If you’ve done that, then you know well just how much of a mess it is.

However, recently, the USCO put out a request for public comment on proposed changes to the directory.

The proposed changes, which include a modernization of the database, a requirement that online service providers (OSPs) confirm their information every two years and enabling electronic filing of DMCA agent information, are clearly both long overdue and crucial for the DMCA process to work well.

However, to understand why these changes are so important, we first have to look at how things are handled now and how they can improve.

How Things Are Handled Today

When the DMCA took effect in 1998, it required OSPs, if they didn’t want to risk liability for actions infringing content uploaded by users, to provide contact information for a designated agent to receive notices of copyright infringement, or DMCA agent.

However, though lawmakers put the burden of maintaining this director on the Copyright Office, they didn’t provide any funds or means to do it. As such, The USCO simply whipped up a temporary form (which, 13 years later, is still referred to as the “Interim” form) and had OSPs fill it out.

The form, which has remained unchanged saved minor modifications, has to be mailed in along with payment of at least $105. When it arrives, it is scanned and placed on the site in an image-only PDF format under the names listed on the form.

Those interested in filing a DMCA notice then have to then go to the directory, find the correct letter (which can be tough as some hosts have many names), find the correct notice (which can also be tough as some hosts have the same or similar name) and then copy the information by hand out of the PDF.

Needless to say, the process is a mess and no one is happy about it. Not OSPs, not DMCA filers and not even the USCO. The system is full of problems including that it takes a long time to get information into the directory, the information is often out of date, it is expensive to update and it is difficult to access, especially for the visually impaired.

On this site alone, I’ve been talking about these issues since at least 2006 and even wrote a similar piece to this one in 2007.

However, where that piece was theoretical, we now have a real proposal from the USCO as it aims to finally get around to improving the way the directory is handled.

The Proposed Improvements

The crux of the proposal is for the system to move away from the current paper-based system and to an electronic one. This system would accept online registrations/updates, be searchable by anyone who wanted to access it and present the required information in cleartext format, meaning it can be easily copied.

The new system would also require that OSPs confirm and update their information every two years, helping to keep the database current, and also give an easier means to alter or delete information as it became outdated and/or unneeded.

Finally, the proposed changes would also allow OSPs to designate a third party to be responsible for maintaining the information. This could help further streamline the updating process for OSPs and help ensure updated information in the database.

The one thing the system won’t be, at least not initially, is cheaper. Though the uSCO has said it’s looking at how to price it, it indicated that it would not be looking meddle with prices at first.

Still, the recommendations, over all, appear to be solid. But with the request for comment phase just beginning, there’s the possibility that it could become even better.

My Thoughts on the Proposal

Most of the changes seem to be no-brainers. The system the USCO is describing is very much like the one that should have existed back in 1998 and the fact that it has taken 13 years to reach this point is awe-inspiring.

That being said, there are a few issues that either aren’t mentioned or are potentially thorny.

First, the USCO addresses it the issue of email, saying that it believes every DMCA contact should be required to post an email to the database and that it should be displayed in cleartext format in the system. While that makes sense from a usability standpoint, it makes less sense from a spam standpoint. Though there are good spam filters out there, one of the benefits of the current system is that OSPs can set up an account and largely remove all spam filters from it, ensuring ALL mail gets through.

This could likely be mitigated by limiting robot access to the database. That, in turn, can be done with a CAPTCHA system. Such systems can be made accessible to all (or nearly all) Web users and that, in turn, can help keep the database clean of spammers and prevent DMCA notices from being lost to spam filters while maintaining an overall high level of usability.

However, the more important issue is one of costs. One of the key reasons so few OSPs take advantage of this protection is the high cost, $105 for the initial registration plus $30 for each batch of ten additional names. With the new system, other than the initial cost of setting it up, there would be almost no maintenance costs associated with it (if it’s done well). Such a high fee is unjustifiable and unattainable to a smaller admins such as many forum admins and bloggers.

