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Title: To amend title 17, United States Code, to update copyright law to address contemporary
business practices and technologies and to support the growth of digital technologies without
undermining incentives for creators, and for other purposes.

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Be it enacted by the Senate and House of Representatives of the United States of America inCongress assembled,

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SECTION 1. SHORT TITLE.

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This Act may be cited as the “Digital Copyright Act of 2021”.

SEC. 2. LIMITATIONS ON LIABILITY RELATING TO
MATERIAL ONLINE.
Section 512 of title 17, United States Code, is amended—(1) by striking subsections (a) through (d) and inserting the following:“(a) Transitory Digital Network Communications.—

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“(1) IN GENERAL.—A service provider shall not be liable for monetary relief, or, except
as provided in subsection (j), for injunctive or other equitable relief, for infringement of
copyright by reason of:

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“(A) the provider’s transmitting, routing, or providing connections for, material
through a system or network controlled or operated by or for the service provider, or byreason of the intermediate and transient storage of that material in the course of suchtransmitting, routing, or providing connections, if —2223“(i) the transmission of the material was initiated by or at the direction of aperson other than the service provider;

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“(ii) the transmission, routing, provision of connections, or storage is carriedout through an automatic technical process without selection of the material by
the service provider;

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28“(iii) the service provider does not select the recipients of the material except as
an automatic response to the request of another person;

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“(iv) no copy of the material made by the service provider in the course of suchintermediate or transient storage is maintained on the system or network in amanner ordinarily accessible to anyone other than anticipated recipients, and nosuch copy is maintained on the system or network in a manner ordinarily
accessible to such anticipated recipients for a longer period than is reasonably
necessary for the transmission, routing, or provision of connections; and3536“(v) the material is transmitted through the system or network without
modification of its content.

3738“(B) the intermediate and temporary storage of material on a system or network
controlled or operated by or for the service provider in a case in which—1
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12“(i) the material is made available online by a person other than the service
provider;345“(ii) the material is transmitted from the person described in subparagraph (i)through the system or network to a person other than the person described insubparagraph (i) at the direction of that other person; and

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“(iii) the storage is carried out through an automatic technical process for the
purpose of making the material available to users of the system or network who,
after the material is transmitted as described in subparagraph (ii), request accessto the material from the person described in subparagraph (iii).

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“(C) storage at the direction of a user of material that resides on a system or network
controlled or operated by or for the service provider[, or activities related to suchstorage].

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“(D) provider referring or linking users to an online location containing infringing
material or infringing activity, by using information location tools, including a directory,
index, reference, pointer, or hypertext link.

1617“(2) A service provider, as described in subsection (1) of this paragraph, will be eligible
for the limitation on liability if the service provider—“(A) does not have actual knowledge that the material or an activity so using thematerial is infringing;1819“(B) in the absence of actual knowledge described in subparagraph (A)—

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“(i) is not aware of facts or circumstances from which infringing activity islikely;2324“(ii) is not willfully blind with respect to the infringement, or does not induce
the infringement; and

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“(iii) for service providers eligible under subparagraphs (C) or (D), does notreceive a financial benefit directly attributable to the infringing activity, if theservice provider has the right and ability to control that activity;“(C) upon receiving a notification under subsection (b)—28“(i) acts expeditiously to—

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“(I) remove, or disable access to, the material that is claimed to be
infringing or the subject of infringing activity; and3233“(II) notify the user in accordance with standards established under rules
issued by the Copyright Office under subsection (g) of—“(aa) the removal or disabling, as applicable; and

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“(bb) the right of the user to file a counter notification undersubsection (g); and

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“(ii) takes certain steps to ensure that, absent a sworn statement from the user
(without regard to whether the user is the copyright owner) that, subject tosubsection (f), the user has a [subjective] good faith belief that the use is licensed
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or otherwise authorized by law, including that the use is permitted under section
107, the allegedly infringing materials stays down when:

345“(aa) a complete or near complete copy of a copyrighted work
already identified in a notification of claimed infringement or list ofunauthorized works as provided in [XX], or

