Designation of Agent To Receive Notification of Claimed Infringement, 75695-75708 [2016-26257]

Agencies

• Library of Congress
• U.S. Copyright Office

[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Rules and Regulations]
[Pages 75695-75708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26257]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 201

[Docket No. RM 2011-6]


Designation of Agent To Receive Notification of Claimed 
Infringement

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: Under the Digital Millennium Copyright Act (``DMCA''), the 
U.S. Copyright Office is required to maintain a ``current directory'' 
of agents that have been designated by online service providers to 
receive notifications of claimed infringement. Since the DMCA's 
enactment in 1998, online service providers have designated agents with 
the Copyright Office using the Office's or their own paper form, and 
the Office has made scanned copies these filings available to the 
public by posting them on the Office's Web site. Although the DMCA 
requires service providers to update their designations with the Office 
as information changes, an examination of the Office's current 
directory reveals that many have failed to do so, and that much of the 
information currently contained in the directory has become inaccurate 
and out of date. On September 28, 2011, the Office issued a notice of 
proposed rulemaking to update relevant regulations in anticipation of 
creating a new electronic system through which service providers would 
be able to more efficiently submit, and the public would be better able 
to search for, designated agent information. On May 25, 2016, with the 
electronic system in its final stages of development, the Office issued 
a notice of proposed rulemaking proposing significantly lower fees for 
designating agents through the forthcoming online system. As the next 
step in implementation, the Office today announces the adoption of a 
final rule to govern the designation and maintenance of DMCA agent 
information under the new electronic system and to establish the 
applicable fees.

DATES: Effective December 1, 2016.

FOR FURTHER INFORMATION CONTACT: Sarang V. Damle, General Counsel and 
Associate Register of Copyrights, by email at sdam@loc.gov, or Jason E. 
Sloan, Attorney-Advisor, by email at jslo@loc.gov. Each can be 
contacted by telephone by calling (202) 707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

    In 1998, Congress enacted section 512 of title 17, United States 
Code, as part of the Digital Millennium Copyright Act (``DMCA'').\1\ 
Among other things, section 512 provides safe harbors from copyright 
infringement liability for online service providers that are engaged in 
specified activities and that meet certain eligibility requirements.\2\ 
A service provider seeking to avail itself of the safe harbor in 
section 512(c) (for storage of material at the direction of a user) is 
required to designate an agent to receive notifications of claimed 
copyright infringement by making contact information for the agent 
available to the public on its Web site, and by providing such 
information to the Copyright Office.\3\ The safe harbors in subsections 
512(b) (for system caching) and (d) (for information location tools) 
incorporate the notice provisions of section 512(c) and thus also 
require that notices of infringement be sent to ``the designated agent 
of a service provider'' \4\--that is, an agent that has been designated 
by the service provider as described above.\5\
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    \1\ Public Law 105-304, 112 Stat. 2860 (1998).
    \2\ 17 U.S.C. 512.
    \3\ Id. at 512(c)(2).
    \4\ Id. at 512(c)(3)(A).
    \5\ See id. at 512(b)(2)(E), (d)(3).
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    The language of section 512(c)(2) makes clear that a service 
provider must maintain the same contact information required under 
section 512(c)(2)(A) and (B) both on its Web site and at the Copyright 
Office.\6\ A service provider that fails to maintain current and 
accurate information, both on its Web site and with the Office, may not 
satisfy the statutory requirements necessary for

[[Page 75696]]

invoking the limitations on liability in section 512.
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    \6\ 63 FR 59233, 59234 (Nov. 3, 1998) (``[A] service provider 
designates an agent by providing information required by Copyright 
Office regulations both on its publicly available Web site and in a 
filing with the Copyright Office.''); see also BWP Media USA Inc. v. 
Hollywood Fan Sites LLC, 115 F. Supp. 3d 397, 403 (S.D.N.Y. 2015) 
(``[T]he statutory scheme expressly requires two publicly available, 
parallel sources of a service provider's DMCA agent information (the 
service provider's Web site and the [Copyright Office] directory) in 
order for that provider to be shielded by the Sec.  512(c) safe 
harbor.''); 4 Melville Nimmer & David Nimmer, Nimmer on Copyright 
12B.04[B][3] (2015) (``Nimmer on Copyright'') (``In addition to 
providing the foregoing information to the Copyright Office, the 
service provider must provide the same information to the 
public.'').
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    As Congress made clear in enacting section 512(c)(2), its 
expectation was 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 forth in 
this subsection operate smoothly.'' \7\ A service provider's failure to 
maintain up-to-date information would be contrary to that congressional 
intent, and would substantially undermine the statutory regime, as 
inaccurate or outdated information could significantly affect the 
ability of a copyright owner to contact a service provider's designated 
agent. The end result in such a case would be the same as if the 
service provider had not designated an agent at all--notifications of 
claimed infringement cannot effectively be submitted. Because providing 
inaccurate or outdated information can be functionally equivalent to 
not designating an agent, it follows that just as designating an agent 
is a prerequisite for obtaining safe harbor protection,\8\ keeping that 
designation current and accurate must be an ongoing prerequisite as 
well.\9\
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    \7\ Staff of H. Comm. 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, at 32 (Comm. Print 1998).
    \8\ See 17 U.S.C. 512(c)(2) (``The limitations on liability 
established in this subsection apply to a service provider only if 
the service provider has designated an agent to receive 
notifications of claimed infringement. . . .'') (emphasis added); 
see also 4 Nimmer on Copyright 12B.04[B][3] (``Section 512 provides 
that a service provider may take advantage of the instant limitation 
only if it has designated an agent to receive the notifications of 
claimed infringement.'').
    \9\ Several commenters in this proceeding agree that failing to 
keep designations current and accurate could result in the loss of 
safe harbor protection. See infra note 89 and accompanying text.
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    Moreover, the statute specifically directs the Copyright Office to 
``maintain a current directory of agents,'' and authorizes a fee to 
cover the ``costs of maintaining the directory.'' \10\ The purpose of 
this central repository of designated agent information--separate and 
apart from the information required to be maintained on each service 
provider's Web site--is ``[t]o facilitate easy access to the identity 
of all designated agents'' for public use.\11\ If designated agent 
contact information contained in the Office's directory is inaccurate 
or out of date, it would significantly hinder the ability of copyright 
owners to efficiently contact the service provider's agent. This is 
especially so because it may be difficult to locate contact information 
for a designated agent on a service provider's own Web site.\12\ Thus, 
in adopting regulations to implement the statute, the Office's ultimate 
task is to ensure that the directory fulfills its essential purpose as 
a convenient repository for ``current'' designated agent 
information.\13\
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    \10\ 17 U.S.C. 512(c)(2).
    \11\ See 4 Nimmer on Copyright 12B.04[B][3]; see also BWP Media 
USA Inc., 115 F. Supp. 3d at 402 (citing Nimmer on Copyright).
    \12\ As discussed below, in an effort to assess the accuracy of 
designations in the existing Copyright Office directory, the Office 
undertook a comparison of the information contained in designations 
in the directory against the information on service provider Web 
sites. In doing so, the Office also learned that it often takes a 
significant effort to even locate designated agent information on a 
service provider's Web site, and in many cases the Office was unable 
to locate the information at all.
    \13\ See 17 U.S.C. 512(c)(2).
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    Because the DMCA was effective on its date of enactment, and a 
procedure to enable the designation of agents needed to be in place 
immediately, the Copyright Office issued interim regulations governing 
the designation of agents to receive notifications of claimed 
infringement without the opportunity for a public comment period.\14\ 
While the information required to be provided by the interim 
regulations was originally submitted to the Office in paper hardcopy, 
the Office later began accepting scanned submissions of paper 
designations via email. Once received, the Office then scanned the 
filings, if necessary, and posted them to the directory on its Web 
site.\15\ This system has continued to this day.
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    \14\ See 63 FR at 59233-34.
    \15\ See https://www.copyright.gov/onlinesp/.
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    Over time it has become clear to the Office that the designation 
process established under the interim regulations needs to be updated 
to better fulfill the objectives of section 512(c)(2). The paper 
designation system is inefficient and expensive for service providers, 
and represents a significant drain on Office resources due to the 
largely manual process of scanning paper designations and posting them 
online. Furthermore, the search capabilities of the paper-generated 
directory, even in its online format, are limited. To effectuate an 
update of the interim regulations, the Office issued a notice of 
proposed rulemaking on September 28, 2011 (``NPRM'') proposing a new 
fully-electronic system through which service providers could more 
efficiently designate agents and maintain service provider and agent 
information with the Copyright Office, and the public could more easily 
search for agents in an online directory.\16\At the time of the NPRM, 
the Office also expressed concern that a sizable portion of the 
designations in the paper-generated directory appeared to be outdated 
or for defunct service providers. The Office had examined a small 
random sampling of designations from the directory, which revealed that 
a number of existing designations were associated with businesses that 
had ceased operations.\17\ Thus, although the interim regulations 
required a service provider that ceased operations to notify the 
Copyright Office of such,\18\ it seemed that few actually did so.\19\ 
The Office also noted that although it was 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 are probably outdated.'' \20\
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    \16\ See 76 FR 59953 (Sept. 28, 2011).
    \17\ 76 FR at 59954.
    \18\ 37 CFR 201.38(g) (``If a service provider terminates its 
operations, the entity shall notify the Copyright Office by 
certified or registered mail.'').
    \19\ 76 FR at 59954.
    \20\ Id.
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    In 2013, the Department of Commerce's Internet Policy Task Force 
\21\ reiterated concerns regarding the accuracy of the Office's 
existing directory in a paper addressing various issues involving 
copyright and new technologies. Relying on an industry study, the Task 
Force found that ``the database is not current and reliable.'' \22\
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    \21\ The Internet Policy Task Force is a group comprised of 
various Commerce Department bureaus, including the United States 
Patent and Trademark Office, the National Telecommunications and 
Information Administration, the International Trade Administration, 
the National Institute of Standards and Technology, and the Economic 
and Statistics Administration. Department of Commerce Internet 
Policy Task Force, Copyright Policy, Creativity, and Innovation in 
the Digital Economy, at i (2013).
    \22\ Id. at 59 & n.317 (citing a study by the Software & 
Information Industry Association finding that ``nearly half'' of 
emails sent to a sample of designated agents listed in the Office's 
directory ``were returned as undeliverable'' and that ``[o]f those 
that were deliverable, many went without a response'').
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    More recently, to confirm the NPRM's initial assessment of the 
quality of the information in the current designated agent directory, 
the Office examined a larger sampling of 500 existing paper 
designations and found that approximately 70% either had inaccurate 
information or were for defunct service providers. Specifically, 110 
(22%) appeared to be for defunct service providers.\23\ For the 
remaining,

