
certainly conceivable that there might be an XYZ Corporation in Alaska
and an unrelated XYZ Corporation in Maine, each of which operates as an
online service provider. Each would be entitled to file a designated
agent. For that reason, the Office is inclined to conclude that it
should play no role in ``policing'' the submission of potentially
conflicting information designating the agents for service providers
with the same name.
At the same time, the Office recognizes the possibility of
fraudulent (or negligent) filings and solicits comment on whether and
how it might resolve such situations without having to engage in the
adjudication of disputes over who has the right to designate an online
service provider's agent.
Alternatively, problems caused by overlapping designations could
possibly be eliminated if the organizing principle of the directory
were to be shifted to focus on service provider's web address. See the
discussion below (``Possible Alternative Organizing Principle for
Directory: Designation of Web Address'').
Mandatory Re-filing. As the Office makes the transition to an
electronic filing system, it will be necessary that all service
providers refile (and, if necessary, update) their previously filed
designations of agents to receive notifications of claimed
infringement. The Office proposes the requirement for two reasons: (1)
As noted above, due to the passage of years since it was created, the
current directory contains out-of-date information, including
information about service providers that no longer exist, and (2) the
current directory consists of a list of service providers with a link,
for each service provider, to a pdf file of the paper ``Interim
Designation of Agent to Receive Notifications of Claimed Infringement''
or ``Amended Interim Designation of Agent to Receive Notifications of
Claimed Infringement'' that was submitted to the Office by the service
provider. The new directory will consist of a database to be populated
with data entered online by the service provider itself. In order to
ensure that the database contains accurate, up-to-date information, and
in order to avoid requiring Copyright Office personnel to key in the
information from the existing directory, creating additional costs that
would have to be passed on to service providers and creating the
potential for errors as the information is keyed into the directory,
the Office proposes to place the burden of supplying complete, up-to-
date information on service providers, who are in the best position to
ensure that the new directory consists of complete and accurate
information.
Upon adoption of the electronic system, an approximately one year
transition period will begin. During the transition period, the
existing paper-generated database will be maintained. At the same time,
the new designated agent database will begin to be populated and no new
paper designations will be accepted. During the transition period, a
listing in either database will satisfy the requirements of section
512(c)(2) and parties seeking to locate a service provider's designated
agent will need to search both databases. Approximately one year after
the effective date of the final rule, all paper-submitted designations
will become invalid and only those designations contained in the new
electronically-submitted directory will satisfy the statutory
requirement for designating an agent with the Copyright Office.
Filing Fee. The Copyright Office will establish fees to file,
validate, or amend a designation of agent to receive notifications of
claimed copyright infringement. In each instance, a new record, or
version, will be created, including when a preexisting record is simply
validated. The Office will conduct a cost study as it builds the online
system to determine the appropriate fee or fees and then will publish
an additional notice of proposed rulemaking to seek comments on the
proposed fees. Such fee(s) will also be incorporated into the Office's
general fee schedule set forth at 37 CFR 201.3. The online filing fee
may be less than the current $105 fee for a paper filing due to the
likely decrease in human labor required to manually input and cross-
reference the information to the online directory of designated agents
appearing on the Copyright Office's Web site, but it is likely that
part of the fee, during an initial period of time, will be used to
recoup the costs of building the new online system. Since a validation
or an amendment will result in a replacement of the prior version,
there is likely to be a fee associated with these transactions, but the
fees for amendment and/or validation may be lower than the initial
filing fee. The cost study will also examine the additional cost
associated with indexing multiple alternative names for a single
service provider. Based on a random sampling of a portion of the
designations, the Office concludes that the majority of service
providers list five or fewer alternative names, but that a significant
remainder list fifty to as many as three thousand alternative names.
While the Office is inclined to continue to make it possible for
service providers to list as many alternative names as they deem
relevant in order to enhance the utility of the directory, those
service providers with larger numbers of alternative names should pay
their proportionate share of the indexing cost. Therefore, the Office
contemplates continuing to charge an additional fee for alternative
names of the online service provider. Currently, the Copyright Office
charges $30 for each group of ten (or fewer) alternative names, but for
technical reasons it is preferable to charge at least a nominal fee for
each alternative name.