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“(bb) any portion of a copyrighted work already identified in a
notification of claimed infringement or list of unauthorized works asprovided in [XX], if the service provider derives its commercial value
predominantly from short-form media,; and“(D) if, for service providers eligible under subparagraph (B), the service providers
meets these conditions:

1011“(i)—(iv) [incorporates the current language of subsection (b)(2)]12“(E) follow reasonableness best practices established by the Register of Copyrights,
which the Register, in consultation with the NTIA, shall update once every 5 years[beginning one year after date of enactment of this statute], that account for factors
including the type and size of the service provider and the scale of infringement that
occurs the service. Such best practices may include standards such as requiring a userthat uploads or publicly performs or displays content on or across the service to affirm
that the user holds the copyright to that content, has permission to upload or publicly
perform that content, or is otherwise authorized by law.

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“(b) Notification.—

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“(1) IN GENERAL.—To be effective under this subsection, a notification of claimed
infringement submitted to a service provider, whether submitted by an individual or
automated process, shall be a written communication provided to the designated agent of
the service provider, as described in subsection (c), that includes substantially the following:

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27“(A) A physical or electronic signature of a person authorized to act on behalf of theowner of an exclusive right that is allegedly infringed.

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“(B) Identification of the copyrighted work claimed to have been infringed, or, if
multiple copyrighted works at a single online site are covered by a single notification,a non-exhaustive representative list of those allegedly infringed works at that website.

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“(C)(i) Identification of the material that is claimed to be infringing or to be thesubject of infringing activity and that is to be removed or access to which is to bedisabled, and information reasonably sufficient to permit the service provider to locate
the material.

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“(ii) If the same copyrighted work is claimed to be infringed by multiple items ofmaterial or at multiple locations on a single website, the identification shall be
sufficient for the purposes of clause (i) if the notification identifies not less than 1 suchitem of material and not less than 1 such location, rather than specific web addresses
for each location.

4041“(D) Information reasonably sufficient to permit the service provider to contact thecomplaining party, such as an address, telephone number, or electronic mail address at
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which the complaining party may be contacted.

234“(E) A statement that the complaining party has a [subjective] good faith belief thatthe use of the material in the manner complained of is not authorized by the copyrightowner, its agent, or the law.

567“(F) A statement that the information in the notification is accurate, and underpenalty of perjury, that the complaining party is authorized to act on behalf of theowner of an exclusive right that is allegedly infringed.

8“(2) SUBSTANTIAL COMPLIANCE.—

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“(A) IN GENERAL.—Subject to subparagraph (B), a notification from a copyrightowner or from a person authorized to act on behalf of the copyright owner that fails tocomply substantially with the provisions of paragraph (1) shall not be considered undersubsection (a) in determining whether a service provider has actual knowledge or isaware of facts or circumstances from which infringing activity is apparent.

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“(B) PARTIAL COMPLIANCE.—In a case in which a notification under paragraph (1)that is provided to a service provider’s designated agent fails to comply substantiallywith all of the requirements of paragraph (1) but substantially complies with
subparagraphs (B), (C), and (D) of that paragraph, subparagraph (A) of this paragraphapplies only if the service provider promptly attempts to contact the person submitting
the notification or takes other reasonable actions to assist in the receipt of a notificationthat substantially complies with all the provisions of subparagraph (A).
“(C) PENALTY.—

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“(i) IN GENERAL.—A person that submits a notification under this paragraphwithout a [subjective] good faith belief that the use that is the subject of thenotification is unauthorized shall be subject to damages under subsection (f).

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“(ii) RULE OF CONSTRUCTION.—Nothing in clause (i) may be construed tosubject a person that submits a notification containing a mistake to a penalty
under subsection (f) if the notification is sent in good faith and is at least
minimally compliant with the requirements under subparagraph (A).

29“(3) WEB FORMS.—

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“(A) IN GENERAL.—Each service provider with a public-facing website shall, basedon criteria established under rules issued by the Register of Copyrights undersubparagraph (B), make available—

3334“(i) a web form for submitting to the service provider a notice under paragraph
(1);

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“(ii) a physical and electronic mail address for the submission of either aphysical or electronic notice sent under paragraph (1); and

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“(iii) a process by which, as a supplement to the materials made available underclauses (i) and (ii), a service provider may enter into a voluntary agreement with acopyright owner for an alternative noticing process under this subsection.
“(B) RULES.—

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1234“(i) IN GENERAL.—Not later than [X] after the date of enactment of the Digital
Copyright Act of 2021, the Register of Copyrights shall issue rules that, taking
into consideration the different types of service providers, establishes the format
for a form described in subparagraph (A).