[[Page 75697]]

non-defunct service providers, to determine whether a service 
provider's designation contained inaccurate or outdated information, 
the Office compared the information provided in the paper designation 
to the information the service provider currently provides on its own 
Web site. As noted above, the DMCA requires a service provider to 
maintain the same information both on its Web site and at the Copyright 
Office. Where there is a discrepancy between these sources, it is fair 
to assume that the information in the Copyright Office's directory, 
rather than the information on the service provider's own Web site, is 
out of date, as service providers are more likely to update their own 
Web sites on a regular basis.
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    \23\ This figure aligns with the estimate made by the Office in 
calculating the appropriate fee for the new system. In the Office's 
May 25, 2016 notice proposing the specific fee for designating 
agents through the new electronic system, the Office estimated that 
defunct service providers constituted 15-25% of all current 
designations. See 81 FR 33153, 33154 (May 25, 2016). The category of 
defunct service providers includes service providers that have 
merged with another service provider. In such cases, the Web 
properties previously owned by the first service provider may still 
exist, but that service provider itself no longer exists as a going 
concern.
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    Accordingly, for each of the 390 non-defunct service providers in 
the sample, the Office assessed whether the telephone number, physical 
mail address, and email address listed for the designated agent in the 
Office's directory matched the contact information on the service 
provider's Web site. The Office found that the Web sites for 20 service 
providers did not appear to contain any contact information whatsoever. 
Although these service providers' failure to provide designated agent 
information on their Web sites renders them ineligible for the section 
512 safe harbors, that failure also meant that the Office could not 
ascertain the accuracy of the designations in the Office's directory 
one way or the other, because there was no information against which to 
compare. This left the Office with a sample of 370 service providers 
that had at least some of the required contact information on their Web 
sites that the Office could use to compare against the paper 
designations filed with the Office.\24\ Out of these 370 designations, 
241 (approximately 65%) were out of date, as evidenced by the fact that 
one or more of the telephone number, physical mail address, or email 
address listed for a designated agent did not match the contact 
information on the corresponding service provider's Web site.\25\
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    \24\ The Office notes that a number of even these service 
providers did not provide all three pieces of information 
contemplated by the statute--the telephone number, physical mail 
address, and email address for the designated agent--on their Web 
sites, instead providing only one or two. In those cases, the Office 
used whichever piece(s) of contact information that the service 
provider supplied on the Web site to compare against the information 
in the Office's directory. If that information matched, the Office 
counted the service's provider's designation as accurate and 
current.
    \25\ This figure includes Web sites that provided contact 
information explicitly for a DMCA designated agent as well as Web 
sites that only provided general contact information for the site. 
To break this number down further: The Office found that for 
approximately 56% of the designations corresponding to Web sites 
with contact information specifically for a designated agent, one or 
more of the telephone number, physical mail address, or email 
address listed for a designated agent did not match the contact 
information on the corresponding service provider's Web site. For 
service providers with Web sites that only provided general contact 
information that did not specifically reference a designated agent, 
this figure was approximately 84%.
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    As this analysis shows, the apparent volume of designations in the 
Office's directory belonging to defunct service providers or containing 
inaccurate information is extremely high. These findings are 
particularly concerning because they show that service providers might 
unwittingly be losing the protection of the safe harbors in section 512 
by forgetting to maintain complete, accurate, and up-to-date 
information with the Copyright Office. These findings are also 
concerning because the directory in many cases would seem to be an 
unreliable resource, at best, to identify or obtain contact information 
for a particular service provider's designated agent.
    Though the Office did not yet know the full extent of the 
inaccuracy of the current directory, the Office issued the NPRM with 
these general concerns of accuracy, cost, and efficiency in mind. In 
addition to describing the proposed electronic system, the NPRM sought 
public comment on modified regulations that would govern the submission 
and updating of information relating to designated agents through such 
proposed system.\26\ In response to the NPRM, the Office received 
comments from trade organizations and others representing the interests 
of internet service providers and copyright owners.\27\
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    \26\ See 76 FR at 59953.
    \27\ Computer & Commc'ns Indus. Ass'n, Comments Submitted in 
Response to U.S. Copyright Office's Sept. 28, 2011 Notice of 
Proposed Rulemaking (``CCIA Initial''); Elec. Frontier Found., 
Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 
2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (``EFF 
Initial''); Google Inc., Comments Submitted in Response to U.S. 
Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking 
(Nov. 28, 2011) (``Google Initial''); Google Inc., Comments 
Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 
Notice of Proposed Rulemaking (Dec. 27, 2011) (``Google Reply''); 
Internet Commerce Coal., Comments Submitted in Response to U.S. 
Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking 
(Nov. 28, 2011) (``ICC Initial''); Matthew Neco, Comments Submitted 
in Response to U.S. Copyright Office's Sept. 28, 2011 Notice of 
Proposed Rulemaking (``Neco Initial''); Microsoft Corp., Comments 
Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 
Notice of Proposed Rulemaking (Nov. 28, 2011) (``Microsoft 
Initial''); MiMTiD Corp., Comments Submitted in Response to U.S. 
Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking 
(Nov. 28, 2011) (``MiMTiD Initial''); Motion Picture Ass'n of Am., 
Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 
2011 Notice of Proposed Rulemaking (Nov. 23, 2011) (``MPAA 
Initial''); Org. for the Promotion and Advancement of Small 
Telecomms. Cos., Nat'l Telecomms. Coop. Ass'n, Am. Cable Ass'n, 
Indep. Tel. & Telecomms. Alliance, W. Telecomms. Alliance, Rural 
Indep. Competitive All., Joint Comments Submitted in Response to 
U.S. Copyright Office's Sept. 28, 2011 Notice of Proposed Rulemaking 
(Nov. 28, 2011) (``Telecomm Parties Initial''); Pub. Knowledge, 
Comments Submitted in Response to U.S. Copyright Office's Sept. 28, 
2011 Notice of Proposed Rulemaking (Nov. 28, 2011) (``Public 
Knowledge Initial''); Recording Indus. Ass'n of Am., Comments 
Submitted in Response to U.S. Copyright Office's Sept. 28, 2011 
Notice of Proposed Rulemaking (``RIAA Initial''); Verizon Commc'ns 
Inc., Comments Submitted in Response to U.S. Copyright Office's 
Sept. 28, 2011 Notice of Proposed Rulemaking (Nov. 28, 2011) 
(``Verizon Initial'').
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    To effectuate the system described in the NPRM, the Library of 
Congress authorized the necessary software development effort through 
its Information and Technology Services unit (now called the Office of 
the Chief Information Officer). Over the past year, the Library has 
committed development resources to this effort and it is now 
anticipated that the new electronic system to register designated 
agents with the Office will be launched on December 1, 2016.
    As the software development effort was reaching its final stages, 
the Office on May 25, 2016 issued a notice of proposed rulemaking to 
lower the fee for designating an agent through the new system (``Fee 
NPRM'').\28\ The Fee NPRM proposed reducing the current fee of $105, 
plus an additional fee of $35 for each group of one to ten alternate 
names used by the service provider, to a flat fee of $6 per 
designation--whether registering a new designation, or amending or 
resubmitting a previously registered designation.\29\ The Office 
solicited comments on the proposed change in fees and received a number 
of comments in response.\30\
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    \28\ Designation of Agent To Receive Notification of Claimed 
Infringement, 81 FR 33153 (May 25, 2016).
    \29\ Id. at 33154.
    \30\ Ass'n of Am. Publishers, Comments Submitted in Response to 
U.S. Copyright Office's May 25, 2016 Notice of Proposed Rulemaking 
(June 24, 2016) (``AAP Fee''); Computer & Commc'ns Indus. Ass'n, 
Comments Submitted in Response to U.S. Copyright Office's May 25, 
2016 Notice of Proposed Rulemaking (June 23, 2016) (``CCIA Fee''); 
Elec. Frontier Found. et al., Comments Submitted in Response to U.S. 
Copyright Office's May 25, 2016 Notice of Proposed Rulemaking (June 
24, 2016) (``EFF Fee''); Internet Ass'n, Comments Submitted in 
Response to U.S. Copyright Office's May 25, 2016 Notice of Proposed 
Rulemaking (``IA Fee'').

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[[Page 75698]]

    Having reviewed and carefully considered all of the public comments 
received in response to the NPRM and the Fee NPRM, the Copyright Office 
now issues a final rule, effective as of the implementation of the new 
electronic system on December 1, 2016, governing the designation of 
agents to receive notifications of claimed infringement with the Office 
pursuant to 17 U.S.C. 512(c)(2), including associated fees. The 
Register's authority to implement such system and promulgate these 
regulations governing the designation of agents and the use and 
operation of the electronic system derive directly from section 
512(c)(2), which explicitly permits the Register to require service 
providers to supply ``contact information which [she] may deem 
appropriate'' and expressly requires the Register to ``maintain a 
current directory of agents available to the public.'' \31\ In 
addition, the Copyright Act gives the Register general authority to 
``establish regulations not inconsistent with law for the 
administration of the functions and duties made the responsibility of 
the Register under this title.'' \32\ Sections 512 and 702 together 
necessarily authorize such regulations as the Register may deem 
appropriate to ensure both a ``current directory'' and that the 
registration system and directory are acceptably ``maintain[ed]'' for 
continued usability. As noted, the purpose of the directory is ``[t]o 
facilitate easy access to the identity of all designated agents'' for 
public use,\33\ and the rule announced today serves this end by 
establishing an electronic system that makes it easier for the public 
to more effectively find current and accurate designated agent contact 
information.
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    \31\ 17 U.S.C. 512(c)(2).
    \32\ Id. at 702.
    \33\ See 4 Nimmer on Copyright 12B.04[B][3].
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II. Discussion

    The new electronic system to designate agents with the Copyright 
Office pursuant to 17 U.S.C. 512(c)(2) will fully replace the paper-
based system implemented through the interim regulations adopted in 
1998. Beginning December 1, 2016, a service provider must use the 
online registration system to electronically submit service provider 
and designated agent information to the Copyright Office. Accordingly, 
as of December 1, 2016, the Office will no longer accept paper 
designations.
    The comments received in response to the NPRM and Fee NPRM indicate 
widespread support for the creation of an electronic registration 
system,\34\ with no commenter suggesting that the paper system should 
be retained. Indeed, given that online service providers, by 
definition, operate in an online environment, an electronic-only 
designation procedure is not only logical but should pose no special 
burden for service providers. In addition, the electronic system 
significantly increases the administrative efficiency of the 
designation process, resulting in a dramatic reduction of costs to the 
Office and, therefore, in the filing fees to be charged to the service 
provider community. Such a system also better ensures that service 
providers will be supplying and maintaining accurate information with 
the Office by making it easier and cheaper to update designations. The 
system includes automatic checks to confirm that the requisite 
information is being provided and will verify certain types of 
submitted data. Moreover, the electronic registration system seamlessly 
integrates with the online directory, making it quicker and easier for 
the public to find a service provider's current designation.
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    \34\ See, e.g., AAP Fee at 1-2; IA Fee at 2; ICC Initial at 1; 
Microsoft Initial at 2; MPAA Initial at 1; Public Knowledge Initial 
at 1.
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    As detailed above, the Copyright Office has confirmed that a 
substantial amount of the designated agent information currently listed 
in the Office's directory is inaccurate or out of date. To ensure that 
the new electronic directory is accurate and up to date, all service 
providers seeking to comply with 17 U.S.C. 512(c)(2), including those 
that have previously designated an agent using the paper process under 
the Office's interim regulations, are required to submit new 
designations through the electronic system by December 31, 2017. 
Moreover, the Office made clear that ``[i]nterim designations filed 
pursuant to these interim regulations will be valid until the effective 
date of the final regulations. At that time, service providers wishing 
to invoke section 512(c)(2) will have to file new designations that 
satisfy the requirements of the final regulations, which will include 
the payment of the fee required under the final regulations.'' \35\
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    \35\ 63 FR at 59234.
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    While service providers must file new designations in the 
electronic system, they will have over a year to do so. Previously 
filed paper designations will continue to satisfy the service 
provider's statutory obligations under section 512(c)(2) until the 
service provider registers electronically, or through December 31, 
2017, whichever occurs earlier. For a further discussion of this aspect 
of the final rule, including responses to public comments, see 
``Phaseout of Paper Directory and Requirement to Register in Electronic 
Directory'' below.
    As under the old system, service providers will be required to keep 
their designations current and accurate by timely updating information 
in the system when it has changed (i.e., ``amending'' their 
designations). Additionally, to help ensure that designations in fact 
remain current and accurate, a service provider's designation will 
expire and become invalid three years after it is registered with the 
Office, unless the service provider renews such designation by either 
amending it to correct or update all relevant information or 
resubmitting it without amendment to confirm the designation's 
continued accuracy. This constitutes the requirement to periodically 
``renew'' a designation. Either amending or resubmitting a designation, 
as appropriate, through the online system begins a new three-year 
period before such designation must be renewed. The new system, which 
will include automated reminders to service providers to review and 
renew their designations, is designed to encourage effective compliance 
with the requirements of section 512(c)(2). It will also better serve 
the public by helping to ensure that service providers maintain current 
information about their designated agents, including up-to-date contact 
information, on file with the Copyright Office, as Congress intended. 
For a further discussion of these aspects of the final rule, including 
responses to public comments, see ``Amending and Renewing a 
Designation'' below.