Content. The Office proposes that the information required from
service providers through the online submission process should be, for
the most part, the same as that currently required on the paper
designations under the interim regulation. Under the proposed
regulatory amendment, a service provider would be required to state its
full legal name, its physical street address, its e-mail address (a new
requirement; see the discussion below), all alternative names under
which it does business, and the name, address, telephone number, and e-
mail address of the agent designated to receive notification of claimed
infringement.
[[Page 59957]]
The Office is inclined to continue to require that the e-mail address
be submitted in traditional format (e.g., [email protected]) so that it
can automatically verify the authenticity of the address and return e-
mails to that address. Some concern has been expressed in the past
about displaying the agent's e-mail address on the Office's Web site,
and suggestions have been made to the Office to display e-mail
addresses as text (e.g., userid at domain dot com) in order to reduce
automated harvesting and spam software programs from locating service
providers' e-mail addresses. While the Copyright Office is sympathetic
to this problem, it is a fact of the Internet that online users and
online service providers must resolve by their own means. Translating
working e-mail addresses into text and vice versa would require
additional programming costs and may create additional problems for the
system. Moreover, the whole point of the database is to make it easy to
locate a service provider's designated agent and to serve a
notification of claimed infringement on that agent. On balance, it
seems that there is more to be said for facilitating such notifications
by providing an operable e-mail address than for requiring someone who
wishes to send such a notification to key in the address in each case.
Accordingly, the Office is not inclined to alter e-mail addresses
within the database, but solicits comments from the public on this
issue.
Service Provider Identity and Alternative Names. In addition to the
legal name of the individual or corporation meeting the statutory
definition of a service provider, the Office allows the service
provider to list any alternative names (including DBAs) that would
enable a copyright owner to identify the service provider and its
agent. The Copyright Office leaves the determination of what
alternative names to include up to the service provider, but the
information provided should reasonably identify the service provider.
Agent's Identity. Under the interim regulation, the Office
initially required the online service provider to identify the proper
name of the designated agent to whom notifications of alleged copyright
infringement are to be sent. However, as a result of concerns that
personnel changes could inadvertently render a designation of agent
obsolete, the Office has subsequently allowed service providers to
designate a specific position or a particular title (e.g., Copyright
Manager, VP legal affairs, or General Counsel) rather than an
individually named person as its agent. The Office is inclined to allow
such designations in the proposed rule, but is not inclined to permit a
service provider to designate an entity generally (e.g., law firm or
copyright management agency) as its agent. The Office is concerned that
notices of claimed infringement addressed to a general entity, rather
than a natural person or specific title, will be overlooked or not
attended to in a timely fashion. 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 e-mail address.
Section 512(c)(2)(A) specifies that the limitation of liability
under subsection (c) is contingent on substantially providing ``the
name, address, phone number and electronic mail address of the agent.''
The legislative history explains that: ``The substantial compliance
standard in subsections (c)(2) and (c)(3) are intended to be applied so
that technical errors (such as misspelling a name, supplying an
outdated area code if the phone number is accompanied by an accurate
address, or supplying an outdated name if accompanied by an e-mail
address that remains valid for the successor of the prior designated
agent or agent of a copyright owner) do not disqualify service
providers and copyright owners from the protections afforded under
subsection (c). It is expected 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 for in this subsection operate smoothly.'' Staff of
House Committee on the Judiciary, 105th Cong., Section-By-Section
Analysis of H.R. 2281 as Passed by the United States House of
Representatives on August 4, 1998, (Rep. Coble) (Comm. Print 1998), at
31-32. Accord: Report of the House Committee on Commerce on the Digital
Millennium Copyright Act of 1998, H.R. Rep. No. 105-551, pt. 2, at 56
(1998).
The only judicial decision to address whether Congress's use of the
word ``name'' requires a personal name or may be interpreted broadly to
encompass a position or title, in dictum, stated that ``[n]othing in
the DMCA mandates that service providers must designate the name of a
person as opposed to a specialized department to receive notifications
of claimed infringement.'' Hendrickson v. eBay Inc., 165 F. Supp. 2d
1082, 1092, fn. 13 (C.D. CA 2001).
The Office invites public comment on the question of whether an
online service provider must provide the actual name of a natural
person or whether the name of a specific position or title will satisfy
this requirement.