56“(ii) UPDATES.—The Register of Copyrights shall update the rules issued undersubparagraph (B) once every 5 years.

7“(4) PROHIBITIONS.—With respect to a notification submitted under this subsection—

89“(A) the person submitting the notification may not include in the notification
information with respect to licensing or any demand of payment; and

10“(B) if the notification contains any item prohibited under subparagraph (A)—1112“(i) the notification shall be considered to be void and without effect undersubsection (a); and1314“(ii) the person submitting the notification shall be subject to damages undersubsection (f).

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“(5) PERSONALLY IDENTIFIABLE INFORMATION.—Not later than [X] after the date ofenactment of the Digital Copyright Act of 2021, the Register of Copyrights shall issue rulesthat provide which personally identifiable information [such as physical address] shall beprotected by a service provider under a fiduciary duty and redacted or withheld when aservice provider shares any information from a notification under this subsection.
“(c) Designated Agent.—“(1) IN GENERAL.—The limitations on liability established under subsection (a) apply to aservice provider only if the service provider has designated an agent to receive notifications
submitted under subsection (b), by making available through its service, including on its
website in a conspicuous location that is accessible to the public, and by providing to the
Copyright Office, substantially the following information:“(A) The name, address, phone number, and electronic mail address of the agent.

26“(B) Other contact information which the Register of Copyrights may deem
appropriate.

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“(2) DIRECTORY.—The Register of Copyrights shall maintain a current directory ofagents available to the public for inspection, including through the internet, and may require
payment of a fee by service providers to cover the costs of maintaining the directory.

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“(d) A service provider that does not satisfy the requirements of this section shall not enjoy thelimitation on liability or, where noncompliance is under subsection (g), or damages undersubection (f).

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“(f) Remedies.—“(1) MISREPRESENTATIONS AND BAD FAITH.—Any person who knowingly materiallyrepresents under this section that material or activity is infringing, or that material or
activity was removed or disabled by mistake or misidentification, or otherwise acts in bad
faith, shall be liable for any damages, including costs and attorneys’ fees, incurred by thealleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a5
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service provider, who is injured by such misrepresentation, as the result of the service
provider relying upon such misrepresentation in removing or disabling access to thematerial or activity claimed to be infringing, or in replacing the removed material or ceasing
to disable access to it.

56“(2) REPEATEDLY SENDING FALSE NOTIFICATIONS.—If a person repeatedly and falsely
submits notifications under subsection (b) or counter notifications under subsection (g)(3)—789“(A) that person shall be placed on a list maintained by the Register of Copyrights,
which the Register shall establish through rules that the Register shall update once
every 5 years; and

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“(B) a service provider that receives a notification or counter notification sent by aperson that is on the list described in subparagraph (A) may elect not to respond to thenotification or counter notification without facing any adverse consequence under thissection.

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“(3) RESPONDING TO A COUNTER NOTICE.—If a service provider disables access to, or
removes, material or activity under subsection (a) without satisfying the requirements undersubsection (g), the person against which the service provider takes that action may bring acivil action against the service provider, for monetary damages, including attorneys’ fees
and costs, or injunctive relief, in an appropriate district court of the United States or underparagraph (4).

20“(4) COPYRIGHT CLAIMS BOARD.—

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“(A) MISREPRESENTATION OR BAD FAITH.—Any claim for misrepresentation or badfaith under this subsection may be brought, upon voluntary agreement of both parties,
before the [Copyright Claims Board] on an expedited basis pursuant to rules issued by
the Register of Copyrights, which the Register shall update once every 5 years.

