As the debate over the future of the DMCA safe harbors heats up, the US Copyright Office is proposing a plan that could undermine those safe harbors much sooner.

One of the myriad conditions of DMCA safe harbor protection from copyright liability (protection on which thousands of intermediaries rely to survive) is to register an agent to receive DMCA takedown notices. Last month the Copyright Office announced that it would finally be implementing a new, much cheaper and streamlined electronic registration process. 

But there’s a catch.

In a footnote buried in a regulatory notice, the Copyright Office quietly suggested that in order to reduce fees while still paying for the new database, it will require registrants to renew those forms every three years. In other words, less money up front, but more red tape over the long term. And more risk—way more.

As we explained to the Copyright Office in comments filed today (working with Professors Eric Goldman and Rebecca Tushnet), Section 512 already imposes a host of conditions on service providers; any new condition is just one more burden. And failure to meet this new condition would have significant consequences: an otherwise-protected service provider could face greater exposer to a threat of massive—and potentially business-ending—damage award that could reach millions (or even billions) of dollars for forgetting to renew their agent designation. 

This is not an illusory risk. We have seen numerous well-meaning service providers denied a Section 512 safe harbor for failing to adhere precisely to the statutory requirements. Thousands of service providers have filed designations, and many large service providers know of the statutory conditions and have satisfied them. However, many smaller service providers have not registered agents. This is not because they do not want safe harbor protections or because the agent designation fee has been cost-prohibitive; it is because they either do not know of the conditions, find them too complicated or onerous to meet, or cannot afford legal counsel to advise them on satisfying them.

A range of public interest groups, industry associations and library associations joined the comments, and our message was clear: If the hidden consequence of lowering registrations fees is increasing the risk that an unsuspecting and well-intentioned provider will lose Section 512’s safe harbor protections, then the real cost of the new system is far too high.