by Paul Alan Levy
David Kravets at Wired has published a story about one of the aspects of the recent spate of lawsuits filed by copyright troll Righthaven over the posting of snippets from articles in the Las Vegas Review-Journal. Those of us who have either handled or been approached to handle the defense of some of these cases have concluded that Righthaven has gone out of its way to sue the hosts of sites that allow posting of comments but only when those hosts have neglected to register with the copyright office the names and contact information about their agents for the receipt of notices of copyright infringement. Under the literal words of the DMCA, such registration with the copyright office (the procedure is explained here, with a link to the relevant form), is needed to guarantee application of the immunity that the DMCA provides against infringement claims to web hosts that scrupulously follow the notice of takedown and counternotice dance prescribed by the statute.
The article quotes Ben Sheffner as justifying the strict registration requirement on the theory that it protects copyright owners from the hardship of having "to go hunting around" for the agent. I am inclined to disagree with the analysis, because the Copyright Office's database is very large. Consequently, it may not be nearly so easy to access information about the DMCA agent for a given web site through that database than through a link featured on the site itself. Even if the web host makes it very easy to identify the DMCA agent by putting a link prominently on every page of its web site, DMCA immunity may well be denied if the agent is not also registered. Rightly or wrongly, the courts seem to be reading the statutory words, 17 U.S.C. § 512(c)(2), very strictly in this regard.
And justified or not, this is just one of those procedural rules that web hosts have to follow to protect themselves.
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