A. Registering a Service Provider and Designated Agent

    Creating a Registration Account. In order to access the online 
registration system, a service provider must establish an account that 
will be used to log into the system and register itself and its 
designated agent. There is no charge to establish a registration 
account. Registration of any designation with the Office, including any 
subsequent amendment or resubmission (see ``Amending and Renewing a 
Designation'' below) must be made through such an account. To set up a 
registration account, the service provider must select a login ID and

[[Page 75699]]

password, and provide the first name, last name, position or title, 
organization, physical mail address, telephone number, and email 
address of two representatives of the service provider who will serve 
as primary and secondary points of contact for purposes of 
communications with the Copyright Office. These representatives will 
receive automated confirmation emails generated by the system and 
correspondence from the Office, such as notices that a designation 
needs to be renewed and other communications about the system or 
account. The Office may also contact these individuals if there are any 
questions about the designation or registration account. These 
individuals' identities and contact information will not be made 
publicly available in the online directory and are not required to be 
listed on service provider Web sites, as the Office is requiring this 
information pursuant to the Register's statutory authority to 
``maintain'' the directory, not under her authority to require 
additional contact information for inclusion in a service provider's 
designation.\36\ The Office's ability to communicate with these 
individuals is essential to the functioning and continued usability of 
the registration system and directory.
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    \36\ See 17 U.S.C. 512(c)(2) (``The Register of Copyrights shall 
maintain a current directory of agents available to the public. . . 
.'') (emphasis added).
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    The Office notes that one commenting party asked that an email 
address for the individual who actually registered the designation be 
made available in the public directory.\37\ The Office declines to 
adopt this suggestion, as it is not apparent how this information would 
further the statutory purpose of the directory, which is to ensure that 
copyright owners can send notifications of claimed infringement to the 
designated agent of a service provider (rather than the individual who 
may have registered that agent).
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    \37\ RIAA Initial at 2.
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    In the NPRM, the Office mentioned its willingness to consider 
allowing a service provider to delegate responsibility for managing the 
registration process or otherwise administering its account to a third-
party entity.\38\ The Office noted a potential concern with the 
accuracy of the required information if the information is not supplied 
by the service provider itself.\39\ Only one commenter echoed this 
concern, suggesting that a third party might also fail to follow the 
directions of the service provider.\40\ Other commenters disagreed with 
that view, arguing that delegation to third parties is more efficient 
and would be particularly helpful to smaller service providers with 
minimal staffing.\41\ They explained that third-party firms that 
provide assistance to service providers have developed the expertise to 
accurately and efficiently comply with regulatory requirements.\42\ 
Furthermore, they contended that third parties have every incentive to 
be accurate so as to establish a positive reputation to retain and grow 
their client base.\43\
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    \38\ 76 FR at 59954.
    \39\ Id.
    \40\ RIAA Initial at 1.
    \41\ See, e.g., Microsoft Initial at 1-2; MPAA Initial at 3-4; 
Telecomm Parties Initial at 3.
    \42\ Telecomm Parties Initial at 3.
    \43\ Id.
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    After considering these competing comments, the Office finds no 
compelling reason to deny a service provider the option of hiring a 
third party to manage its designation on its behalf, so long as the 
service provider is willing to accept the risk that it could lose the 
safe harbor protections of section 512 if such third party fails to 
provide accurate information and maintain an up-to-date designation at 
the Copyright Office. In light of this conclusion, the electronic 
system has been designed to facilitate third-party management of 
service provider designations. In particular, a single registrant is 
able to use a single account to designate agents (and amend and 
resubmit designations) for multiple service providers.
    Registering a New Designation. Once a registration account has been 
created, an authorized user can log into the account to register a 
service provider's designation with the Office by providing the 
information requested by the system, which is described in detail in 
the section below, ``Information Required for Service Providers and 
Designated Agents.''
    Related Service Providers. An issue that the Office considered in 
designing the new system was whether related or affiliated service 
providers that are separate legal entities (e.g., parent and subsidiary 
companies) should be permitted to file a single, joint designation.\44\ 
Under the interim regulations, related companies were deemed to be 
separate service providers and thus required to file separate 
designations. The Office has received occasional complaints from 
service providers about the inefficiency of this practice. The NPRM 
noted the Office's receptiveness to allowing joint designations, but 
also discussed some of the difficulties it could pose.\45\ Many 
commenters favored allowing joint designation of related service 
providers, perceiving it as more efficient and less costly.\46\ One 
commenter opposed it, stating that the directory's accuracy would be 
better preserved by continuing to require separate designations.\47\
---------------------------------------------------------------------------

    \44\ 76 FR at 59958.
    \45\ Id.
    \46\ See, e.g., CCIA Initial at 1; ICC Initial at 5-6; Microsoft 
Initial at 4; MPAA Initial at 11; Telecomm Parties Initial at 4-5; 
Verizon Initial at 1.
    \47\ RIAA Initial at 4.
---------------------------------------------------------------------------

    After reviewing the comments and working with the Library's 
software development team, the Office has concluded that permitting 
joint designations as originally conceived in the NPRM would needlessly 
complicate the online registration system and would also require a 
significantly more complex and costly development effort. As explained 
above, the Office has designed the system so that a single account user 
can register and manage designations for multiple service providers. 
Thus, a parent company can manage the designations of all of its 
subsidiaries through one central account should it so choose. The 
ability of a single registrant to manage multiple designations, 
combined with the modest fee for registration, set at $6 (see ``Fees'' 
below), should largely address the concerns that would have been 
addressed by permitting joint designations. Accordingly, under the 
final rule, as under the interim rule, related or affiliated service 
providers that are separate legal entities are considered separate 
service providers, and each must have its own separate designation.

B. Information Required for Service Providers and Designated Agents

    The Office has determined that the information required from 
service providers through the online registration system will remain, 
for the most part, the same as has been required under the interim 
regulations. A service provider is required to supply its full legal 
name, physical street address (not a post office box), telephone 
number, email address, any alternate names used by the service 
provider, and the name, organization, physical mail address, telephone 
number, and email address \48\

[[Page 75700]]

of its designated agent. These requirements are described in more 
detail below. Although the system requires contact information for the 
service provider, the designated agent, and the primary and secondary 
contacts for the registration account, the Office notes that the same 
person may serve in multiple roles so long as the primary and secondary 
contacts associated with the registration account are different people.
---------------------------------------------------------------------------

    \48\ The NPRM noted concerns that had previously been expressed 
to the Office about displaying email addresses on the Office's Web 
site, and noted that some had suggested that the Office should 
display email addresses in a format that could not easily be 
harvested by automated software and used for spamming purposes 
(e.g., ``userid at domain dot com''). 76 FR at 59956-57. However, no 
commenter recommended adoption of this suggestion, and instead the 
system will display traditionally formatted email addresses (e.g., 
``userid@domain.com'').
---------------------------------------------------------------------------

    Service Provider's Identity and Alternate Names. The NPRM provided 
that in addition to the legal name of the service provider, the Office 
would require a service provider to list any alternate names under 
which it is doing business (as required under the interim regulations), 
including any names that the service provider would expect members of 
the public to be likely to use to search the directory for the service 
provider's designated agent.\49\ The NPRM explained that such names 
should enable a copyright owner to identify the service provider and 
its designated agent.\50\
---------------------------------------------------------------------------

    \49\ 76 FR at 59959.
    \50\ Id. at 59957.
---------------------------------------------------------------------------

    The Office has modified this provision to clarify that the 
requirement to provide alternate names is not limited solely to names 
under which a service provider is doing business, such as a ``d/b/a'' 
name. Rather, service providers must list all alternate names that the 
public would be likely to use to search for the service provider's 
designated agent in the directory, including all names under which the 
service provider is doing business, Web site names and addresses (i.e., 
URLs, such as ``_.com'' or ``_.org''), software application names, and 
other commonly used names. The purpose of this requirement is to 
identify the service provider sufficiently so that the public can 
locate the service provider's designated agent information in the 
directory.\51\
---------------------------------------------------------------------------

    \51\ The Office declines to adopt the Recording Industry 
Association of America (``RIAA'')'s suggestion to require service 
providers to disclose any shareholders or related groups of 
shareholders with a majority ownership of the service provider and 
any persons or entities with a controlling interest in or 
decisionmaking power over the service provider. See RIAA Initial at 
3; see also Google Reply at 2 (arguing that such a requirement has 
no basis in the statute). The Office does not at this time see 
sufficient justification to burden service providers with such an 
additional requirement.
---------------------------------------------------------------------------

    Separate legal entities, however--such as corporate parents or 
subsidiaries--are not considered alternate names. As noted above, each 
separate legal entity must have its own separately registered 
designation (though such separate designations may be managed by a 
single user through a single registration account).
    Some commenters noted that it could be burdensome to list all of a 
service provider's Web sites in the system.\52\ The Office does not 
believe that such a requirement is unduly onerous, especially when 
weighed against the benefits of allowing the public to search the 
directory using Web site names or addresses rather than the corporate 
names of service providers, which may not be well known. But to 
facilitate compliance with the alternate names requirement, the system 
is designed to allow names to be uploaded in bulk using an Excel 
spreadsheet, in addition to being entered one at a time. Once entered 
or uploaded, the list can be modified as necessary to reflect new and/
or discontinued names. These factors should significantly diminish any 
potential burden associated with providing alternate names.
---------------------------------------------------------------------------