The Office is also inclined to permit a service provider to
designate as an agent a position or individual within the service
provider's organization itself rather than requiring the agent to be an
unrelated third party. Since there are arguably both benefits and
drawbacks to having a third party or an internal representative serve
as the agent, the Office is inclined to permit each service provider to
make the decision that best suits its needs. The Office is not,
however, inclined to permit the designation of multiple agents, as
doing so would unjustifiably complicate the statutory process. Although
the Office is sensitive to the concern that multiple agents would be
helpful in case of personnel turnover, the Office believes that the
ability to name a position or title rather than an individual
adequately addresses this issue.
Contact Information for the Service Provider. The statute addresses
some of the information a service provider must provide to the
Copyright Office, but also authorizes the Register of Copyrights to
determine any additional contact information that is deemed
appropriate. Under the current interim regulation, the service provider
is required only to provide its legal name and permitted to provide
alternative names used by the service provider. The Office is inclined
to require the service provider to provide an e-mail address in order
to send validation notifications to the service provider as well as the
designated agent. This information is sought for the benefit of the
service provider so that it is directly on notice of the impending
validation requirement and potential expiration of its designated
agent's listing with the Copyright Office. Since the service provider
will be required to create an account in order to use the online
system, the service provider will also be required to use that account
to validate or amend the designation. Therefore, it is necessary to
have a means of contacting the service provider. However, this e-mail
address will not be posted in the Copyright Office's directory of
designated agents, but rather used by the Office for the maintenance of
the designated agent listing.
Contact Information for the Designated Agent. The statute requires
the online service provider to provide the telephone number and e-mail
address of the designated agent. This
[[Page 59958]]
information is central to the requirements of 512(c)(2) and it is
particularly important that it be kept current. See, e.g., Ellison v.
Robertson, 189 F. Supp. 2d 1051, 1057-1058 (C.D. Cal. 2002), aff'd in
part and rev'd in part and remanded, 357 F.3d 1072 (9th Cir. 2004). A
fax number may be provided, but is optional information that
supplements, but does not supersede the requirement of listing a
telephone number and e-mail address for the designated agent.
Service Provider's and Agent's Address. The Office proposes to
change its rules to permit a post office box to serve as a designated
agent's address. The Office proposes this change due to concerns raised
about an agent's privacy, particularly where the agent's only address
is a home address. However, the Office proposes not, as a matter of
course, to permit a post office box to serve as the address for a
service provider, as it can be important that copyright owners are able
to physically locate the service provider, e.g., for service of
process. The Register of Copyrights may waive this prohibition in
exceptional circumstances upon written request from the service
provider.
The Office is also taking this opportunity to clarify that a
designated agent's address can be outside of the United States; because
a copyright owner is permitted to give notice of claimed infringement
via e-mail, the copyright owner bears no additional expense or burden
in giving notice to an agent located in a foreign country. The Office
also permits a service provider to list a foreign address for itself.
Although the limitations on liability in the United States Copyright
Act may not apply to a particular foreign entity, the Office believes
that if a U.S. court finds cause to assert jurisdiction over a foreign
service provider pursuant to the U.S. Copyright Act, then no reason
exists why the Copyright Office's regulations should prohibit that
service provider from having filed a designation of agent as a
condition precedent to receiving the benefits of the limitations of
liability afforded by section 512.
Signature. The Office proposes to eliminate the requirement of an
actual signature, which has been a requirement for the paper
designations that have been submitted up to now. Because all online
filings will require the creation of an online account as well as
payment via pay.gov with a credit card, a checking account, or a
Copyright Office deposit account, the online system will be able to
reasonably verify and authenticate the identity of the person
submitting, validating or amending the designation of agent filing. The
person submitting the designation will also be required to provide
contact information and attest to his or her authority to file on
behalf of the subject service provider.
