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Federal Register / Vol. 86, No. 37 / Friday, February 26, 2021 / Rules and Regulations to account for a situation where an error in a submission would not materially affect the adequacy of the information required to serve the purposes of the statute, but would affect the Offices ability to record the notice. For example, if a notice that complied with the statutory and regulatory requirements was timely served on the grantee, but the remitter subsequently failed to include the date of service in the statement of service submitted to the Office, the purposes of the statute would be served because the grantee would have adequate notice, yet the omission of the date of service would hamper the Offices ability to examine the notice for timeliness. Two commenters, NMPA
and RIAA, contended that the proposed language could be read to suggest that an error could be considered harmless so long as it does not affect the Offices ability to record the notice even if the error does materially affect the information required to serve the statutory purpose.36 The Office did not intend this interpretation of the proposed provision, and agrees that it is unnecessary to reference the statutory purpose in this provision in light of the newly added language specifying where a harmless error may occuri.e., in a notice, statement of service, or indexing information. Instead, reference to the statutory purpose remains part of the broader definition of what makes an error harmless. The final rule accordingly provides that an error is harmless if it does not materially affect the adequacy of the information required to serve the purposes of 17
U.S.C. 203, 304c, or 304d, whichever applies. 37
C. Manner of Service To modernize how service of notices may be effected, the Office proposed two additional permissible manners of service: 1 By reputable courier e.g., FedEx, UPS, DHL; and 2 by email where the grantee expressly consents.38
With respect to the first change, commenters unanimously supported allowing notices to be delivered to grantees by reputable couriers.39 The 36 See
NMPA Comments at 45; RIAA Comments
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at 6.
37 To reiterate, although the regulations provide that harmless errors shall not render a notice invalid, the Offices decision to record a notice is not a determination that any errors that the submission may contain are, in fact, harmless or that the notice itself is valid. See 37 CFR
201.10e1, f4.
38 85 FR 34155.
39 See Joint Comments of Authors Guild et al. at 6; Copyright Alliance Comments at 23; MPA at 7
9; Edell Howard at 5; NMPA at 6; Recording Academy at 2; RIAA at 67. While supporting expanded physical delivery options, the Copyright
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final rule accordingly adopts this proposal.40
With respect to email service, the proposed rule stated that service by email would be considered acceptable where the grantee or successor-in-title being served expressly consents to accept service in this manner. 41 Most commenters supported permitting email service, at least in principle, while raising concerns about how this option might function in practice and offering alternative proposals.42 A number of commenters questioned what express consent would entail and how it might be sought from and given by grantees.
Three commenters considered obtaining express consent to be too burdensome for the terminating party,43 and Authors Guild et al. recommended that the remitter instead be allowed to selfcertify that the notice was sent to an email address, such as an alias dedicated to receiving legal notices, found after a reasonable investigation. 44 Several commenters Alliance observed that delivery services that require a signature may not be appropriate because of the risk that a delivery may not be accepted. Copyright Alliance Comments at 23. Although this is a valid concern, the Office retains the language that a notice be delivered by courier service because the grantor is in the best position to rectify any delivery issue.
40 Some commenters proposed that the Office eliminate first class mail as an acceptable manner of service and instead allow only trackable mailing options such as priority or certified mail. See Copyright Alliance Comments at 23; MPA
Comments at 8; NMPA Comments at 6; RIAA
Comments at 67. While the Office acknowledges the benefits of using trackable services, it will retain first class mail as an acceptable manner of service because it remains an affordable, widely accessible option. Moreover, the Office is disinclined to eliminate first class mail as an option while it remains an acceptable method in federal courts to notify a defendant that an action has been commenced and request the defendant waive service of the summons. See Fed. R. Civ. P. 4d1.
The Office, however, encourages terminating parties to serve notices using trackable delivery options where feasible, agreeing with RIAAs observation that using these options would help avoid unnecessary disputes as to whether a grantee has received a termination notice and/or where the notice was sent. RIAA Comments at 7; see also MPA Comments at 7 n.11 The benefits of having a clear record of service including, for example, the avoidance of litigation over whether service was properly effected are enormous, potentially representing many thousands of dollars in legal fees..
41 85 FR 34155.
42 Joint Comments of Authors Guild et al. at 5;
Edell Howard Comments at 5; MPA Comments at 8; NMPA Comments at 67; NSAI Comments at 4;
Recording Academy Comments at 2.
43 Joint Comments of Authors Guild et al. at 5;
Edell Howard Comments at 5 commenting that requiring express consent for service by email is burdensome and onerous; NSAI Comments at 4
Requiring express consent by the grantee to accept service in one manner or another inappropriately shifts control to the grantee, who has no legal right to make the authors termination burdensome..
44 Joint Comments of Authors Guild et al. at 5.

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both in support of and opposed to email servicenoted that any consent must be provided from a person with authority to do so,45 and sufficiently close in time to when a notice is served.46 Others urged the Office to require safeguards to prevent notices from being sent to outdated emails or filtered out as spam or junk email.47 Commenters proposed various requirements to address these concerns, including that the Copyright Office be copied on notices served by email,48 that a terminating party obtain an acknowledgment of receipt from the grantee,49 and that a physical courtesy copy be sent to the grantee.50
Based on these comments, the Office has revised the proposed rule to further specify conditions by which the terminating party may obtain consent from the grantee, and also to establish two alternate, blanket options by which grantees may signal their acquiescence to email service from any potential terminating parties. With respect to the direct authorization option, the final rule requires the terminating party to 1
obtain express consent in writing from the grantee, successor-in-title, or agent thereof who is duly authorized to accept service on its behalf; 2 within thirty days before service of the notice is made; and 3 send the notice to an email address provided to the terminating party by the grantee or successor-in-title. The first added requirement responds to commenter concerns that consent be given by someone with the appropriate authority.
The Office has found a similar approach in a different context to be successful, namely permitting email service of notices of intention and statements of account under section 115 with the consent of the copyright owner or its authorized agent.51 Since this practice 45 See NMPA Comments at 6 The Office should consider how grantees should designate the persons authorized to consent to and receive email service on behalf of the grantee.; RIAA Comments at 8 Any consent to email service by a company must be clearly and affirmatively given by a duly authorized legal officer..
46 See MPA Comments at 8 n.12 noting that an email address that is valid at the time of the original grant is unlikely to remain valid several decades later, when notice of termination may be served;
RIAA Comments at 7 proposing consent be obtained close in time to the date of service e.g., no more than 30 days prior to service, but in advance of not simultaneous with actual service.
47 See Joint Comments of Authors Guild et al. at 5; Copyright Alliance Comments at 3; MPA
Comments at 8; NMPA Comments at 6; RIAA
Comments at 7.
48 Joint Comments of Authors Guild et al. at 5.
49 Edell Howard Comments at 5; NMPA
Comments at 67; RIAA Comments at 7.
50 RIAA Comments at 7.
51 See 37 CFR 201.18f6 outlining process by which list of works identified in a notice of
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