The USCO needs to step in here and make the system as inexpensive as possible. Otherwise, it doesn’t matter how great the electronic system is, it still won’t do any good as most OSPs will not be listed in it.

Bottom Line

All in all, most of the proposed changes seem to be good ideas and as if the USCO is heading in the right direction. The biggest complaint I have is not with the proposal, but with how long it took for this issue to come to the forefront.

While I can understand the challenges in a government agency trying to bootstrap such a large project with no budget, it has been 13 years since the law took effect and 15 years since it was first proposed. Clearly there must have been a chance to resolve this problem sooner.

That being said, I’m still trying not to look a gift horse in the mouth and simply be grateful change is in the wind now. However, I am working on a public comment to submit between now and the end of November and I may be working with Terry Hart from CopyHype on it. If you have any thoughts or think you might want to participate, please let me know by either leaving a comment below or sending me an email.

However, the law also has a series of formalities that any site wishing to take advantage of this protection, or “safe harbor”, has to take. This includes designating an agent to receive notice of copyright infringement, responding expeditiously to remove or disable access to allegedly infringing material when notified and, perhaps most tricky of all, registering your designated agent with the U.S. Copyright Office.

All of the other things you can do easily on your own without incurring any cost. However, registering with the U.S. Copyright Office does cost a small amount of money, namely $105 for a single site. Though it isn’t time consuming or difficult, it is a step that many webmasters overlook, even if it is one that could help them avoid a copyright lawsuit down the road.

Why Register a DMCA Agent?

The DMCA safe harbor provisions were designed to protect webmasters and hosts from actions taken by their users while also giving copyright holders a simple means to remove infringing content without going to court for every single infringement.

Under safe harbor, for example, YouTube nor its parent company Google are liable for copyright infringement when a user uploads an infringing video. As long as YouTube removes the videos when notified and agrees to take additional action against “repeat” infringers, YouTube is safe from copyright liability, as per the recent ruling in the Viacom v. Google case.

However, there are also formalities that sites have to comply with in order to qualify for this safe harbor protection and one of those is to register an agent to receive notices of copyright infringement from those who might wish to report such an infringement.

The problem is that very few sites take the time to do this.

Few, it seems, are aware of the requirements and others who are might be turned away by the price tag. However, if YouTube had not done so, its lawsuit with Viacom could have turned out very differently. In short, a few hundred spent on filing a registration with the USCO might have saved YouTube millions, possibly billions, in copyright damages.

How to Register a DMCA Agent

Designating a DMCA agent with the U.S. Copyright Office is actually very easy. All one has to do is download and fill in the Interim Designation of Agent to Receive Notification of Claimed Infringement form (Yes, that is the real title of the form), fill it in and send it off with either a $105 check or money order.

You can also register multiple domains with the same form. However, that does incur an additional cost as each group of ten costs another $30, meaning that for 2 to 11 domains the cost is $135 and for 12 to 21 domains the cost is $165.

Still, the process is much cheaper than doing a full new registration for each site you run.

The only other caveat to this registration process is that you must make sure that the information remains valid and active. As such, the postal address, email, fax and phone all need to be accurate. You can update the registration at any time by filing an amended registration, however, the cost is identical to a new registration.

All in all, the process should take only about five minutes and only cost, at the most, a few hundred dollars. But the headache it can save you down the road could be many fold what you spent on it.

Who Should Register a DMCA Agent?

This question is an impossible one to answer as every webmaster needs to make their own decision here. But the question to ask is simple:

How likely is it that a user of your site will upload copyright infringing material to your server?

For a blog that gets relatively few comments, it probably isn’t worthwhile. The comments can be easily moderated and suspicious material is usually removed long before anyone else is aware of the infringement. However, a larger forum where users upload a wide variety of content that is almost impossible to moderate may want to look at designating a DMCA agent.