Related Service Providers. The Copyright Office solicits comments
as to whether related service providers (e.g., parent and subsidiary
companies) should be permitted to file a single, joint designation of
agent to receive notifications of claimed infringement. Under the
interim regulations, related companies are considered separate entities
and thus required to file separate designations. The Office has
received occasional complaints from service providers about the
inefficiency of this practice. The Office is receptive to any process
which eases the burden on service providers without sacrificing clarity
and usefulness of the online directory, and is inclined to permit
related service providers to file a joint designation. However, it may
be that any efficiency gained by a joint filing would be undercut
should changes to a designation become necessary. For example, if one
of the related companies were to change its address, agent or one of
its Web site alternative names, then the joint designation would have
to be revised and perhaps even severed to account for the then-current
information of each of the related companies. In contrast, if each
company had maintained its own designation, then a change at one
company would only affect one designation.
If the Office permits joint designations, the service providers
named on a joint designation would be required to have and state a
legally recognized relationship (e.g., parent/subsidiary). Informal
teaming arrangements would not be acceptable for a joint filing. The
person submitting the designation would be required to certify that
this requirement had been satisfied and that he or she has the
authority of each service provider named on the joint designation to
make the submission on each service provider's behalf. The Office will
examine as part of its cost study whether there is any additional cost
associated with processing a joint designation. If such a fee is
imposed, it will be incorporated into the Copyright Office's general
fee schedule. The Office requests comments on this proposed change and
any information that would weigh in favor of or against such a change.
The Copyright Office is particularly interested in knowing whether the
benefits of such a change for an online service provider are outweighed
by other considerations.
Possible Alternative Organizing Principle for Directory:
Designation of Web Address. As noted above, one possible means of
minimizing the number of overlapping designations would be to require
that a separate designation be filed for each web address. Since all or
almost all service providers operate via Web sites, and since in most
if not all cases a single web address will be used by only one service
provider, requiring that a separate designation be submitted for each
web address could effectively prevent all or almost all such
duplicative designations. Since each web address is unique, providing
that a designation of the agent for a particular web address will not
be changed without the consent of the service provider currently
identified in that designation in the Office's database should insure
against contradictory entries in the directory. Moreover, it may well
be that Web addresses are the principal means by which persons identify
service providers. A substantial portion of the names currently used in
the directory of agents consists of web domains.
The Office seeks comment on whether requiring a separate
designation for each web address is the preferable means of organizing
the directory. If so, a further question arises as to whether service
providers should continue to be able to identify additional names by
which they are known, which would be searchable in the directory.
Conceivably, the web address is the primary or even the only name that
a person searching the directory would need to ascertain who the
designated agent of a service provider is.
However, further thought needs to be given to what is meant by
``web address.'' As a general proposition, this would be the basic
domain (e.g., loc.gov, google.com, or verizon.net) We recognize the
possibility that sometimes, multiple service providers will use the
same domain, but in such cases it is our understanding that each
service provider would be using a different subdomain (e.g.,
thomas.loc.gov).or folder (e.g., loc.gov/crb). The Office seeks
comments on the extent to which subdomains and folders are used by
separate service providers, and whether separate designations of agents
should be permitted for subdomains and for Uniform Resource Locators
(``URLs'') of folders within a domain.
If using web addresses as the organizing principle for the
directory makes sense, the Office also seeks comment on whether, as an
alternative to a web address, a service provider
[[Page 59959]]
could in appropriate circumstances identify itself by reference to the
name of the ``app'' through which it offers online services. By
``app,'' we refer to ``an application, typically a small, specialized
program downloaded onto mobile devices.'' See http://dictionary.reference.com/browse/app (definition of ``app''). While it
is the Office's impression that as a general proposition, any app
currently will be associated with a particular Web site, further
information about the current and likely future usage of apps as online
services will assist the Office in fleshing out the requirements for
the new online directory.
The Copyright Office invites comments on any and all aspects of the
proposed regulations and of the proposed new system for processing
online service provider agent designations discussed above.
List of Subjects in 37 CFR Part 201
Copyright, General provisions.
Proposed Regulation
In consideration of the foregoing, the Copyright Office proposes to
amend 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. Revise Sec. 201.38 to read as follows:
Sec. 201.38 Designation of Agent To Receive Notification of Claimed
Infringement.
(a) General. This section prescribes the rules under which service
providers may provide the Copyright Office with designations of agents
to receive notification of claimed infringement pursuant to section
512(c)(2) of title 17 of the United States Code, as amended.
