Designation of Agent To Receive Notification of Claimed Infringement, 59953-59960 [2011-24780]
Download as PDF
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
with its Data Initiative (29 CFR
1904.41).
OSHA is also proposing to revise
Section 1904.39, which currently
requires an employer to report to OSHA,
within eight hours, all work-related
fatalities and in-patient hospitalizations
of three or more employees. The
proposed rule would require an
employer to report to OSHA, within
eight hours, all work-related fatalities
and all work-related in-patient
hospitalizations; and within 24 hours,
all work-related amputations.
This regulation was developed in
accordance with the principles of
Executive Order 12866 and Executive
Order 13563. Executive Order 12866
requires that OSHA estimate the
benefits, costs, and net benefits of
proposed regulations. The Agency
estimates the regulation will cost
approximately $8.5 million, on an
annualized basis. As discussed
elsewhere in this preamble, the Agency
believes the annual benefits, while
unquantified, are significantly in excess
of the annual costs.
srobinson on DSK4SPTVN1PROD with PROPOSALS
Background
On June 22, 2011 OSHA proposed to
update Appendix A to Subpart B of its
Injury and Illness Recording and
Reporting regulation. See 76 FR 36414.
The Notice of Proposed Rulemaking
(NPRM) also contained a proposed
requirement to report to OSHA, within
eight hours, all work-related fatalities
and all work-related in-patient
hospitalizations; and within 24 hours,
all work-related amputations. The
comment period for the NPRM ran
through September 20, 2011. On
September 16, 2011 OSHA received a
request to extend the comment period
through October 20, 2011. The National
Automobile Dealers Association
requested this extension to provide
them more time to evaluate the Bureau
of Labor Statistics injury and illness
data used for the proposed industry
exemption analysis. OSHA has agreed to
this request. The docket is being
reopened for comment for an additional
30 days.
Public Submissions
OSHA invites comment on all aspects
of the proposed rule. OSHA specifically
encourages comment on the questions
raised in the issues and potential
alternatives sections of this preamble.
Interested persons must submit
comments by October 28, 2011. The
Agency will carefully review and
evaluate all comments, information, and
data, as well as all other information in
the rulemaking record, to determine
how to proceed.
VerDate Mar<15>2010
17:03 Sep 27, 2011
Jkt 223001
You may submit comments in
response to this document (1)
electronically at https://
www.regulations.gov, which is the
Federal e-rulemaking portal; (2) by fax;
or (3) by hard copy. All submissions
must identify the Agency name and the
OSHA docket number (Docket No.
OSHA–2010–0019) or RIN (RIN No.
1218–AC50) for this rulemaking. You
may supplement electronic submissions
by uploading document files
electronically. If, instead, you wish to
mail additional materials in reference to
an electronic or fax submission, you
must submit three copies to the OSHA
docket office (see ADDRESSES section).
The additional materials must clearly
identify your electronic comments by
name, date, and docket number, so
OSHA can attach them to your
comments.
Because of security-related
procedures, the use of regular mail may
cause a significant delay in the receipt
of submissions. For information about
security procedures concerning the
delivery of materials by hand, express
delivery, messenger or courier service,
please contact the OSHA docket office
at (202) 693–2350 (TTY (877) 889–
5627).
Access to Docket
Comments in response to this Federal
Register notice are posted at https://
www.regulations.gov, the Federal erulemaking portal. Therefore, OSHA
cautions individuals about submitting
personal information such as social
security numbers and birthdates.
Although submissions are listed in the
https://www.regulations.gov index, some
information (e.g., copyrighted material)
is not publicly available to read or
download through that Web site. All
comments and exhibits, including
copyrighted material, are available for
inspection and copying at the OSHA
docket office. Information on using
https://www.regulations.gov to submit
comments and access dockets is
available on that Web site. Contact the
OSHA docket office for information
about materials not available through
the Web site and for assistance in using
the Internet to locate docket
submissions.
Electronic copies of this Federal
Register document are available at
https://www.regulations.gov. This
document, as well as news releases and
other relevant information, also are
available at OSHA’s Web page at https://
www.osha.gov. For specific information
about OSHA’s Recordkeeping rule, go
the Recordkeeping page on OSHA’s Web
page.
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
59953
Authority and Signature
This document was prepared under
the direction of Dr. David Michaels,
Assistant Secretary of Labor for
Occupational Safety and Health. It is
issued under Sections 8 and 24 of the
Occupational Safety and Health Act (29
U.S.C. 657, 673), 5 U.S.C. 553, and
Secretary of Labor’s Order 4–2010 (75
FR 55355, 9/10/2010).