These issues were, previously, largely academic as few copyright holders would actually sue over a technicality like a missing DMCA agent registration. However, recent events have made the questions much more important.

For example, Righthaven, the company that represents the Las Vegas Review-Journal and the Denver Post, has made it a habit of targeting forums and other sites that have not completed all of the formalities. These sites have routinely paid thousands to settle lawsuits that could have been avoided with a $105 registration.

In short though, every site needs to determine their own risk level and see if this filing a DMCA agent registration is a good step for them. However, I think far more sites would benefit from it than have done it.

Bottom Line

The good news in all of this is that, as active as Righthaven has been, lawsuits centering around this technicality are still very rare. Most copyright holders, myself included, are just happy to have the contact information on your site. In fact, very few even think to look on the USCO site for the relevant information, that is, unless it isn’t available elsewhere.

Since the DMCA also requires you to put the information your site, most webmasters are going to skip on looking at the USCO archives and just pull the information from your domain. Simply put, even if webmasters do their best to keep the USCO information up to date, which they should, there is a tremendous delay between when registrations are received and when they are posted, making the USCO database out of date in many situations.

Still, given the risk of high damages, even with a quick settlement, it makes sense to protect yourself and your site if you feel you might be at risk. It only take a few minutes to do and, if you need help with it, it is also a service that I provide as part of my consulting services.

However, there is little reason for that, unless you are a larger host and fear you may be getting a large number of complaints per month. Most sites can easily register themselves and be their own agent without having much additional workload to fear.

If you’ve ever been frustrated or had a question when registering a work with the U.S. Copyright Office, then you may want to keep this number handy: 1-877-476-0778

The USCO has made this new number available for questions and queries regarding copyright registrations and callers will either be directed to the Public Information Office or the Copyright Technology Office help desk depending on the nature of their query.

Specifically, the number is for getting help with the new Electronic Copyright Office system (eCO), which I have been very critical of ever since its launch.

Specifically, the number has three options:

• Press 1: To get recorded information about copyright or request publications.
• Press 2: To get technical support for the eCO registration system.
• Press 0: To talk to an “information specialist about copyright or registration requirements.”

The number can be used instead of their previous non-free number, 202-707-3000.

I haven’t had a chance to try the new number yet so, if you do, please let me know what your experiences are! For more information, you can read the USCO’s flier on the new number (PDF)

Note: I am back from OpenCamp and will be doing a full update tomorrow after I get caught up on some urgent things here.

It is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

It was an insane week for copyright news with one story dominating the headlines like no other, the new DRM circumvention exemptions. But while everyone was getting excited about jailbreaking their iPhones, other headlines were slipping under the radar including other, likely more important exemptions to the DRM circumvention law as well as several major updates to ongoing cases.

This week’s stories include:

• U.S. Copyright Office Announces DMCA Exemptions
• UFC Hits Back Against Illegal Streams
• Mass Bittorrent Lawsuits Target Private Trackers
• Authors Bypass publishers to Go Digital
• Bratz Dolls Back to Legal Limbo
• WordPress/Thesis Make Up

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

About the Hosts

Jonathan Bailey

Jonathan Bailey (@plagiarismtoday) is the Webmaster and author of Plagiarism Today (Hint: You’re there now) and works as a copyright and plagiarism consultant. Though not an attorney, he has resolved over 700 cases of plagiarism involving his own work and has helped countless others protect their work and develop strategies for making their content work as hard as possible toward their goals.

Patrick O’Keefe

Patrick O’Keefe (@iFroggy) is the owner of the iFroggy Network, a network of websites covering various interests. He’s the author of the book “Managing Online Forums,” a practical guide to managing online communities and social spaces. He maintains a blog about online community management at ManagingCommunities.com and a personal blog at patrickokeefe.com.

Furthermore, only if a work is registered prior to an infringement or within three months of publication can statutory damages and attorney fees be awarded. Without those damages and fees, pursuing most cases of copyright infringement is financial infeasible.

