• by Wendy Davis , Staff Writer @wendyndavis, November 29, 2011

When copyright enforcement outfit Righthaven began suing small publishers whose users had reposted news articles  in online forums, some publishers were surprised to learn that Righthaven would bring suit without first sending a takedown notice.

Those publishers -- and many others -- took for granted that they would be protected from liability for users' posts, as long as they removed infringing material upon request. In fact, however, the Digital Millennium Copyright Act's safe harbors only protect publishers who have jumped through certain administrative hoops. Among others, they must designate an agent to receive takedown notices and post that agent's contact information.

Now, the U.S. Copyright Office has proposed adding another clerical requirement. The Copyright Office has floated the idea that publishers must also renew their agent designations every two years.

That extra red tape could prove costly to many companies, warns the digital rights group Electronic Frontier Foundation and two law professors. “Under the proposed change, an otherwise-compliant service provider could be exposed to a massive -- and potentially business-ending -- damage award that could reach millions (or even billions) of dollars for forgetting to renew or maintain the agent designation on time,” the EFF and law professors Jason Schultz of UC Berkeley and Eric Goldman of Santa Clara University say this week in a letter to the Copyright Office. “A major forfeiture like this should result from significant culpable conduct, not mere inattention or a clerical error.”

The EFF and law professors bring up Righthaven in their letter, arguing that the company's lawsuit initiative demonstrates how administrative burdens in this area harm small publishers. “A recent litigation campaign over newspaper article repostings brought against small blogs, forums and nonprofit websites revealed that many smaller user-generated content sites had not satisfied the designation requirement,” they write.

“Increasing the formalities only increases the difficulties that small service providers face to qualify for and retain their safe harbor qualification. Given the number of small service providers who do not have a valid designation, the Copyright Office should make the designation requirements as simple and accessible as possible.”