    \52\ See, e.g., Public Knowledge Initial at 12-13 (``[T]he 
Copyright Office can require service providers to list their domain 
names as separate fields in the agent designation form. . . . 
However, even this may result in too burdensome amendment 
requirements for providers that frequently obtain new domain names, 
even if those amendments do not make the service provider actually 
easier to find by a copyright owner.''); see also Microsoft Initial 
at 3-4; MPAA Initial at 11-12.
---------------------------------------------------------------------------

    Contact Information for the Service Provider. As under the interim 
regulations and proposed in the NPRM, the Office is continuing to 
require service providers to supply a physical mail address, pursuant 
to the Register's authority under section 512(c)(2) to require any 
additional contact information the Register deems appropriate. As under 
the interim regulations, a service provider's physical mail address 
will continue to be made public through the online directory and 
remains part of the information that a service provider is required to 
display on its Web site. Furthermore, as the NPRM proposed, the Office 
is requiring that the physical mail address be a street address, and 
not a post office box. The rationale for this requirement is that there 
are circumstances where it is important for a copyright owners to be 
able to physically locate the service provider (e.g., for accurate 
identification of the service provider or to serve a legal notice).\53\ 
Two commenters supported this aspect of the proposal,\54\ and none 
objected.\55\
---------------------------------------------------------------------------

    \53\ Although the Office is requiring a street address for the 
service provider, the Office declines to adopt RIAA's suggestion to 
require proof of this address. See RIAA Initial at 4. RIAA asserted 
that a significant problem facing copyright owners is that 
information provided by service providers is not accurate and the 
information cannot be used to locate the service provider to serve a 
subpoena. Id. While the Office is sympathetic to this concern, the 
Office believes that the new renewal requirement should largely 
resolve this issue.
    \54\ See MPAA Initial at 10; Google Initial at 2 (explaining 
that ``all of'' the NPRM's proposed clarifications concerning 
contact information for service providers ``appear sound'').
    \55\ Although some commenters argued in favor of permitting 
designated agents to provide a post office box in lieu of a street 
address, none objected to requiring service providers to provide a 
street address. See, e.g., CCIA Initial at 1-2; ICC Initial at 6; 
Google Reply at 2. The Office notes that, in rare situations, the 
requirement to provide a street address could raise safety or 
security concerns for an individual who is operating the service. 
The final rule thus provides a mechanism to submit a written request 
for a waiver of the prohibition on post office boxes in exceptional 
circumstances. If the request is approved, the service provider may 
display the post office box address on its Web site and will receive 
instructions from the Office on how to complete the Office's 
electronic registration process. Upon successful completion of the 
registration process in accordance with the Office's instructions, 
the registered designation will not be considered invalid due to any 
failure to comply with the service provider address requirement, and 
the Office will override the system to insert the post office box as 
the service provider's address.
---------------------------------------------------------------------------

    In addition, pursuant to the Register's separate authority to issue 
regulations necessary to ``maintain'' the public directory, the Office 
is now also requiring service providers to provide a telephone number 
and email address, solely for use by the Office for administrative 
purposes essential to the functioning and continued usability of the 
registration system and directory--for example, to send system 
confirmations, renewal reminders, or other notices about its 
designation or the system itself.\56\ A service provider's telephone 
number and email address will not be shown in the public directory, and 
are not required to be displayed on the service provider's Web site.
---------------------------------------------------------------------------

    \56\ Though the NPRM only proposed requiring an email address, 
the Office is now requesting a telephone number as well as an 
alternative and more expedient method for the Office to communicate 
directly with service providers, if necessary.
---------------------------------------------------------------------------

    Agent's Identity. Section 512(c)(2)(A) specifies that to invoke the 
limitation of liability provided under subsection (c), the service 
provider must provide ``the name, address, phone number, and electronic 
mail address of the agent.'' Under the interim regulations, the Office 
initially required the service provider to provide the name of a 
natural person to act as the service provider's designated agent. As a 
result of concerns that personnel changes could inadvertently render 
the designation of a natural person obsolete, however, the Office has 
subsequently allowed service providers to designate a specific position 
or a particular title (e.g., ``Copyright Manager''), rather than

[[Page 75701]]

an individually named person, as its agent.\57\
---------------------------------------------------------------------------

    \57\ This expansion was a matter of internal practice as the 
interim rule has always required the ``name of the agent.'' See 37 
CFR 201.38(c)(3).
---------------------------------------------------------------------------

    The NPRM proposed continuation of the practice of allowing service 
providers to designate an agent either by name or by position or 
title.\58\ The NPRM also stated, however, that the Office was not 
inclined to permit a service provider to designate an entity generally 
(e.g., a law firm or copyright management agency).\59\ The Office 
expressed concern that notices of claimed infringement addressed to a 
general entity, rather than a natural person or specific title, might 
be overlooked or not attended to in a timely fashion, and that 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 email 
address.\60\ The NPRM further proposed, however, that service providers 
be permitted to designate an agent either within the service provider's 
organization itself or at an unrelated third party.\61\
---------------------------------------------------------------------------

    \58\ 76 FR at 59957.
    \59\ Id.
    \60\ Id.
    \61\ Id. The NPRM also stated that the Office was not inclined 
to permit the designation of multiple agents, as doing so would 
unjustifiably complicate the statutory process. Id. All commenters 
seemed to agree with this. See, e.g., MPAA Initial at 10; RIAA 
Initial at 3.
---------------------------------------------------------------------------

    There was widespread support among commenters for maintaining the 
Office's current practice of allowing service providers to designate 
agents by position or title rather than an individual's proper name, 
both to address the problem of personnel changes and to avoid misuse of 
personal information.\62\ Moreover, none of the commenters opposed the 
Office's position that an employee of either the service provider or a 
third party could serve as a designated agent.\63\ There was debate, 
however, concerning whether it would be appropriate to name a third-
party entity as a whole (e.g., a law firm or copyright management 
agency) as an agent. One trade organization representing copyright 
owners was against it, arguing that it would increase the likelihood 
that notices are not handled expeditiously and further complicate the 
ability of rights holders to efficiently contact the individual 
responsible when there are failures to act on notices, to follow up on 
the handling of notices, or to take other action.\64\ But Public 
Knowledge, a public advocacy organization, urged the Office to allow 
designation of third-party entities as a whole, noting that regardless 
of whether the designated agent is a person, title, or entity, it does 
not change the service provider's obligation to respond to notices 
expeditiously.\65\ Public Knowledge further contended that section 512 
does not limit designations to specifically identifiable persons, and 
that at least one federal court has suggested that designating an 
entire department as an agent satisfies the statute.\66\
---------------------------------------------------------------------------

    \62\ See, e.g., Google Initial at 2; Microsoft Initial at 3; 
MPAA Initial at 9-10; Telecomm Parties Initial at 4. Only RIAA 
seemed to oppose this, suggesting that the best way to ensure 
notices reach live persons is to require that they be sent to an 
email address for which a particular employee has responsibility. 
RIAA Initial at 3.
    \63\ Cf. MPAA Initial at 10 (supporting concept of allowing 
service provider employees or third parties to serve as designated 
agents).
    \64\ MPAA Initial at 9.
    \65\ Public Knowledge Initial at 9-11.
    \66\ Id. at 9-10 (citing Hendrickson v. eBay, Inc., 165 F. Supp. 
2d 1082, 1092 n.13 (C.D. Cal. 2001)).
---------------------------------------------------------------------------

    After considering the comments and reevaluating its initial 
inclination with respect to the naming of an individual or position 
versus a department or entity as a whole to serve as a designated 
agent, the Office has concluded that any one of these appears to be a 
reasonable interpretation of the statute. The Office believes, contrary 
to its initial inclination, that the sounder policy is to allow a 
service provider to designate as its agent an individual (e.g., ``Jane 
Doe''), a specific position or title held by an individual (e.g., 
``Copyright Manager''), a specific department within the service 
provider's organization or within a third-party entity (e.g., 
``Copyright Compliance Department''), or a third-party entity generally 
(e.g., ``ACME Takedown Service''). The Office agrees with the point 
made by Public Knowledge that service providers are already obligated 
by statute to respond ``expeditiously'' to take down requests; this is 
true whether they rely on a particular individual, a corporate 
department, or a third-party entity to process their notices. The 
Office is also cognizant of the current realities of the notice-and-
takedown system, where some large service providers now receive 
millions of takedown requests per day, making a requirement that a 
designated agent be a single person simply infeasible.\67\ Indeed, the 
designation of a single person to receive all takedown requests for 
further processing by others would not allay the Office's original 
concerns of overlooked notices and untimely action, but might well work 
against the efficient processing of such requests.\68\
---------------------------------------------------------------------------

    \67\ See, e.g., Chris Welch, Google received over 75 million 
copyright takedown requests in February, VERGE (Mar. 7, 2016), 
https://www.theverge.com/2016/3/7/11172516/google-takedown-requests-75-million (stating that Google received over 75 million DMCA 
takedown requests in a single month and that ``Google is effectively 
processing over 100,000 URLs per hour'').
    \68\ RIAA also urged the Office to require a service provider's 
designated agent to accept service of process on behalf of the 
service provider. RIAA Initial at 3. Google opposed this, stating 
that RIAA's request has no basis in the statute and is contrary to 
its purpose of providing an expeditious, nonjudicial way of removing 
infringing material. Google Reply at 1-2. The Office declines to 
adopt RIAA's suggestion; requiring designated agents to accept 
service of process appears to go beyond the main purpose of the 
statute.
---------------------------------------------------------------------------

    The Copyright Office emphasizes, however, that these changes to the 
rule are in no way intended to excuse the loss or mishandling of 
notices addressed to departments or entities rather than individuals, 
or to otherwise absolve service providers from their statutory 
responsibility to ``respond[ ] expeditiously'' to notices of claimed 
infringement.\69\ Rather, it is the Office's hope that by making these 
practical accommodations--which may be especially useful for service 
providers that receive large volumes of notices--the rule will in fact 
enable greater attention to notices and faster response times.
---------------------------------------------------------------------------

    \69\ See 17 U.S.C. 512(c)(1)(C).
---------------------------------------------------------------------------

    Contact Information for the Designated Agent. In addition to the 
agent's identity, the amended regulations continue to require a 
designated agent's physical mail address, telephone number, and email 
address.\70\ Section 512(c)(2)(A) requires this information to be 
supplied to the Copyright Office and also to appear on the service 
provider's Web site. The interim rule's requirement of a facsimile 
number, however, is being discontinued due to the fact that faxing has 
become a relatively obsolete technology.
---------------------------------------------------------------------------

    \70\ See id. at 512(c)(2)(A). Microsoft requested that in 
addition to this basic information, the Office include an optional 
field in the online system to permit service providers to designate 
a particular Web site location linking to the service provider's 
designated agent contact information or to additional information or 
online tools to use a service provider's specific process for 
receiving notices of claimed infringement. Microsoft Initial at 3-4. 
While service providers have the option of suggesting the use of 
specific procedures on their Web site (in addition to providing 
contact information for a designated agent as required under section 
512(c)(2)), the Office declines to adopt Microsoft's suggestion at 
this time. The Office notes that no other commenter addressed this 
proposal, and the Office has insufficient information at this time 
to determine whether such a proposal should be adopted.
---------------------------------------------------------------------------