This makes registering with the USCO a critical element of any copyright legal defense strategy. Though you do not need a registration to file DMCA notices or cease and desist letter, you do need it in order to make going to court a viable alternative.

However, one attorney, Carolyn E. Wright, has pointed out a way to minimize the importance of such a registration by using copyright management information (Section 1202 of the U.S. Copyright Act) to build up damages that do not require registration.

It is an interesting strategy and, though it has a few flaws with it, could become an important element of any copyright protection system.

A CMI Recap

Copyright Management Information (CMI) is defined by the law as “information conveyed in connection with copies or phonorecords of a work or performances or displays of a work,” that is used to present information about the copyright holder, the license the work is released under or the work itself. It does not, however, cover information about the user.

CMI covers many different types of information, the law itself lists eight kinds, but it includes most of the fundamental elements including the title of the work, the author, the terms of use for the work and any identifying numbers or symbols that link to such information,

Section 1202 of the U.S. Copyright Act prohibits both the removal of CMI and the providing of false CMI. This means that a lot of information related to a work, including it’s Numly ESN, Registered Commons serial number, Creative Commons License, as well as the author and title information are all protected and can not be removed or altered.

The law provides a penalty of “not less than $2,500 or more than $25,000″ for each violation. That can easily build up into a hefty fine, especially in cases of scraping or widespread image theft where many different works are being taken.

It is important to note that the CMI must be affixed to the work itself. It can not be positioned around it. A copyright statement under an image is different from a watermark on the image itself. Similarly, copyright information embedded in the MP3 is different than a notice below the download link.

In short, the removal of the CMI is supposed to show bad faith, an intent to remove the information for personal gain. While this might be an issue in some cases of copyright infringement, it is not a problem in most cases of plagiarism, where the person is intentionally both removing existing CMI, but also providing false CMI.

It’s a great way to legally deal with plagiarists, whom most agree are the worst infringers of all.

And End Run Around the USCO?

As Wright points out in her article, the damages associated with either removing CMI or providing false CMI do not depend upon prior registration with the USCO.

This is great news for U.S.-based copyright holders who have not registered with the USCO. Though actual damages alone may not warrant taking legal recourse against a plagiarist, the potential damages for violating CMI may, very well, be worthwhile.

Of course, this is not an end run around the USCO. The requirement to register before you sue for infringement still remains intact. Should you discover an infringement, it will still be a requirement to register your work before you file suit.

Also, this does not change the requirement to register before building up statutory damages. Since items posted to the Web are not considered published works, unless the author decides they are, they have to be registered before the infirngement takes place to earn statutory damages. Furthermore, even if the author decides the works are published, the grace period is only three months and most Web sites do not meet the USCO definition for publication.

All in all, though CMI does not provide an end run around registering for the USCO, it might provide opportunities to sue and enforce rights where none might have existed before. Best of all, since CMI manipulation is most commonly performed by plagiarists, the most desired targets for such suits, it might help put a stop to some of the most frustrating and personal copyright cases.

Conclusions

If you are a United States copyright holder and you have an interest in filing suit for copyright infringement, it is still absolutely crucial that you register with the USCO. Even if you only plan on seeking damages related to CMI, it is better to have the registration in hand before something happens, so that you can move quickly.

Of course, registration does little good for bloggers, who’s works are often stolen before they even have a chance to register it, but it may help other Webmasters who have more static sites.

In the end, the fact that CMI might be useful in cases where registration with the USCO has not been done, either due to lack of desire or impracticality, is not so much a cheer about the importance of CMI, but rather, a criticism of the requirement of registration.

If ever there was an argument for putting an end to the registration requirement, the Internet is it. Though the USCO is preparing to release its online registration form, the problem is not in the method, but rather, in the requirement itself.

The U.S. stands alone in this requirement and, quite frankly, this is one time we should not stand at all.

Special Thanks: A big thank you goes out to Denise Howell for her guidance and help with this article!