25(3) in subsection (g)—

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(A) in paragraph (1), by inserting “if the service provider retains the allegedly
infringing content for 30 days and replaces the removed material or ceases disabling
access to it in accordance with the requirements of this subsection” after “determined
to be infringing”;

30(B) in paragraph (2)—3132(i) in the matter preceding subparagraph (A), by striking “subsection (c)(1)(C)”and inserting “subsection (b)”;

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(ii) in subparagraph (A), by inserting “and provides, as established by theRegister of Copyright, by rule, counter notice forms to the subscriber, which shall
include information regarding the fair use doctrine” after “to the material”;

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(I) by striking “subsection (c)(1)(C)” and inserting “subsection (b)”; and

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(II) by striking “in 10 business days” and inserting “in 5 business days,
unless the designated agent of the service provider first receives notice fromthe person that submitted the notification under subsection (b) that the6
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alleged infringement exceeds the statutory maximum 1501 of this title[[copyright small claims]] and that such person is, in good faith, consideringfiling an action seeking a court order to restrain the subscriber from engaging
in infringing activity”;

5(iv) in subparagraph (C)—6

(I) by striking “10” and inserting “5”;7(II) by striking “14” and inserting “30”; and8(III) by striking “subsection (c)(1)(C)” and inserting “subsection (b)”;9(C) in paragraph (3)—

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(i) in the matter preceding subparagraph (A), by inserting “, or submitted bymeans of a web form (the format for which shall be established by the Register of
Copyrights, by rule),” after “designated agent”;

1314(ii) in subparagraph (C), by inserting “because the material is licensed to theuser or otherwise authorized by law” after “mistake”;

15(iii) in subparagraph (D)—(I) by inserting “the Copyright Claims Board,” after “jurisdiction of”; and16(II) by inserting “if damages exceed $30,000 under subsection (e) ofsection 1504” after “is located”; and

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(iv) by adding at the end the following:

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“(E) An explanation of the alleged mistake contained in the original notification anda description of any license under which the subscriber is operating or a description ofany [subjective good faith] claim that the subscriber could make under section 107
with respect to the material.”;24
25(D) in paragraph (4), by striking “subsection (c)(1)(C)” and inserting “subsection(b)”; and

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(E) by adding at the end the following:“(5) PERSONALLY IDENTIFIABLE INFORMATION.— Not later than [X] after the date ofenactment of the Digital Copyright Act of 2021, the Register of Copyrights shall issue rulesthat provide which personally identifiable information [such as physical address] shall beprotected by a service provider under a fiduciary duty and redacted or withheld when aservice provider shares any information from a counter notification under this subsection“(6) CHALLENGES TO COUNTER NOTICE.—

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“(A) IN GENERAL.—A notice sender to which a counter notification is provided
under this subsection may send the service provider a challenge claiming that thecounter notification is facially invalid.

3637“(B) SUBJECT TO DAMAGES.—A challenge brought under subparagraph (A) that is
not brought in good faith shall be subject to the damages under [subsection (f)].”;

38(4) in subsection (h), by striking all references to “notification described in subsection
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1(c)(3)(A)” and replacing with the following:“a notice containing substantially the same information as a notification submitted
under subsection (b);”;2
34(5) in subsection (i)—5(A) in paragraph (1)—678(i) in subparagraph (A), by striking “repeat infringers” and inserting “persons
that, on multiple occasions, were the subject of notifications under subsection (b)that were not successfully challenged”; and

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(ii) in subparagraph (B), by striking “accommodates and does not interferewith” and inserting “adopts (or, where utilized by copyright owners, does notinterfere with)”;12(B) by redesignating paragraph (2) as paragraph (3);13(C) by inserting after paragraph (1) the following:

14“(2) RULEMAKINGS.—

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“(i) in consultation with the NTIA, develop and maintain a model policy withrespect to persons described in paragraph (1)(A) that shall determine minimum
requirements for service providers; and

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“(ii) in consultation with the National Institute of Standards and Technology,
identify and adopt standard technical measures and clarify that, when adopted,
shall be made available to copyright owners and service providers on fair,reasonable, and non-discriminatory terms.

