Copyright Office Rule Changes—Maintaining DMCA Safe Harbor Immunity Requires New Registration

The Digital Millennium Copyright Act (DMCA) provides limited safe-harbor immunity from copyright infringement claims to certain types of websites and other online service providers. Earlier this year, we blogged regarding the need for such providers to now use an online portal to electronically designate an agent to receive take down requests and reported that all previous agent designations filed via the antiquated paper system will be ineffective as of December 31, 2017.

As we are quickly approaching the end of the year, now is the time for service providers, and those representing services providers, that host websites with user-generated content to make sure they are in compliance with the new regulations in order to maintain safe harbor immunity. Some important details of the new regulations are:

  • Separate agent designations must be filed for all corporate parents and/or affiliates that are separate legal entities
  • Service providers are required to list any and all alternate names under which they are doing business, including any names that the public would be likely to use in a search of the agent directory
  • A physical street address must be provided for the service provider – post office box numbers are no longer acceptable
  • An agent designation can now name any of an individual, a corporate department, or a third-party entity
  • Agent designations must be renewed every three years

The Copyright Office intends that the new system will be a much faster and more efficient way for copyright owners and the public to access designated agent information. Service providers’ submissions through the online registration system will automatically populate in the directory, and the public will be able to search either by service provider name or alternate name to obtain contact information for a designated agent.

For more information on registering (or re-registering) your designated DMCA agent, click here and here.

We Built This City on…False Advertising?

Fifty years ago, it was the “Summer of Love” in San Francisco, with Jefferson Airplane’s 1967 album “Surrealistic Pillow” providing the soundtrack. My how times have changed!

Earlier this week, the United States District Court for the Northern District of California came out with its initial decision in Chaquico v. Freiberg, which involves the latest squabble to arise out of the legacy of that classic San Francisco band. Plaintiff Chaquico was an original member of the band Jefferson Starship, which guitarist Paul Kantner formed in 1970 out of the remnants of the Jefferson Airplane. Chaquico sued the musicians who continue to tour and record as Jefferson Starship now, claiming that they breached a contract to cease using the name “Jefferson Starship,” and have given consumers the false impression that he somehow sponsors, endorses, or is otherwise still associated with the band by using his name and likeness to promote their concerts. While the band members seemingly admitted using his name and image, they claimed that they only used those in a historic context to document the history of the band. The band members claimed a First Amendment right to use his name and likeness that way, and argued that the Lanham Act cannot restrict their artistic freedom. Continue Reading

USPTO Switches Gears on Registration of Disparaging Marks, but Not on Scandalous Marks

On June 26, 2017, a week after the U.S. Supreme Court unanimously held that the “disparagement clause” in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), violates the Free Speech Clause of the First Amendment in Matal v. Tam, the U.S. Patent and Trademark Office (the “USPTO”) has updated (Examination Guide 1-17) its previous guidance, Examination Guide 01-16, to explain how it will examine applications following the Supreme Court’s decision in Tam. Continue Reading

Portland Band The Slants Singing a Happy Tune After the Supreme Court Unanimously Holds That the Disparagement Clause Violates the First Amendment

Yesterday, six months after hearing oral argument (and nearly six years after Simon Tam filed his trademark application for “THE SLANTS”), the U.S. Supreme Court unanimously affirmed the U.S. Court of Appeals for the Federal Circuit’s en banc decision in In re Tam, holding that the disparagement clause in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), violates the Free Speech Clause of the First Amendment.

The Supreme Court’s decision in the Matal v. Tam case (formerly called In re Tam and Lee v. Tam) concerns Simon Tam’s application for a federal trademark registration of his band’s name, “The Slants.” Tam is the founder of The Slants, a dance-rock band whose members are all Asian-American. The band members believe that by using the term “slants,” a derogatory term for persons of Asian descent, as the name of their group, they will help “reclaim” the term and “drain its denigrating force.” Continue Reading

What’s in Your Privacy Policy? New Oregon Law Requires Accuracy

On May 25, 2017, Oregon Governor Kate Brown signed into law H.B. 2090. This new law will make materially inaccurate claims related to the collection, use, disclosure, maintenance, and disposal of consumer data an unlawful trade practice subject to enforcement by the Attorney General. The law applies not only to claims made on websites (privacy policies come to mind), but also in consumer agreements (ISP and cloud hosting agreements come to mind).

Businesses typically review their standard contract forms on a regular basis during negotiations with customers and vendors. Those reviews provide an opportunity to identify claims related to data security that may no longer be accurate. But website privacy policies—rarely the subject of negotiation—are much more likely to be neglected for long periods of time. A best practice is to routinely review your contract forms and privacy policy to ensure they still accurately reflect how you collect, store, and use data. This new Oregon law provides extra incentive to keep those contracts and policies up to date!  Continue Reading