If you’re a Web host or other Internet service that posts content at the direction of your users, the DMCA is a powerful law that protects you from liability for actions by your customers. In exchange for a few responsibilities, namely removing infringing content after proper notification, you no longer have to worry about being held liable for infringement, save in a few extreme cases.
But in the U.S. there is at least one other obligation that you have to fulfill, namely registering your site and/or your service with the U.S. Copyright Office.
But while the form is simple and having a centralized list of DMCA agents sounds like a very good thing, it simply hasn’t worked out and in the approximately 15 years since the law was passed, the U.S. Copyright Office’s list process and list is a complete disaster with no hopes for improvement.
The time has clearly come to either amend the DMCA and remove this requirement for hosts or give the Copyright Office the resources to set up and manage this list properly.
The status quo simply can not stand and there are at least nine very good reasons for that.
1. It’s Expensive
The current fees for registering a DMCA agent with the U.S. Copyright Office are $105 for the initial filing fee plus $30 for each group of ten or fewer additional names.
While that might not be much to a large or even mid-sized hosts, smaller sites, such as forum sites and upstart photo sharing services may find this cost prohibitive. Worse yet, these are often the companies that benefit the most from such registrations as they lack the resources to carry on a legal fight and are often targeted by groups such as Righthaven.
On top of being expensive, the pricing is also odd with an amended registration costing the same amount as a new one.
2. It’s Slow
Even as the U.S. Copyright Office has begun to make improvements in turnaround times for copyright registrations, the process of appointing a DMCA agent is still slow, often taking several months.
This delay can be very painful to anyone who is rushing to set up a new service that wants to take advantage of this protection. Even worse, there is no way to register an agent online as all filings have to be filled out, printed and then mailed in.
3. The List it Outdated
The list at the Copyright Office site is routinely out of date. Hosts routinely forget to amend their registrations or simply don’t bother doing so. However, even if they do remember, the costs often discourage them and the delays after receipt prevent it from being timely.
This makes the USCO list almost useless for finding information about DMCA agents.
4. The List is Incomplete
Many hosts that do qualify for DMCA protection and do actually comply with DMCA notices have not filed with the Copyright Office. This can be for one of many reasons, including ignorance or having simply forgotten, but it not only makes the list even less useful to those filing DMCA notices but also burdens otherwise cooperative hosts with potential liability.
5. The List is a Mess
The fact it takes some registrations so long to appear is interesting because all the Copyright Office does is take the mailed in form, scan it and put a link to it on their site.
Their index is nothing but a series of 27 pages, one for each letter of the alphabet and one for numerals, that contain links to the relevant PDFs. That’s it.
It’s ugly, unsearchable and many of the scans are unreadable.
6. Hosts Already Have to Post Their Information
According to Section 512(C)(2) Hosts already have to post the DMCA contact information on their site. Generally, this information is more up-to-date and most DMCA filers turn to the host’s site first before looking to the Copyright Office’s list.
There is little reason for duplication of this effort as a host that hasn’t posted the info on their site isn’t likely to have registered with the Copyright Office.
7. It’s Out of Line With Other Countries
Most nations that have similar notice-and-takedown systems don’t use any kind of central repository of this information and, instead, put the burden on the host to post the contact info as needed.
This system seems to work well and, per number 6, is the most common way for filers to get the needed information in the U.S. as well.
8. The Copyright Office Doesn’t Want It
According to various people who either work at the Copyright Office or work with the office on a regular basis, the USCO never wanted this particular duty and was never given adequate funding to do it.
This effort is well outside of the Copyright Office’s core directive of registering copyrights and advising on copyright legislation and is largely unneeded. To prove this, the Copyright Office failed to list its DMCA agent database on its about page, where it lists all of its core functions, including with the website specifically.
9. Frankly, it’s Ridiculous
Think about everything above. For an important legal function in the U.S., we have a system where we have to spend over $100 to register a Web-based business via postal mail and then have that registration scanned and put back on the Web. It’s a system that almost no one uses and has resulted in an incomplete, out of date and almost useless “database” of image-only PDFs.
The simple truth is that this system would have been considered out of date even in 1996, when the DMCA was passed. Now, it is dead weight on the DMCA process and weight and it needs to either be removed or improved.
In the end, there’s only two realistic ways to fix this problem:
- Kill the Copyright Office List: Eliminate the need to register your host with the USCO and put the burden on hosts to provide the needed information on their sites. It may be time for standards on how that information should be presented and how it can be located.
- Fix the Existing System: If we believe that having a centralized repository, despite its problems, is worthwhile then we need to fix the existing system. Modernize it so both hosts and filers actually use the database. Make registering easier and cheaper as well as giving better access to the data.
Unfortunately, the first solution requires a change in the law, which isn’t likely, and the second requires that the Copyright Office receive adequate funding for the project, which is equally unlikely.
In short, we’re most likely stuck with the status quo, even though it is completely ridiculous and, in the long run, entirely unsustainable.
In the end, the Copryight Office’s DMCA system is really nothing more than an unloved and often-forgotten side note of the DMCA. No matter what you may think about the DMCA or notice and takedown specifically, there is little doubt that the Copyright Office’s attempts at maintaing a central database for this information have been a dismal failure.
So grand is this failure that most filers prefer to search through host’s websites and not even attempt to look in what should have been the most convenient and accurate place.
Simply put, if the Copyright Office can’t maintain this service properly, then we need to free both the USCO and hosts from the burden of dealing with it. If it’s not doing anyone any good, it’s best that it be gone.
Disclosure: Through my consulting practice I routinely file DMCA agent registrations and, often, act as the DMCA agent for various hosts, forums, etc.