    Because an individual serving as a designated agent may be located 
outside of the service provider's organization, the Office is now also 
requiring that the designated agent's organization be identified, when 
applicable. If the designated agent is an individual, a position or 
title, or a department within

[[Page 75702]]

a service provider, the agent's organization would simply be the 
service provider. If the agent is an individual, position or title, or 
a department at a third-party entity, the agent's organization would be 
the legal name of that third-party entity. If the agent is a third-
party entity as a whole, then the name of the agent and the 
organization fields should have the same information. If the agent is 
an individual acting outside of the context of any organization, the 
field can be marked ``None'' or ``N/A.''
    The NPRM proposed permitting post office boxes to serve as a 
designated agent's address due to concerns about agents' privacy and 
safety, particularly where an agent's only address is a home 
address.\71\ A number of commenters echoed these concerns.\72\ Others 
argued that the agent is a public-facing position and rightsholders 
need to be able to contact the agent directly to report claims of 
infringement, including by street address if telephone and email 
efforts prove insufficient.\73\ They further claimed that using a post 
office box provides a layer of anonymity that is not warranted, and 
that requiring a street address better ensures that the agent is a real 
person and the information provided in the designation is reliable.\74\
---------------------------------------------------------------------------

    \71\ 76 FR at 59958.
    \72\ See, e.g., CCIA Initial at 1-2; ICC Initial at 6; Google 
Reply at 2.
    \73\ See, e.g., MPAA Initial at 10; RIAA Initial at 4.
    \74\ See, e.g., MPAA Initial at 10; RIAA Initial at 4. RIAA also 
asserted that where the agent is an individual with only a home 
address, the individual is either the sole owner of the service 
provider (in which case he or she must supply his or her physical 
address anyway as part of the service provider contact information) 
or an employee or consultant of a very small company with no central 
office. RIAA argued that in these situations, the need to supply a 
physical address will underscore the importance of responding to 
notices. RIAA Initial at 4.
---------------------------------------------------------------------------

    After weighing these conflicting viewpoints, the Office has 
determined that, consistent with the proposed rule, the final rule will 
allow a designated agent to specify a post office box and will not 
require a street address. Irrespective of the safety and privacy 
concerns of designated agents, requiring a physical street address is 
unnecessary to achieve the goals of the statute. To satisfy section 
512(c)(2), service providers are required to supply accurate and 
reliable information for their designated agents, regardless of whether 
their agents are using a street address or post office box. While a 
post office box may not be as direct of a point of contact as a street 
address, copyright owners may still contact the designated agent by 
telephone or email. Moreover, allowing use of post office boxes may 
actually allow for faster and more efficient processing of mailed 
notices. For example, a large corporate mailroom receiving a broad mix 
of correspondence might be slower in identifying time-sensitive notices 
and delivering them to the responsible person within the organization. 
In contrast, a post office box could be dedicated solely to the receipt 
of DMCA takedown requests and could be checked directly by the agent.
    Signature and Attestation. The Office has eliminated the signature 
requirement contained in the interim rule. Because all designations in 
the online registration system require the creation of a user account, 
as well as payment via Pay.gov (operated by the U.S. Department of the 
Treasury) with a credit or debit card or a bank account, the system 
reasonably verifies and authenticates the identity of the person 
designating the agent (or amending or resubmitting such designation). 
The registration system as designed by the Library requires each 
account to be protected by a twelve character password, and the Pay.gov 
system additionally requires a credit card or bank account holder name, 
if a credit or debit card, a billing address and card number, and if a 
bank account, the account and routing numbers.
    Furthermore, in designating an agent, or amending or resubmitting 
such designation, the online registration system requires the account 
user to attest both to having the authority of the service provider to 
take that action and to the accuracy and completeness of the 
information being submitted to the Office by checking a box 
acknowledging the user's agreement to such an attestation. The 
transaction cannot be completed without such attestation.\75\
---------------------------------------------------------------------------

    \75\ More generally, existing federal law prohibits the making 
of any ``knowingly and willfully'' ``materially false, fictitious, 
or fraudulent statement[s] or representation[s].'' 18 U.S.C. 
1001(a).
---------------------------------------------------------------------------

C. DMCA Designated Agent Directory

    The new registration system described is directly tied to the 
public, searchable DMCA designated agent directory. Information 
submitted by service providers through the registration system will 
automatically populate in the directory, providing fast and efficient 
public access to designated agent information. Members of the public 
will be able to access the directory through the Office's Web site and 
can search the directory either by service provider name or alternate 
name to obtain contact information for a designated agent. The search 
results will show not only service provider names and alternate names 
matching the search query, but will also indicate whether the agent 
designation is still active.
    Prior Versions of Electronic Designations. The NPRM asked for 
comment on whether earlier versions of electronic designations should 
be made available, free of charge, through the public online directory 
of designated agents, or whether those versions should instead be kept 
offline, and made available to the public only upon request to the 
Copyright Office.\76\ Some commenters argued that listing prior 
versions of designations could create confusion for users as to which 
entry is current and might result in notifications being sent to the 
wrong person.\77\ Others were concerned with the additional cost of 
developing this functionality.\78\ On the other side, some commenters 
asserted that having immediate access to prior versions of designations 
would make it easier to determine whether a service provider qualified 
for safe harbor protection and might also assist scholars in certain 
research pursuits.\79\ Some commenters also suggested that if prior 
versions are included, they be clearly marked as such or maintained in 
a separate part of the directory.\80\
---------------------------------------------------------------------------

    \76\ 76 FR at 59954-55.
    \77\ See, e.g., ICC Initial at 4; MPAA Initial at 5-6.
    \78\ See, e.g., ICC Initial at 4; RIAA Initial at 2.
    \79\ See, e.g., Public Knowledge Initial at 8-9; RIAA Initial at 
2; see also Microsoft Initial at 3.
    \80\ See, e.g., MPAA Initial at 5-6; Public Knowledge Initial at 
8-9.
---------------------------------------------------------------------------

    Having weighed these comments, the Office has decided to make prior 
versions of electronic designations available in the online directory 
so that the public can access them immediately and free of charge. At 
present, the Office plans for the directory to contain prior versions 
going back for up to ten years. Each time a designation is amended or 
resubmitted, the system creates a new version of the designation. 
Additionally, new versions are created whenever a designation, after 
having expired or been terminated, is reactivated. Because the earlier 
records are automatically maintained by the system, there is little 
added cost to the Office to permit users to access this information. 
Such historical information may be useful, for example, in a litigation 
or research context.
    In addition, the Office has designed the directory layout to 
clearly indicate whether a designation is currently active or 
historical, and any results from a search of the directory will 
initially only display the most recent version of a designation. From 
there, a user can then navigate to prior versions of that designation. 
Accordingly, there should

[[Page 75703]]

be little confusion about the status of a particular designation. The 
anticipated ten-year time frame was selected due to concerns that 
displaying more than ten years of records could become voluminous and 
contain large amounts of outdated information that is simply irrelevant 
for the vast majority of users.\81\ Electronic designations filed 
before that ten-year period will be maintained consistent with the 
Office's record retention policies, and would be made available via a 
request for copies of records pursuant to 37 CFR 201.2.
---------------------------------------------------------------------------

    \81\ The design of the system is sufficiently flexible that the 
ten-year period can be increased in the future if there is 
sufficient demand for older records.
---------------------------------------------------------------------------

    Prior Versions of Paper Designations. For the same reasons just 
discussed, following the transition from the current paper-generated 
directory to the new electronically-generated directory (see ``Phaseout 
of Paper Directory and Requirement to Register in Electronic 
Directory'' below), the Office plans to continue to make the paper-
generated directory available on the Office's Web site for ten years 
following the conclusion of the transition period. After this time, 
paper designations filed pursuant to the interim regulations will be 
maintained consistent with the Office's record retention policies, and 
made available via a request for copies of records pursuant to 37 CFR 
201.2.

D. Amending and Renewing a Designation

    Amending a Designation. It is prudent for service providers to keep 
the information in their designations, both on their Web sites and with 
the Office, current and accurate, as courts may find that inaccurate or 
outdated information constitutes a failure to comply with the statutory 
requirements necessary for invoking the limitations on liability in 
section 512. The new online registration system permits a service 
provider to review the accuracy and currency of the information in its 
designation and to amend the designation at any time. The fee for 
amending a designation will initially be set at $6 (see ``Fees'' 
below). Upon successful receipt of payment, the system will confirm, 
both in the system and via email, that the designation has been updated 
in the public directory, and has therefore been renewed as of that date 
(see ``Periodic Renewal of Designations'' below).
    Periodic Renewal of Designations. As discussed above (see 
``Background''), the Office has found that an extremely high number of 
designations in the current directory appear to contain inaccurate or 
outdated information, or are for defunct service providers. In order to 
help maintain the accuracy and utility of the online directory of 
designated agents made available to the public, and to ensure that 
service providers do not inadvertently lose the protections of the 
section 512 safe harbors, the NPRM proposed requiring service providers 
to periodically review their designations and, as necessary, update 
them to correct inaccurate or outdated information, or confirm their 
continued accuracy by resubmitting them through the online system.\82\ 
Under the proposed rule, the renewal period was two years.\83\ The NPRM 
also proposed that the online registration system would send out 
reminder emails ahead of the renewal deadline and explained how that 
process might work.\84\ Lastly, the NPRM proposed that a failure to 
renew would result in the expiration of the designation.\85\
---------------------------------------------------------------------------

    \82\ 76 FR at 59954-55.
    \83\ Id. at 59959.
    \84\ Id. at 59955.
    \85\ Id. at 59955.
---------------------------------------------------------------------------

    A number of commenters opposed the requirement of periodic 
renewal.\86\ Opponents offered several arguments for this positon. They 
argued that once a service provider initially makes a valid 
designation, that designation should remain effective unless and until 
it is amended by the service provider.\87\ Opponents claimed that a 
renewal requirement is contrary to the statute because section 512 does 
not require service providers to take any further action so long as 
their designations remain accurate and up to date, and the Register is 
only authorized to specify additional contact information required for 
new designations--not to impose additional requirements on previously 
registered designations.\88\ They argued that the statute already 
motivates service providers to keep their designations current and 
accurate because failing to do so can result in a loss of safe harbor 
eligibility independent of compliance or noncompliance with any 
Copyright Office-imposed renewal requirement.\89\ They further stated 
that such situations should be adjudicated in court, and that the 
Office should not categorically strip service providers of safe harbor 
eligibility for failing to renew their designations.\90\
---------------------------------------------------------------------------

    \86\ See, e.g., CCIA Initial at 2-6; CCIA Fee at 2-7; EFF 
Initial at 1-3; EFF Fee at 2-5; IA Fee at 2-4; Microsoft Initial at 
2-3; MPAA Initial at 4-5; Neco Initial at 1; Public Knowledge 
Initial at 4-8.
    \87\ See, e.g., EFF Initial at 1; EFF Fee at 2; Neco Initial at 
1.
    \88\ See, e.g., CCIA Initial at 3-5; CCIA Fee at 2-3; IA Fee at 
3; Public Knowledge Initial at 4-8.
    \89\ See, e.g., CCIA Initial at 3-5; CCIA Fee at 5; EFF Initial 
at 3; Microsoft Initial at 2-3; MPAA Initial at 4-5; Public 
Knowledge Initial at 4-8.
    \90\ See, e.g., EFF Initial at 3; Public Knowledge Initial at 8.
---------------------------------------------------------------------------