2425“(B) UPDATES.—The Register of Copyrights shall update the material developedand established under subparagraph (A) once every 5 years.”; and26(D) in paragraph (3), as so redesignated—(i) inserting “or service providers to manage copyrighted works on the service”
after “or protect copyrighted works”;

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(ii) in subparagraph (B)—30

(I) by inserting “, or can be made available,” after “are available”; and31(II) by striking “and” at the end;

32(iii) in subparagraph (C)—33

(I) by inserting “and disproportionate” after “substantial”; and34(II) by striking the period at the end and inserting “; and”; and35(iv) by adding at the end the following:“(D) vary across types and sizes of service providers.”;

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123(6) in subsection (m)(1), by inserting “or if that monitoring would be reasonable inconsideration of the rules issued under subsection (a)(2)” after “subsection (i)”; and(7) by adding at the end the following:

456“(o) Review.—The Attorney General, in consultation with the Register of Copyrights, may
review a voluntary agreement for addressing copyright infringement online that raises antitrust
concerns or constrains uses that are otherwise authorized under this title.”.

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8SEC. 3. LIMITATION ON REMEDIES IN CASESINVOLVING ORPHAN WORKS.

910(a) Amendment.—Chapter 5 of title 17, United States Code, is amended by adding at the end
the following:

11“514. Limitation on remedies in cases involving orphan works

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“(a) Definitions.—In this section:“(1) NOTICE OF CLAIM OF INFRINGEMENT.—The term ‘notice of claim of infringement’means, with respect to a claim of copyright infringement, a written notice sent from theowner of the infringed copyright, or a person acting on the owner’s behalf, to the infringer,
or a person acting on the infringer’s behalf, that includes at a minimum—“(A) the name of the owner of the infringed copyright;

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“(B) the title of the infringed work, any alternative titles of the infringed work
known to the owner of the infringed copyright, or if the work has no title, a description
in detail sufficient to identify that work;

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22“(C) an address and telephone number at which the owner of the infringed copyrightor a person acting on behalf of the owner may be contacted; and2324“(D) information reasonably sufficient to permit the infringer to locate theinfringer’s material in which the infringed work resides.

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“(2) OWNER OF THE INFRINGED COPYRIGHT.—The ‘owner of the infringed copyright’ isthe owner of any particular exclusive right under section 106 that is applicable to theinfringement, or any person or entity with the authority to grant or license such right.

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“(3) REASONABLE COMPENSATION.—The term ‘reasonable compensation’ means, withrespect to a claim of infringement, the amount on which a willing buyer and willing seller inthe positions of the infringer and the owner of the infringed copyright would have agreed
with respect to the infringing use of the work immediately before the infringement began.

32“(b) Conditions for Eligibility.—

33“(1) CONDITIONS.—“(A) IN GENERAL.—Notwithstanding sections 502 through 506, and subject to
subparagraph (B), in an action brought under this title for infringement of copyright ina work, the remedies for infringement shall be limited in accordance with subsection(c) if the infringer—

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“(i) proves by a preponderance of the evidence that before the infringement
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began, the infringer, a person acting on behalf of the infringer, or any person
jointly and severally liable with the infringer for the infringement—

34“(I) performed and documented a qualifying search, in good faith, tolocate and identify the owner of the infringed copyright; and“(II) was unable to locate and identify an owner of the infringed copyright;

567“(ii) prior to using the work, filed with the Register of Copyrights a Notice of
Use under paragraph (3);

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“(iii) provided attribution, in a manner that is reasonable under thecircumstances, to the legal owner of the infringed copyright, if such legal owner
was known with a reasonable degree of certainty, based on information obtainedin performing the qualifying search;

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“(iv) included with the public distribution, display, or performance of theinfringing work a symbol or other notice of the use of the infringing work, theform and manner of which shall be prescribed by the Register of Copyrights;

1516“(v) asserts in the initial pleading to the civil action eligibility for such
limitations; and

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“(vi) at the time of making the initial discovery disclosures required under rule
26 of the Federal Rules of Civil Procedure, states with particularity the basis for
eligibility for the limitations, including a detailed description and documentationof the search undertaken in accordance with paragraph (2)(A) and produces
documentation of the search.