(b) Electronic Filing. Service providers choosing to submit to the
Copyright Office a designation of agent to receive notification of
claimed infringement must do so by establishing an account on the
Copyright Office's Web site and then utilizing the applicable online
template. Paper submissions and amendments made pursuant to the interim
regulation for the designation of will no longer be accepted. A service
provider that has filed a paper designation of an agent under the
interim regulation and desires to remain in compliance with section
512(c)(2) must resubmit its designation of agent using the online
template within one year after [the effective date of this amendment].
On [DATE one year after the effective date of this amendment],
designations that were submitted prior to [The effective date of this
amendment] shall expire.
(c) Content. All required template fields must be completed in
order for the submission to be submitted to the Copyright Office. The
person submitting the designation of agent to receive notification of
claimed infringement must provide:
(1) The full legal name and physical street address of the service
provider and, if desired, any related entity that has a legally
recognized relationship with the service provider and that shares the
same physical street address. A post office box will not be accepted,
unless in exceptional circumstances and upon written request by the
service provider, the Register of Copyrights determines that the
circumstances warrant a waiver of this requirement;
(2) Alternative names, if any, under which the service provider,
and any related entity, is doing business; The service provider should
include any names that it expects members of the public would be likely
to use if engaging in a search in the Copyright Office's electronic
directory for its designation of an agent to receive notification of
claimed infringement.
(3) The name of the agent (either an individual, a specific
position, or a title) designated to receive notification of claimed
infringement. An agent may be a third party or an employee of the
service provider, but must be a natural person or a position occupied
by an individual, rather than a business or office name. Multiple
agents may not be named;
(4) The physical mail address (street address or post office box),
telephone number, and e-mail address of the agent designated to receive
notification of claimed infringement;
(5) An e-mail address of the online service provider for receipt of
e-mail notifications from the Copyright Office regarding the recurring
validation process or amendments to the service provider's directory
information;
(6) The full legal name, title, physical mail address, telephone
number, and e-mail address of the person submitting the designation of
agent on behalf of the service provider.
(7) The full legal name, title, physical mail address, telephone
number, and e-mail address of another person affiliated with the
service provider, who can be contacted by the Copyright Office in the
event that the person who submitted the designation of agent cannot be
contacted.
(8) An attestation by the person submitting the designation of
agent that he or she has the appropriate authority of the service
provider, including any related entities listed, if applicable, to
submit the designation of agent on its or their behalf.
(d) Directory of Designated Agents.
For a period of one year after the effective date of this
regulation, the Copyright Office will maintain two directories of
designated agents which in combination will satisfy the requirements of
section 512(c)(2): the directory consisting of notifications submitted
before [the effective date of this amendment] (the ``old directory'')
and the directory consisting of notifications submitted electronically
on or after [the effective date of this amendment] (the ``new
directory''). During this transition period, any new designation of an
agent must be submitted via the electronic submission process, and only
designations submitted via that process may be amended. The directories
of designated agents will be available on the Copyright Office's Web
site at: http://www.copyright.gov/onlinesp/. One year after the
effective date of this regulation, the old directory will no longer be
accessible through the Copyright Office's Web site and will no longer
satisfy the requirements of section 512(c)(2).
(e) Validation.
A service provider that has filed a designation of agent on or
after [INSERT the effective date of this amendment] is required either
to validate the accuracy of the information contained in its
designation or to amend the information as appropriate and validate the
accuracy of the amended information within two years after the later of
(1) The filing of the designation of agent or (2) the most recent
amendment of the designation that has been submitted by the service
provider. If a service provider does not validate or amend its
designation within that two-year period, the designation of agent will
expire and will be removed from the Office's directory.
(f) Amendment.
At any time after a service provider has designated an agent with
the Copyright Office, the service provider may amend the filing online
to correct or update information. The Copyright Office will maintain
all versions of electronic designations, including validations or
amendments, for evidence in litigation, but only the current
information in the directory will be available online.
(g) Fees.
The Copyright Office's general fee schedule, located at section
201.3 of title 37 of the Code of Federal Regulations, sets forth the
applicable fees for the online filing of a service provider's
designation of agent to
[[Page 59960]]
receive notification of claimed infringement, periodic validation or
amendment thereof, as well as the fee for the listing of alternative
names.
Dated: September 21, 2011.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2011-24780 Filed 9-27-11; 8:45 am]
BILLING CODE 1410-30-P