    Opponents also complained that the proposed renewal requirement was 
an unreasonable burden, especially on smaller service providers.\91\ 
Opponents further argued that the potential loss of safe harbor 
protection would be a disproportionally severe consequence for a 
failure to renew, especially when the failure was due to inattention or 
clerical error rather than purposeful conduct.\92\ They opined that, 
even with an emailed reminder, a service provider might inadvertently 
fail to renew its designation and should not be punished for doing 
so.\93\
---------------------------------------------------------------------------

    \91\ See, e.g., CCIA Fee at 3-4; EFF Initial at 2-3; EFF Fee at 
4; MPAA Initial at 4-5; Neco Initial at 1; Public Knowledge Initial 
at 5, 7-8; IA Fee at 3.
    \92\ See, e.g., CCIA Initial at 5; EFF Initial at 2; EFF Fee at 
3; IA Fee at 3.
    \93\ See, e.g., Neco Initial at 1.
---------------------------------------------------------------------------

    On the other side, trade associations representing both copyright 
owners and a coalition of large internet companies, including broadband 
providers and technology companies like Amazon, eBay and Google, agreed 
with the NPRM that renewal is important to address the issue of stale 
information and ensure the continued accuracy of the directory.\94\ 
These associations also agreed that two years is an appropriate time 
frame for the requirement.\95\ Furthermore, the Department of 
Commerce's Internet Policy Task Force examined this aspect of the 
Office's proposal and expressed no objection to it; indeed, it stated 
that it ``support[ed] the Copyright Office's efforts.'' \96\
---------------------------------------------------------------------------

    \94\ ICC Initial at 3-4; RIAA Initial at 2; see also Verizon 
Initial at 1.
    \95\ ICC Initial at 3-4; RIAA Initial at 2.
    \96\ Department of Commerce Internet Policy Task Force, 
Copyright Policy, Creativity, and Innovation in the Digital Economy 
59 (2013).
---------------------------------------------------------------------------

    Having considered the competing views of stakeholders concerning 
the renewal requirement--as well as its own research into the accuracy 
of the listings under the existing paper system without a renewal 
requirement--the Office concludes that in order to ``maintain a current 
directory'' of designated agents, as the Register is obligated to do 
under section 512(c)(2), the Office should adopt a periodic renewal 
requirement. That said, in view of the concerns expressed by some 
regarding the burden of renewal--particularly with respect to smaller 
entities--the Office believes it is reasonable to extend the renewal 
period from two years to three.
    A service provider may fulfill the periodic renewal requirement by 
reviewing its existing designation and either amending it to correct or 
update

[[Page 75704]]

information or, if the information is still accurate and no changes are 
necessary, simply resubmitting it through the online system without 
amendment--a process that should take no more than a few minutes.\97\ 
The fee to amend or resubmit a designation in connection with the 
renewal requirement will initially be set at $6 (see ``Fees'' below).
---------------------------------------------------------------------------

    \97\ The Office declines to adopt the suggestion of the Motion 
Picture Association of America (``MPAA'') that an account user 
managing multiple designations be allowed to renew all of them 
simultaneously without having to review each designation 
individually. See MPAA Initial at 5. The purpose of renewal is to 
require a service provider that has not reviewed or updated its 
designation during the previous three-year period to examine the 
designation to make sure it is still correct. MPAA's suggestion 
would be contrary to that goal.
---------------------------------------------------------------------------

    The final rule also makes clear that the three-year renewal period 
will be reset after a service provider either amends or resubmits its 
designation through the online system. To illustrate, if a service 
provider registers a new designation on January 1, 2017, and thereafter 
makes no amendment to that designation, it must renew the designation 
prior to January 1, 2020. But if that service provider instead amends 
its initial designation on March 1, 2019 to update it with new 
information, the three-year renewal clock is reset, and March 1, 2022 
becomes the date prior to which the service provider must renew the 
designation.
    To alleviate any concern that a service provider may accidentally 
forget to renew its designation during the three-year period, the 
online registration system will automatically generate a series of 
reminder emails well in advance of the renewal deadline to every email 
address associated with the service provider in the system (including 
the primary and secondary account contacts, the service provider, and 
the designated agent).
    Should a service provider fail to renew within the allotted time, 
the designation will expire and become invalid, resulting in its being 
labeled as ``terminated'' in the directory. The primary and secondary 
account contacts, service provider, and designated agent will be 
notified of this. A service provider whose designation has expired, 
however, will be able to reactivate the expired designation by logging 
into the system and following the same process as a renewal (including 
payment of the applicable fee). Once the process is complete and 
payment has been successfully received, the designation will no longer 
be invalid and will be relabeled as ``active'' in the directory. 
Reactivation of a designation will create a new version of the 
designation in the historical record (see ``Prior Versions of 
Electronic Designations'' above). Thus, the directory will show a gap 
in time between expiration and reactivation, during which the service 
provider had no active designated agent listed in the Office's 
directory.
    The Copyright Office finds the arguments made against the renewal 
requirement unpersuasive. First, imposition of a renewal requirement is 
within the authority delegated to the Office by the Copyright Act. 
Section 512(c)(2) not only requires service providers to maintain up-
to-date information, but explicitly obligates the Register of 
Copyrights to ``maintain a current directory of agents available to the 
public.'' \98\ The Register's obligation to maintain a ``current 
directory'' exists separate and apart from the obligations placed on 
service providers themselves.\99\ Accordingly, the Register has the 
authority to issue rules designed to ensure that the directory remains 
``current.'' \100\
---------------------------------------------------------------------------

    \98\ See 17 U.S.C. 512(c)(2) (emphasis added).
    \99\ Indeed, an opponent of the renewal requirement, the 
Computer and Communications Industry Association (``CCIA''), 
acknowledged that Congress assigned the burden of maintaining a 
``current'' directory to the Register. See CCIA Initial at 4.
    \100\ See 17 U.S.C. 702 (authorizing the Register to ``establish 
regulations not inconsistent with law for the administration of the 
functions and duties made the responsibility of the Register under 
this title'').
---------------------------------------------------------------------------

    Second, contrary to opponents' arguments, relying on service 
providers' general statutory obligation to maintain accurate 
designations is an inadequate means of ensuring the directory remains 
current. For instance, the Office's interim regulations have long 
obligated service providers to affirmatively notify the Office when 
they terminate operations.\101\ But, as discussed above, this 
obligation is not often satisfied. Moreover, as also discussed above, 
even as to service providers that remain in business, a significant 
number of designations in the existing directory are out of date or 
inaccurate.\102\
---------------------------------------------------------------------------

    \101\ See 37 CFR 201.38(g).
    \102\ In the Fee NPRM, the Office estimated--for the purposes of 
the fee calculation--that 75% to 85% of designations in the current 
directory were for active service providers. 81 FR at 33154. In 
responding to that proposal, one commenter implied that this 
estimate militates against requiring periodic renewal of 
designations or mandatory electronic submission of previously filed 
paper designations, stating that ``the Office itself concedes in the 
NPRM that the current registrations are generally accurate.'' See 
CCIA Fee at 5. This logic is mistaken. First, it is sufficiently 
problematic if as many as 25% of the designations currently in the 
system (i.e., approximately 5,825 designations) are for service 
providers that are no longer in business. Second, the estimate made 
in the Fee NPRM does not account for the high number of inaccurate 
or outdated designations filed by service providers that are still 
in business (as previously noted above). The periodic renewal and 
mandatory electronic submission requirements are aimed at mitigating 
that problem as well.
---------------------------------------------------------------------------

    One commenter stated that the presence of designations by defunct 
service providers is harmless because the public will not be searching 
for them.\103\ But there are many cases where this would not be true. 
For instance, as discussed in the ``Conflicting Designations'' section 
below, where one service provider is purchased by or merges with 
another service provider and fails to terminate its designation in the 
Copyright Office's directory, there could be conflicting information in 
the directory (e.g., duplicate entries referencing web properties that 
were transferred in the sale) absent some regular process to clear out 
inactive designations. Similar confusion could result if a defunct 
domain name is purchased by another entity, who then files a 
conflicting designation in the system. In any event, the commenter's 
critique ignores the high prevalence of noncompliant designations for 
service providers that continue to be in business.
---------------------------------------------------------------------------

    \103\ See CCIA Initial at 2-3; CCIA Fee at 6.
---------------------------------------------------------------------------

    Third, with respect to the burden imposed and severity of the 
consequences for the failure to renew, opponents' arguments are 
significantly overstated. Renewal--which will initially cost a mere $6, 
take minutes to complete, and need only be attended to when information 
has changed or once every three years--should be a manageable 
proposition for even the smallest of service providers. Nor does the 
rule create ``a trap for the unwary'' as some opponents allege; \104\ 
as explained above, the system is designed to send a series of 
reminders to all email addresses associated with a service provider, 
including its designated agent. If, after those multiple reminders, a 
service provider fails to renew its designation, it can hardly be said 
to have let its designation lapse unwittingly. In addition, given that 
service providers already routinely manage an array of other recurring 
obligations that are integral to their businesses--including business

[[Page 75705]]

licenses,\105\ software licenses,\106\ trademarks,\107\ web 
hosting,\108\ leases on web domain names,\109\ real estate leases, and 
insurance policies--the Office cannot see how such a renewal 
requirement could be viewed as excessively burdensome. At the same 
time, such a requirement carries significant benefits both for the 
public and for the service providers themselves, by ensuring that up-
to-date information is maintained in the system, and that information 
from defunct service providers is cleared out of the system.\110\
---------------------------------------------------------------------------

    \104\ See, e.g., CCIA Initial at 5; CCIA Fee at 3; MPAA Initial 
at 4-5.
    \105\ See, e.g., New Business Registration, S.F. Treasurer & Tax 
Collector, https://sftreasurer.org/registration (last visited Oct. 
12, 2016) (San Francisco requires renewal every year); Business 
License Frequently Asked Questions, L.A. County Treasurer & Tax 
Collector, https://ttc.lacounty.gov/proptax/Business_License_FAQ.htm 
(last visited Oct. 12, 2016) (Los Angeles requires renewal every 
year); Frequently Asked Questions: Business Licensing, Dep't of 
Consumer & Reg. Aff., https://dcra.dc.gov/node/545242 (last visited 
Oct. 12, 2016) (District of Columbia requires renewal every two 
years).
    \106\ See, e.g., Comparison of Creative Cloud Plans, ADOBE, 
https://creative.adobe.com/plans (last visited Oct. 12, 2016) 
(requiring monthly or annual renewal).
    \107\ See 15 U.S.C. 1059(a) (requiring renewal every ten years).
    \108\ See, e.g., List of Web Hosting Plans, GoDaddy, https://www.godaddy.com/hosting/web-hosting-config-new.aspx?src=gs&plan=plesk_tier1_036mo (last visited Oct. 12, 2016) 
(requiring renewal between every three and thirty-six months 
depending on plan).
    \109\ See, e.g., FAQs, ICANN, https://www.icann.org/resources/pages/faqs-2014-01-21-en (last visited Oct. 12, 2016) (leases on web 
domain names may need to be renewed as often as every year, and at 
minimum must be renewed every ten years).
    \110\ The renewal requirement is nothing like the copyright 
formalities referenced by commenters. See, e.g., CCIA Initial at 5; 
CCIA Fee at 6-7. Renewal is necessary to maintain a current and 
accurate directory and should in many cases actually assist service 
providers in retaining their safe harbor, rather than serving to 
deprive them of it.
---------------------------------------------------------------------------