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“(B) EXCEPTION.—Subparagraph (A) shall not apply if, after receiving notice of theclaim for infringement and having an opportunity to conduct an expeditious good faith
investigation of the claim, the infringer—2526“(i) fails to negotiate reasonable compensation in good faith with the owner ofthe infringed copyright; or

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“(ii) fails to render payment of reasonable compensation in a reasonably timely
manner after reaching an agreement with the owner of the infringed copyright or
under an order described in subsection (c)(1)(A).

30“(2) REQUIREMENTS FOR SEARCHES.—“(A) REQUIREMENTS FOR QUALIFYING SEARCHES.—

31“(i) IN GENERAL.—A search qualifies under paragraph (1)(A)(i)(I) if theinfringer, a person acting on behalf of the infringer, or any person jointly andseverally liable with the infringer for the infringement, undertakes a diligent effort
that is reasonable under the circumstances to locate the owner of the infringed
copyright prior to, and at a time reasonably proximate to, the infringement.

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“(ii) DILIGENT EFFORT.—For purposes of clause (i), a diligent effort—

37“(I) requires, at a minimum—

38“(aa) a search of the records of the Copyright Office that are available
to the public through the Internet and relevant to identifying and
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locating copyright owners, provided there is sufficient identifying
information on which to construct a search;

345“(bb) a search of reasonably available sources of copyrightauthorship and ownership information and, where appropriate, licensor
information;

67“(cc) use of appropriate technology tools, printed publications, andwhere reasonable, internal or external expert assistance; and89“(dd) use of appropriate databases, including databases that areavailable to the public through the Internet; and

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“(II) includes any actions that are reasonable and appropriate under thefacts relevant to the search, including actions based on facts known at thestart of the search and facts uncovered during the search, and including areview, as appropriate, of Copyright Office records not available to the
public through the Internet that are reasonably likely to be useful in
identifying and locating the copyright owner.

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“(iii) CONSIDERATION OF RECOMMENDED PRACTICES.—A qualifying searchunder this subsection shall ordinarily be based on the applicable statement ofRecommended Practices made available by the Copyright Office.

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“(iv) LACK OF IDENTIFYING OF INFORMATION.—Each of the following
circumstances shall not be considered to be sufficient to meet the conditions underparagraph (1)(A)(i)(I):

2223“(I) A particular copy or phonorecord lacks identifying information
pertaining to the owner of the infringed copyright.

2425“(II) An owner of the infringed copyright fails to respond to any inquiry orother communication about the work.

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“(v) USE OF RESOURCES FOR CHARGE.—A qualifying search under paragraph(1)(A)(i)(I) may require use of resources for which a charge or subscription is
imposed to the extent reasonable under the circumstances.

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“(vi) EFFECT OF FOREIGN SEARCHES.—If a search is found to be qualifying
under the laws of a foreign jurisdiction, and this search is relied upon in part by a
U.S. infringer, a court may take this fact into account when determining whether
the United States search is qualifying, provided the foreign jurisdiction accepts
qualifying United States searches in a reciprocal manner.
“(B) INFORMATION TO GUIDE SEARCHES; RECOMMENDED PRACTICES.—

34“(i) STATEMENTS OF RECOMMENDED PRACTICES.—

35“(I) IN GENERAL.—The Register of Copyrights shall maintain and makeavailable to the public and, from time to time, update not less than 1
statement of Recommended Practices for each category, or, in the discretionof the Register, subcategory of work under section 102(a), for conducting
and documenting a search under this subsection.

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123“(II) CONTENTS.— A statement under subclause (I) shall ordinarily
include reference to materials, resources, databases, and technology toolsthat are relevant to a search.

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6“(III) ADDITIONAL STATEMENTS.—The Register of Copyrights may
maintain and make available more than 1 statement of Recommended
Practices for each category or subcategory, as appropriate.

789“(ii) CONSIDERATION OF RELEVANT MATERIALS.—In maintaining and making
available and, from time to time, updating the Recommended Practices underclause (i), the Register of Copyrights—

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“(I) shall, in the discretion of the Register, consider materials, resources,
databases, technology tools, and practices that are reasonable and relevant to
the qualifying search; and1314“(II) may consider any comments submitted to the Copyright Office by
any interested entities.