Signed at Washington, DC, on September
22, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.
[FR Doc. 2011–24779 Filed 9–27–11; 8:45 am]
BILLING CODE 4510–26–P
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2011–6]
Designation of Agent To Receive
Notification of Claimed Infringement
Copyright Office, Library of
Congress.
ACTION: Notice of proposed rulemaking
and request for comments.
AGENCY:
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 https://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
SUMMARY:
E:\FR\FM\28SEP1.SGM
28SEP1
59954
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
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:
srobinson on DSK4SPTVN1PROD with PROPOSALS
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.
VerDate Mar<15>2010
17:03 Sep 27, 2011
Jkt 223001
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 electroniconly 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
PO 00000
Frm 00029
Fmt 4702
Sfmt 4702
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
E:\FR\FM\28SEP1.SGM
28SEP1
srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
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.
VerDate Mar<15>2010
17:03 Sep 27, 2011
Jkt 223001
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 email 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
PO 00000
Frm 00030
Fmt 4702
Sfmt 4702
59955
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 https://
www.copyright.gov/onlinesp/list/
a_agents.html) The Office can conceive
of two options in such situations. First,
E:\FR\FM\28SEP1.SGM
28SEP1
srobinson on DSK4SPTVN1PROD with PROPOSALS
59956
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
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 https://
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
VerDate Mar<15>2010
17:03 Sep 27, 2011
Jkt 223001
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-ofdate 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 papergenerated 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
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
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.
E:\FR\FM\28SEP1.SGM
28SEP1
srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
The Office is inclined to continue to
require that the e-mail address be
submitted in traditional format (e.g.,
userid@domain.com) 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 email 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
VerDate Mar<15>2010
17:03 Sep 27, 2011
Jkt 223001
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-BySection 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).
PO 00000
Frm 00032
Fmt 4702
Sfmt 4702
59957
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
E:\FR\FM\28SEP1.SGM
28SEP1
srobinson on DSK4SPTVN1PROD with PROPOSALS
59958
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
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
VerDate Mar<15>2010
17:03 Sep 27, 2011
Jkt 223001
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.
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
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
E:\FR\FM\28SEP1.SGM
28SEP1
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
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 https://
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 § 201.38 to read as follows:
srobinson on DSK4SPTVN1PROD with PROPOSALS
§ 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
VerDate Mar<15>2010
17:03 Sep 27, 2011
Jkt 223001
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 email 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 email 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
PO 00000
Frm 00034
Fmt 4702
Sfmt 4702
59959
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: https://
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
E:\FR\FM\28SEP1.SGM
28SEP1
59960
Federal Register / Vol. 76, No. 188 / Wednesday, September 28, 2011 / Proposed Rules
Authority: Sec. 3001(f) RCRA, 42 U.S.C.
6921(f).
receive notification of claimed
infringement, periodic validation or
amendment thereof, as well as the fee
for the listing of alternative names.
Dated: September 14, 2011.
Carl E. Edlund,
Division Director, Multimedia Planning and
Permitting Division, Region 6.
Dated: September 21, 2011.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2011–24984 Filed 9–27–11; 8:45 am]
BILLING CODE 6560–50–P
[FR Doc. 2011–24780 Filed 9–27–11; 8:45 am]
DEPARTMENT OF HOMELAND
SECURITY
ENVIRONMENTAL PROTECTION
AGENCY
Federal Emergency Management
Agency
40 CFR Part 261
[EPA–R06–RCRA–2009–0312; SW FRL–
9472–6]
44 CFR Part 67
[Docket ID FEMA–2011–0002; Internal
Agency Docket No. FEMA–B–1220]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Withdrawal of
proposed rule
Proposed Flood Elevation
Determinations
Federal Emergency
Management Agency, DHS.
ACTION: Proposed rule.
AGENCY:
Environmental Protection
Agency (EPA).
ACTION: Withdrawal of proposed rule.
AGENCY:
Because EPA has discovered
additional information which we
believe is pertinent for consideration in
this decision, we are withdrawing the
proposed rule to grant an exclusion for
Republic Services, Inc./BFI Gulf West
Landfill (Gulf West) located in Anahuac,
TX, published on January 28, 2011. This
notice removes the proposed rule
published in 76 FR 5110 (January 28,
2011) for public review and comment.