    Indeed, while opponents highlight the consequences of failing to 
comply with the renewal requirement, the fact is that opponents' 
preferred solution--which would rely on service providers to remember 
to update their information with the Copyright Office--is more likely 
to lead to negative consequences. Under the current regime, a service 
provider (particularly a smaller or less sophisticated one) might file 
its designation with the Copyright Office once, and easily forget to 
amend the designation as its information changes, sometimes years 
later.\111\ As a trade association opposing the renewal requirement 
correctly observed, a ``failure to comply with the existing 
requirements [of section 512] results in the loss of service providers' 
safe harbor.'' \112\ That is not a better result for service 
providers.\113\
---------------------------------------------------------------------------

    \111\ As to any argument that the system should only generate 
reminder notices, the Office believes that requiring service 
providers to actively review and either amend or resubmit their 
information is much more likely to lead to current and accurate 
information in the directory. In addition, simply sending out 
reminders would not help clear out defunct service providers from 
the system.
    \112\ CCIA Fee at 5.
    \113\ At the same time, the Office emphasizes that if a service 
provider's designated agent information changes within the three-
year period before renewal is required, a service provider that 
wishes to remain compliant should promptly submit amended 
information to the Office (in addition to updating its Web site).
---------------------------------------------------------------------------

E. Phaseout of Paper Directory and Requirement To Register in 
Electronic Directory

    As of the effective date of this rule, the Office will no longer 
accept paper designations and amendments; service providers must use 
the online system to submit designations. Furthermore, service 
providers that have previously designated agents with the Office under 
the interim regulations must submit new designations through the 
electronic system. The final rule gives service providers a generous 
period--until December 31, 2017--to register their designations in the 
online system. Previously filed paper designations will continue to be 
effective until the service provider has registered using the new 
online system or through December 31, 2017, whichever is earlier.
    As discussed above (see ``Prior Versions of Paper Designations'' 
above), the Office will continue to maintain the old paper-generated 
directory on its Web site during the transition period and for ten 
years following it, in addition to the new electronically-generated 
directory. During the 13-month transition period--that is, through 
December 31, 2017--members of the public will need to search both 
directories for designated agent information, since a service provider 
may have a valid designation in either. To the extent there is a 
discrepancy between designations registered in the old and new systems, 
the information in the new directory will control. As of January 1, 
2018, all paper designations will become invalid and only those 
designations made through the online registration system will satisfy 
the statutory requirement for designating an agent with the Copyright 
Office.
    The Office is requiring service providers who have previously filed 
a paper designation to register in the electronic system for two 
principal reasons. First, as discussed above, the old paper-generated 
directory contains a significant amount of outdated information, 
including information about service providers that no longer exist. The 
electronic submission requirement will encourage service providers that 
have neglected to update their designations to provide updated 
information as necessary. Second, for the Office to migrate information 
from the old directory into the new directory would require extensive 
manual review and data entry, an effort that would be extraordinarily 
burdensome and expensive for the Office to undertake. The old directory 
consists of approximately 23,300 designations, all in PDF format. It 
would be a significant drain on the Copyright Office's limited 
resources to have Office personnel manually transfer information from 
the PDFs into the new database.\114\ And, after all of this effort, the 
end result would be a new electronic database full of obsolete and 
erroneous records.
---------------------------------------------------------------------------

    \114\ Some commenters asked the Office to explore technological 
means of transferring data from the old directory automatically into 
the new one. See, e.g., MPAA Initial at 3; Public Knowledge Initial 
at 6. The paper designations, however, are not all in the same 
format, and some have been filled out by hand. In any event, as 
explained, even assuming that information could be easily 
transferred into the new directory, there remains the underlying 
problem concerning the significant amount of outdated information in 
the old directory.
---------------------------------------------------------------------------

    The arguments made by commenters opposed to the requirement to re-
register in the electronic system were essentially the same as those 
made by commenters opposed to renewals: It is burdensome, it is a trap 
for the unwary, it imposes potentially harsh consequences for 
noncompliance, and the Office lacks authority to implement it.\115\ 
But, as the, the Office made clear in its interim regulations in 1998 
that ``[i]nterim designations filed pursuant to these interim 
regulations will be valid until the effective date of the final 
regulations. At that time, service providers wishing to invoke section 
512(c)(2) will have to file new designations that satisfy the 
requirements of the final regulations, which will include the payment 
of the fee required under the final regulations.'' \116\ Therefore, it 
was always understood that there would be a requirement to re-register 
upon the adoption of a final rule. Moreover, as noted, requiring 
electronic registration is an effective means of ensuring that the 
Copyright Office can fulfill its statutory duty of maintaining a 
``current'' directory of designated agents. It is not a trap for the 
unwary; service providers will have over a year to submit their 
designations through the

[[Page 75706]]

online process. In addition, the Office plans to engage in public 
outreach activities to ensure that service providers are aware of the 
new system and the electronic submission requirement.\117\
---------------------------------------------------------------------------

    \115\ See, e.g., CCIA Initial at 2-5; EFF Initial at 2-3; MPAA 
Initial at 3; Public Knowledge Initial at 3-7.
    \116\ 63 FR at 59234.
    \117\ Again, the Department of Commerce's Internet Policy Task 
Force expressed no objection to this aspect of the Office's 
proposal, and instead stated that it ``support[ed] the Copyright 
Office's efforts.'' Department of Commerce Internet Policy Task 
Force, Copyright Policy, Creativity, and Innovation in the Digital 
Economy 59 (2013).
---------------------------------------------------------------------------

F. Fees

    In keeping with the specific fee-setting authority in section 
512(c)(2), the NPRM proposed establishing fees to designate 
agents.\118\ It also proposed continuing to charge additional fees for 
alternate names.\119\ Following the NPRM, the Office issued the Fee 
NPRM, which proposed reducing the current registration fee from $105 
(plus an additional fee of $35 for each group of one to ten alternate 
names used by the service provider), to a flat fee of $6 per 
designation--whether registering a new designation, or amending or 
resubmitting a previously registered designation.\120\ The Fee NPRM 
explained that the old fee reflected the cost to the Office of 
receiving, reviewing, scanning, and posting the paper designations 
submitted by service providers, which has been a largely manual 
process.\121\ The Office believed that based on an analysis of the cost 
of operating and maintaining the new electronic system, the fee to 
designate an agent to receive a notification of claimed infringement 
could be much lower, and should be established at $6 per 
designation.\122\ The Office believed that an additional fee to include 
alternate names with a designation was not warranted because the Office 
did not foresee appreciable additional costs due to service provider 
submission of alternate names through the online process.\123\ The 
Office explained that the significantly lower proposed fee reflected 
the far greater efficiency of the electronic system for the Copyright 
Office.\124\
---------------------------------------------------------------------------

    \118\ See 76 FR at 59956.
    \119\ Id.
    \120\ 81 FR at 33154.
    \121\ Id.
    \122\ Id.
    \123\ Id.
    \124\ Id.
---------------------------------------------------------------------------

    Although some comments filed in response to the NPRM argued against 
imposition of any fee, or for the imposition of a reduced fee, in 
certain cases,\125\ those particular points were not renewed in 
response to the Fee NPRM, likely due to the modesty of the fee 
adopted.\126\ Significantly, no commenter specifically argued against 
setting the fee at $6.\127\ In any event, the Office sees no reason to 
provide reduced fees or no fees for renewals, amendments, or 
resubmissions, which would result in needing to charge higher fees for 
initial designations in the new system. The Office declines to 
structure the fee this way, as it is fairer to impose the ongoing costs 
of the system on those service providers that continue to use the 
system, rather than requiring a higher upfront fee regardless of how 
long a service provider maintains a designation. Therefore, pursuant to 
the Register's authority under sections 512(c)(2) and 708(a) of title 
17,\128\ and for the reasons described in the Fee NPRM, the Office 
adopts the $6 fee as originally proposed.
---------------------------------------------------------------------------

    \125\ Some commenters argued that charging any fee for 
amendments would discourage timely updates to designations. See, 
e.g., MPAA Initial at 6-7; RIAA Initial at 2; Telecomm Parties 
Initial at 5. Others argued that no fee should be assessed for 
renewals or that fees for renewals should be less than for an 
initial designation. See, e.g., ICC Initial at 3-4; Verizon Initial 
at 1. Still others asserted that no fee should be assessed for 
electronic submission of designations contained in the old paper-
generated directory. See, e.g., Public Knowledge Initial at 6-7.
    \126\ Many of the arguments regarding the fee made in response 
to the Fee NPRM were simply vehicles to contest the requirement that 
service providers must re-register electronically and periodically 
renew their designations. See CCIA Fee at 2-7; EFF Fee at 2-5; IA 
Fee at 2-4. These arguments have been addressed. See ``Periodic 
Renewal of Designations'' and ``Phaseout of Paper Directory and 
Requirement to Register in Electronic Directory'' above.
    \127\ The Office declines to adopt EFF's proposals to offer an 
option for service providers to make single one-time registration to 
remain permanently effective and to restructure the fee so that the 
same revenue can be collected without the renewal requirement. See 
EFF Fee at 2, 5. Permitting either of these would defeat the purpose 
of the renewal requirement, which is to ensure a current and 
accurate directory--not to generate funds for the Office beyond its 
costs. If the Office had determined that renewal was unnecessary, 
the fee would have been adjusted accordingly.
    \128\ See 17 U.S.C. 512(c)(2) (authorizing the Register of 
Copyrights to ``require payment of a fee by service providers to 
cover the costs'' of maintaining a directory of agents designated to 
receive notifications of claimed infringement); id. 708(a) (more 
generally authorizing the Register to fix fees for Office services 
based on the cost of providing the service).
---------------------------------------------------------------------------

G. Miscellaneous Issues

    Conflicting Designations. As discussed in the NPRM, there is a 
potential concern with duplicative entries in the directory that can 
arise when a service provider transfers one of the Web sites it 
controls to another company, but fails to update its designation to 
remove that Web site from the list of alternate names.\129\ As a 
result, when the purchasing company registers or updates its 
designation with the Office and lists the purchased Web site as an 
alternate name, there may be conflicting entries in the public 
directory associated with that alternate name--one pointing to the 
seller's designation and the other pointing to the purchaser's 
designation. A similar problem can occur when a service provider itself 
is acquired, and the acquired service provider's designation is not 
terminated, either because the acquired service provider has no 
incentive to do so itself, or because the purchasing entity does not 
have access to the acquired service provider's designated agent 
registration account. These scenarios can create confusion if copyright 
owners find two different agents identified in the directory for the 
same Web site or same service provider.
---------------------------------------------------------------------------