15“(3) NOTICE OF USE ARCHIVE.—

1617“(A) IN GENERAL.—The Register of Copyrights shall create and maintain an archive
to retain the Notices of Use filed under paragraph (1)(A)(ii).

1819“(B) CONTENTS.—Each Notice of Use filed under paragraph (1)(A)(ii) shall
include—20“(i) the type of work being used, as described in section 102(a);21“(ii) a description of the work;

22“(iii) a summary of the search conducted under paragraph (1)(A)(i)(I);

23
24
25

“(iv) the owner, author, recognized title, and other available identifying
element of the work to the extent the infringer knows such information with areasonable degree of certainty;

26
27
28
29

“(v) the source of the work, including the library or archive in which the work
was found, the publication in which the work originally appeared, the website
from which the work was taken, (including the url and the date the site wasaccessed);3031“(vi) a certification that the infringer performed a qualifying search in goodfaith under this subsection to locate the owner of the infringed copyright; and“(vii) the name of the infringer and how the work will be used.

32“(C) AVAILABILITY.—A Notice of Use filed under paragraph (1)(A)(ii) and retained
under the control of the Copyright Office shall be made available to individuals or the
public only under the conditions specified by regulations of the Copyright Office.

33
34
35
36
37
38

“(4) PENALTY FOR FAILURE TO COMPLY.—If an infringer fails to comply with any
requirement under this subsection, the infringer shall not be eligible for a limitation on
remedies under this section.

39“(c) Limitations on Remedies.—The limitations on remedies in an action for infringement of a12
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copyright to which this section applies are the following:“(1) MONETARY RELIEF.—

3
4
5
6

“(A) IN GENERAL.—Subject to subparagraph (B), a court may not award monetary
relief (including actual damages, statutory damages, costs, and attorney’s fees), exceptthat the court may require the infringer to pay reasonable compensation to the owner ofthe exclusive right under the infringed copyright for the use of the infringed work.

789“(B) LIMITATIONS.—An order requiring the infringer to pay reasonable
compensation for the use of the infringed work may not be made under subparagraph(A) if—

10
11
12
13

“(i) the infringer is a nonprofit educational institution, museum, library,archives, or a public broadcasting entity (as such term is defined in section
118(f)), or any of such entities’ employees acting within the scope of theiremployment; and14“(ii) the infringer proves by a preponderance of the evidence that—

1516“(I) the infringement was performed without any purpose of direct orindirect commercial advantage;

1718“(II) the infringement was primarily educational, religious, or charitable innature; and

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20
21

“(III) after receiving a notice of claim of infringement, and having an
opportunity to conduct an expeditious good faith investigation of the claim,
the infringer promptly ceased the infringement.
“(C) EFFECT OF REGISTRATION ON REASONABLE COMPENSATION.— If a work is
registered, the court may, in determining reasonable compensation under thisparagraph, take into account the value, if any, added to the work by reason of suchregistration.

22
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24
25
26

“(2) INJUNCTIVE RELIEF.—“(A) IN GENERAL.—Except as provided in subparagraph (B)—

27
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“(i) the court may impose injunctive relief to prevent or restrain any
infringement alleged in the civil action; and

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31
32
33

“(ii) in the case of an infringer that has met the requirements of subsection (b),the relief described in clause (i) shall, to the extent practicable and subject toapplicable law, account for any harm that the relief would cause the infringer due
to its reliance on subsection (b).
“(B) EXCEPTION.—

34“(i) IN GENERAL.—In the case of an infringer, which is not a case described inclause (ii), that has prepared or commenced preparation of a new work ofauthorship that recasts, transforms, adapts, or integrates the infringed work with asignificant amount of original expression, any injunctive relief ordered by the
court may not restrain the infringer’s continued preparation or use of that newwork, if—

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38
39
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123“(I) the infringer pays reasonable compensation in a reasonably timely
manner after the amount of such compensation has been agreed upon withthe owner of the infringed copyright or determined by the court; and456“(II) the court requires that the infringer provide attribution, in a mannerthat is reasonable under the circumstances, to the legal owner of theinfringed copyright, if requested by such owner.
“(ii) CERTAIN CASES DESCRIBED.—For purposes of paragraph (1), a casedescribed in this subparagraph is a case in which the owner of the infringed
work—