SUMMARY:
SUMMARY:
srobinson on DSK4SPTVN1PROD with PROPOSALS
FOR FURTHER TECHNICAL INFORMATION
CONTACT: Michelle Peace by mail at U.S.
EPA Region 6, Multimedia Planning and
Permitting Division, Corrective Action
and Waste Minimization Section (6PD–
C), 1445 Ross Avenue, Dallas, TX 75202,
by phone at (214) 665–7430 or by e-mail
at peace.michelle@epa.gov.
SUPPLEMENTARY INFORMATION: Because
EPA has discovered additional
information pertinent to the final
disposition of the petition, we are
withdrawing the proposed rule for
Republic Services, Inc./BFI Gulf West
Landfill (Gulf West) located in Anahuac,
TX, published on January 28, 2011 (76
FR 5110). EPA subsequently received
information after the comment period
which highlighted several deficiencies
in the data submitted by Gulf West. EPA
will return the December 2009 petition
submitted by Gulf West. No further
action will be taken on this petition. A
new petition will be required for this
waste stream.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
17:03 Sep 27, 2011
The
Federal Emergency Management Agency
(FEMA) proposes to make
determinations of BFEs and modified
BFEs for each community listed below,
in accordance with section 110 of the
Flood Disaster Protection Act of 1973,
42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed BFEs and modified
BFEs, together with the floodplain
management criteria required by 44 CFR
60.3, are the minimum that are required.
They should not be construed to mean
that the community must change any
existing ordinances that are more
stringent in their floodplain
management requirements. The
community may at any time enact
stricter requirements of its own or
pursuant to policies established by other
Federal, State, or regional entities.
These proposed elevations are used to
meet the floodplain management
requirements of the NFIP and also are
used to calculate the appropriate flood
insurance premium rates for new
buildings built after these elevations are
made final, and for the contents in those
buildings.
Comments on any aspect of the Flood
Insurance Study and FIRM, other than
the proposed BFEs, will be considered.
A letter acknowledging receipt of any
comments will not be sent.
National Environmental Policy Act.
This proposed rule is categorically
excluded from the requirements of 44
CFR part 10, Environmental
Consideration. An environmental
impact assessment has not been
prepared.
Regulatory Flexibility Act. As flood
elevation determinations are not within
the scope of the Regulatory Flexibility
Act, 5 U.S.C. 601–612, a regulatory
flexibility analysis is not required.
Executive Order 12866, Regulatory
Planning and Review. This proposed
rule is not a significant regulatory action
under the criteria of section 3(f) of
Executive Order 12866, as amended.
Executive Order 13132, Federalism.
This proposed rule involves no policies
that have federalism implications under
Executive Order 13132.
Executive Order 12988, Civil Justice
Reform. This proposed rule meets the
applicable standards of Executive Order
12988.
SUPPLEMENTARY INFORMATION:
BILLING CODE 1410–30–P
VerDate Mar<15>2010
Luis
Rodriguez, Chief, Engineering
Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,
(202) 646–4064, or (e-mail)
luis.rodriguez1@dhs.gov.
FOR FURTHER INFORMATION CONTACT:
Jkt 223001
Comments are requested on
the proposed Base (1% annual-chance)
Flood Elevations (BFEs) and proposed
BFE modifications for the communities
listed in the table below. The purpose
of this proposed rule is to seek general
information and comment regarding the
proposed regulatory flood elevations for
the reach described by the downstream
and upstream locations in the table
below. The BFEs and modified BFEs are
a part of the floodplain management
measures that the community is
required either to adopt or to show
evidence of having in effect in order to
qualify or remain qualified for
participation in the National Flood
Insurance Program (NFIP). In addition,
these elevations, once finalized, will be
used by insurance agents and others to
calculate appropriate flood insurance
premium rates for new buildings and
the contents in those buildings.
DATES: Comments are to be submitted
on or before December 27, 2011.
ADDRESSES: The corresponding
preliminary Flood Insurance Rate Map
(FIRM) for the proposed BFEs for each
community is available for inspection at
the community’s map repository. The
respective addresses are listed in the
table below.
You may submit comments, identified
by Docket No. FEMA–B–1220, to Luis
Rodriguez, Chief, Engineering
Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,
(202) 646–4064, or (e-mail)
luis.rodriguez1@dhs.gov.
PO 00000
Frm 00035
Fmt 4702
Sfmt 4702
E:\FR\FM\28SEP1.SGM
28SEP1
Agencies
[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Proposed Rules]
[Pages 59953-59960]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24780]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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 https://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 https://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., userid@domain.com) 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 https://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: https://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