    \129\ 76 FR at 59955-56.
---------------------------------------------------------------------------

    The NPRM proposed two potential solutions to this problem.\130\ The 
first option was to simply allow both designations to exist in the 
online directory until expiration of the renewal period of the old 
designation; at that time, the old designation would either expire or 
be updated with accurate information. In the meantime, people seeking 
the identity of and contact information for a service provider's agent 
could find two inconsistent listings for the service provider's 
designated agent. The NPRM suggested that users could cover themselves 
by serving a notice of claimed infringement on both the old and the new 
designated agent. The second option was to include, as part of the 
final rule, a requirement that the seller, who has control of the 
existing entry in the online registration system, amend the designation 
or terminate it as appropriate. Commenters offered competing ideas for 
how best to resolve the issue of conflicting designations.\131\ Having 
weighed these comments, the Office concludes that it should not impose 
any requirements on a buyer or seller to update or terminate the prior 
designation. The Office sees no good way to enforce such a requirement, 
and remains disinclined to involve itself in policing the system for 
conflicting entries. As noted above, the Office also believes that the 
concern about

[[Page 75707]]

conflicting entries is mitigated by the periodic renewal requirement, 
as the outdated designations will be updated or expire after three 
years. But to help minimize conflicting entries, the Office has 
designed the system to warn a registration account user if he or she 
attempts to register a designation for a service provider with the same 
name as a service provider that has already been registered in the 
system. The system will not, however, bar the creation of the new 
designation, as it is possible for two service providers to 
legitimately have the same name.
---------------------------------------------------------------------------

    \130\ Id.
    \131\ See, e.g., Microsoft Initial at 3 (supporting requiring 
either the seller or buyer to amend the existing designation or 
replace it with a new designation); MPAA Initial at 7 (opposing 
imposing a requirement on sellers or buyers, noting the lack of an 
enforcement mechanism); ICC Initial at 5 (urging that any concern is 
mitigated by the renewal requirement, and that sending notices to 
two agents in the meantime is not a significant inconvenience for 
copyright owners); RIAA Initial at 2 (suggesting that the system be 
designed to inform service providers of conflicting designations).
---------------------------------------------------------------------------

    Purported Abuse of the DMCA Notice-and-Takedown System. Some 
commenters requested that the Office use this opportunity to take 
specific steps to address various alleged ``ongoing abuses'' of the 
DMCA notice-and-takedown system by copyright owners, such as where it 
is used (1) in connection with peer-to-peer file sharing activities 
where the material alleged to be infringed does not reside on a service 
provider's system or network, (2) in connection with trademark 
infringement, where the process does not apply, (3) in situations where 
material is protected by fair use, and (4) as an abusive litigation 
tactic in ``copyright troll'' lawsuits.\132\ They noted that such 
misuse significantly burdens service providers, making it more 
difficult to respond to legitimate notices and slowing down that 
process.\133\ They specifically asked that the Office present users of 
the online directory with a prominent warning and informational notice 
describing proper use of the notice-and-takedown process, warning 
against improper use, and alerting users to the potential penalties 
under section 512(f) for making material misrepresentations.\134\
---------------------------------------------------------------------------

    \132\ See, e.g., ICC Initial at 7-8; Verizon Initial at 2.
    \133\ See, e.g., ICC Initial at 7-8; Verizon Initial at 2.
    \134\ See, e.g., ICC Initial at 7-8; Verizon Initial at 2.
---------------------------------------------------------------------------

    The Office believes that this rulemaking and the online directory 
are not the proper forums to attempt to police rights holders who send 
improper notices or otherwise misuse the process. The Office notes that 
in fact, such issues are among those currently being reviewed in the 
Office's pending study of section 512.\135\ The Office has, however, 
included information on the front page of the system describing the 
statutorily required elements for notices.
---------------------------------------------------------------------------

    \135\ See Section 512 Study: Notice and Request for Public 
Comment, 80 FR 81862 (Dec. 31, 2015).
---------------------------------------------------------------------------

    Clarity and Readability Edits. In addition to adjustments to the 
NPRM's proposed regulatory language reflecting the foregoing 
conclusions, the Copyright Office has made additional non-substantive 
modifications for purposes of clarity and readability.

List of Subjects in 37 CFR Part 201

    Copyright.

Final Regulations

    For the reasons set forth above, the Copyright Office amends 37 CFR 
part 201 as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority:  17 U.S.C. 702.

0
2. Amend Sec.  201.3 by revising paragraph (c)(17) to read as follows:


Sec.  201.3   Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Division.

* * * * *
    (c) * * *

------------------------------------------------------------------------
      Registration, recordation, and related services         Fees ($)
------------------------------------------------------------------------
 
                              * * * * * * *
(17) Designation of agent under 17 U.S.C. 512(c)(2) to                6
 receive notification of claimed infringement, or
 amendment or resubmission of designation.................
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

0
3. 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 pursuant to which 
service providers may designate agents to receive notifications of 
claimed infringement pursuant to section 512 of title 17 of the United 
States Code. Any service provider seeking to comply with section 
512(c)(2) of the statute must:
    (1) Designate an agent by making available through its service, 
including on its Web site in a location accessible to the public, and 
by providing to the Copyright Office, the service provider and 
designated agent information required by paragraph (b) of this section;
    (2) Maintain the currency and accuracy of the information required 
by paragraph (b) both on its Web site and with the Office by timely 
updating such information when it has changed; and
    (3) Comply with the electronic registration requirements in 
paragraph (c) to designate an agent with the Office.
    (b) Information required to designate an agent. To designate an 
agent, a service provider must make available through its service, 
including on its Web site in a location accessible to the public, and 
provide to the Copyright Office in accordance with paragraph (c) of 
this section, the following information:
    (1)(i) The full legal name and physical street address of the 
service provider. Related or affiliated service providers that are 
separate legal entities (e.g., corporate parents and subsidiaries) are 
considered separate service providers, and each must have its own 
separate designation.
    (ii) A post office box may not be substituted for the street 
address for the service provider, except in exceptional circumstances 
(e.g., where there is a demonstrable threat to an individual's personal 
safety or security, such that it may be dangerous to publicly publish a 
street address where such individual can be located) and, upon written 
request by the service provider, the Register of Copyrights determines 
that the circumstances warrant a waiver of this requirement. To obtain 
a waiver, the service provider must send a signed letter, addressed to 
the ``U.S. Copyright Office, Office of the General Counsel'' and sent 
to the address for time-sensitive requests set forth in section 
201.1(c)(1), containing the following information: The name of the 
service provider; the post office box address that the service provider 
wishes to use; a detailed statement providing the

[[Page 75708]]

reasons supporting the request, with explanation of the specific 
threat(s) to an individual's personal safety or security; and an email 
address and/or physical mail address for any responsive correspondence 
from the Office. There is no fee associated with making this request. 
If the request is approved, the service provider may display the post 
office box address on its Web site and will receive instructions from 
the Office as to how to complete the Office's electronic registration 
process.
    (2) All alternate names that the public would be likely to use to 
search for the service provider's designated agent in the Copyright 
Office's online directory of designated agents, including all names 
under which the service provider is doing business, Web site names and 
addresses (i.e., URLs), software application names, and other commonly 
used names. Separate legal entities are not considered alternate names.
    (3) The name of the agent designated to receive notifications of 
claimed infringement and, if applicable, the name of the agent's 
organization. The designated agent may be an individual (e.g., ``Jane 
Doe''), a specific position or title held by an individual (e.g., 
``Copyright Manager''), a specific department within the service 
provider's organization or within a third-party entity (e.g., 
``Copyright Compliance Department''), or a third-party entity generally 
(e.g., ``ACME Takedown Service''). Only a single agent may be 
designated for each service provider.
    (4) The physical mail address (street address or post office box), 
telephone number, and email address of the agent designated to receive 
notifications of claimed infringement.
    (c) Electronic registration with the Copyright Office. Service 
providers designating an agent with the Copyright Office must do so 
electronically by establishing an account with and then utilizing the 
applicable online registration system made available through the 
Copyright Office's Web site. Designations, amendments, and 
resubmissions submitted to the Office in paper or any other form will 
not be accepted. All electronic registrations must adhere to the 
following requirements:
    (1) Registration information. All required fields in the online 
registration system must be completed in order for the designation to 
be registered with the Copyright Office. In addition to the information 
required by paragraph (b) of this section, the person designating the 
agent with the Office must provide the following for administrative 
purposes, and which will not be displayed in the Office's public 
directory and need not be displayed by the service provider on its Web 
site:
    (i) The first name, last name, position or title, organization, 
physical mail address (street address or post office box), telephone 
number, and email address of two representatives of the service 
provider who will serve as primary and secondary points of contact for 
communications with the Office.
    (ii) A telephone number and email address for the service provider 
for communications with the Office.
    (2) Attestation. For each designation and any subsequent amendment 
or resubmission of such designation, the person designating the agent, 
or amending or resubmitting such designation, must attest that:
    (i) The information provided to the Office is true, accurate, and 
complete to the best of his or her knowledge; and
    (ii) He or she has been given authority to make the designation, 
amendment, or resubmission on behalf of the service provider.
    (3) Amendment. All service providers must ensure the currency and 
accuracy of the information contained in designations submitted to the 
Office by timely updating information when it has changed. A service 
provider may amend a designation previously registered with the Office 
at any time to correct or update information.
    (4) Periodic renewal. A service provider's designation will expire 
and become invalid three years after it is registered with the Office, 
unless the service provider renews such designation by either amending 
it to correct or update information or resubmitting it without 
amendment. Either amending or resubmitting a designation, as 
appropriate, begins a new three-year period before such designation 
must be renewed.
    (d) 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 fee for a service provider to designate an agent 
with the Copyright Office to receive notifications of claimed 
infringement and to amend or resubmit such a designation.
    (e) Transitional provisions. (1) As of December 1, 2016, any 
designation of an agent pursuant to 17 U.S.C. 512(c)(2) must be made 
electronically through the Copyright Office's online registration 
system.
    (2) A service provider that has designated an agent with the Office 
under the previous version of this section, which was effective between 
November 3, 1998 and November 30, 2016, and desires to remain in 
compliance with section 512(c)(2) of title 17, United States Code, must 
submit a new designation electronically using the online registration 
system by December 31, 2017. Any designation not made through the 
online registration system will expire and become invalid after 
December 31, 2017.
    (3) During the period beginning with the effective date of this 
section, December 1, 2016, through December 31, 2017 (the ``transition 
period''), the Copyright Office will maintain two directories of 
designated agents: the directory consisting of paper designations made 
pursuant to the prior interim regulations (the ``old directory''), and 
the directory consisting of designations made electronically through 
the online registration system (the ``new directory''). During the 
transition period, a compliant designation in either the old directory 
or the new directory will satisfy the service provider's obligation 
under section 512(c)(2) of title 17, United States Code to designate an 
agent with the Copyright Office.

    Dated: October 26, 2016.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.

Approved by:

Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2016-26257 Filed 10-31-16; 8:45 am]
 BILLING CODE 1410-30-P