If you’ve had to file a DMCA notice and been unable to locate the contact information for the agent on the website of the host, you’ve probably turned the U.S. Copyright Office’s (USCO) director of DMCA agents.
If you’ve done that, then you know well just how much of a mess it is.
The proposed changes, which include a modernization of the database, a requirement that online service providers (OSPs) confirm their information every two years and enabling electronic filing of DMCA agent information, are clearly both long overdue and crucial for the DMCA process to work well.
However, to understand why these changes are so important, we first have to look at how things are handled now and how they can improve.
How Things Are Handled Today
When the DMCA took effect in 1998, it required OSPs, if they didn’t want to risk liability for actions infringing content uploaded by users, to provide contact information for a designated agent to receive notices of copyright infringement, or DMCA agent.
However, though lawmakers put the burden of maintaining this director on the Copyright Office, they didn’t provide any funds or means to do it. As such, The USCO simply whipped up a temporary form (which, 13 years later, is still referred to as the “Interim” form) and had OSPs fill it out.
The form, which has remained unchanged saved minor modifications, has to be mailed in along with payment of at least $105. When it arrives, it is scanned and placed on the site in an image-only PDF format under the names listed on the form.
Those interested in filing a DMCA notice then have to then go to the directory, find the correct letter (which can be tough as some hosts have many names), find the correct notice (which can also be tough as some hosts have the same or similar name) and then copy the information by hand out of the PDF.
Needless to say, the process is a mess and no one is happy about it. Not OSPs, not DMCA filers and not even the USCO. The system is full of problems including that it takes a long time to get information into the directory, the information is often out of date, it is expensive to update and it is difficult to access, especially for the visually impaired.
On this site alone, I’ve been talking about these issues since at least 2006 and even wrote a similar piece to this one in 2007.
However, where that piece was theoretical, we now have a real proposal from the USCO as it aims to finally get around to improving the way the directory is handled.
The Proposed Improvements
The crux of the proposal is for the system to move away from the current paper-based system and to an electronic one. This system would accept online registrations/updates, be searchable by anyone who wanted to access it and present the required information in cleartext format, meaning it can be easily copied.
The new system would also require that OSPs confirm and update their information every two years, helping to keep the database current, and also give an easier means to alter or delete information as it became outdated and/or unneeded.
Finally, the proposed changes would also allow OSPs to designate a third party to be responsible for maintaining the information. This could help further streamline the updating process for OSPs and help ensure updated information in the database.
The one thing the system won’t be, at least not initially, is cheaper. Though the uSCO has said it’s looking at how to price it, it indicated that it would not be looking meddle with prices at first.
Still, the recommendations, over all, appear to be solid. But with the request for comment phase just beginning, there’s the possibility that it could become even better.
My Thoughts on the Proposal
Most of the changes seem to be no-brainers. The system the USCO is describing is very much like the one that should have existed back in 1998 and the fact that it has taken 13 years to reach this point is awe-inspiring.
That being said, there are a few issues that either aren’t mentioned or are potentially thorny.
First, the USCO addresses it the issue of email, saying that it believes every DMCA contact should be required to post an email to the database and that it should be displayed in cleartext format in the system. While that makes sense from a usability standpoint, it makes less sense from a spam standpoint. Though there are good spam filters out there, one of the benefits of the current system is that OSPs can set up an account and largely remove all spam filters from it, ensuring ALL mail gets through.
This could likely be mitigated by limiting robot access to the database. That, in turn, can be done with a CAPTCHA system. Such systems can be made accessible to all (or nearly all) Web users and that, in turn, can help keep the database clean of spammers and prevent DMCA notices from being lost to spam filters while maintaining an overall high level of usability.
However, the more important issue is one of costs. One of the key reasons so few OSPs take advantage of this protection is the high cost, $105 for the initial registration plus $30 for each batch of ten additional names. With the new system, other than the initial cost of setting it up, there would be almost no maintenance costs associated with it (if it’s done well). Such a high fee is unjustifiable and unattainable to a smaller admins such as many forum admins and bloggers.
The USCO needs to step in here and make the system as inexpensive as possible. Otherwise, it doesn’t matter how great the electronic system is, it still won’t do any good as most OSPs will not be listed in it.
All in all, most of the proposed changes seem to be good ideas and as if the USCO is heading in the right direction. The biggest complaint I have is not with the proposal, but with how long it took for this issue to come to the forefront.
While I can understand the challenges in a government agency trying to bootstrap such a large project with no budget, it has been 13 years since the law took effect and 15 years since it was first proposed. Clearly there must have been a chance to resolve this problem sooner.
That being said, I’m still trying not to look a gift horse in the mouth and simply be grateful change is in the wind now. However, I am working on a public comment to submit between now and the end of November and I may be working with Terry Hart from CopyHype on it. If you have any thoughts or think you might want to participate, please let me know by either leaving a comment below or sending me an email.