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9
10

“(I) is also an author of the work;

11“(II) requests the injunctive relief described in subparagraph (A); and

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14

“(III) alleges, and the court so finds, that the infringer’s continued andintentional preparation or use of the new work would be prejudicial to theowner’s honor or reputation, and this harm is not otherwise compensable.
“(C) LIMITATIONS.—The limitations on injunctive relief under subparagraphs (A)and (B) may not be available to an infringer, or a representative of the infringer acting
in an official capacity, if the infringer asserts that neither the infringer nor any
representative of the infringer acting in an official capacity is subject to suit in the
courts of the United States for an award of damages for the infringement, unless thecourt finds that the infringer—

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“(i) has complied with the requirements of subsection (b); and

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“(ii) pays reasonable compensation to the owner of the exclusive right under
the infringed copyright in a reasonably timely manner after the amount of
reasonable compensation has been agreed upon with the owner or determined by
the court.

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27
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“(D) RULE OF CONSTRUCTION.—Nothing in subparagraph (C) shall be construed toauthorize or require, and no action taken under such subparagraph shall be deemed toconstitute, either an award of damages by the court against the infringer or an
authorization to sue a State.

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31
32
33

“(E) RIGHTS AND PRIVILEGES NOT WAIVED.—No action taken by an infringer undersubparagraph (C) shall be considered to waive any right or privilege that, as a matter oflaw, protects the infringer from being subject to suit in the courts of the United States
for an award of damages.

34“(d) Preservation of Other Rights, Limitations, and Defenses.—3536“(1) IN GENERAL.—This section shall not affect any right, or any limitation or defense tocopyright infringement, including fair use, under this title.

37
38
39

“(2) EFFECT ON OTHER PROVISIONS.—In the case of another provision of this title thatprovides for a statutory license that would permit the use contemplated by the infringer,
such other provision shall apply.

40“(e) Copyright for Derivative Works and Compilations.—Notwithstanding section 103(a), an
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infringer that qualifies for the limitation on remedies afforded by this section shall not be denied
copyright protection in a compilation or derivative work on the basis that such compilation orderivative work employs preexisting material that has been used unlawfully under this section.

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6
7

“(f) Exclusion for Fixations in or on Useful Articles.—The limitations on remedies under thissection shall not be available to an infringer for infringements resulting from fixation of apictorial, graphic, or sculptural work in or on a useful article that is offered for sale or othercommercial distribution to the public.”.

89(b) Table of Sections Amendment.—The table of sections for chapter 5 of title 17, UnitedStates Code, is amended by inserting after the item relating to section 513 the following:

10“514. Limitation on remedies in cases involving orphan works.”.

1112(c) Effective Date.—The amendments made by this section shall take effect on [January 1,
20__].

13

SEC. 4. APPOINTMENT OF REGISTER OF COPYRIGHTS;
COPYRIGHT OFFICE RELOCATION.

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15
16
17

(a) In General.—Section 701 of title 17, United States Code, is amended—(1) by striking subsection (a) and inserting the following:“(a) Establishment of Copyright Office.—1819“(1) IN GENERAL.—The Copyright Office is established as an agency within the
Department of Commerce.

2021“(2) REGISTER OF COPYRIGHTS.—The Copyright Office shall be headed by the Register of
Copyrights, who—2223“(A) shall be appointed by the President, by and with the advice and consent of the
Senate, for a 5-year term; and2425“(B) shall be responsible for all administrative functions and duties under this title,
except as otherwise specified.

26
27
28

“(3) SUBORDINATE OFFICERS AND EMPLOYEES.—Each subordinate officer or employee of
the Copyright Office shall be appointed by, and act under the general direction andsupervision of, the Register of Copyrights.”; and

29
30
31
32
33
34
35
36
37

(2) by striking subsection (d) and inserting the following:“(d) Relation to Deposit Requirements.—Nothing in paragraph (a) of this section shall be
construed to affect—“(1) the deposit requirements under section 407 or 408;(b) Conforming Amendments.—[conforming amendments throughout title 17, including
section 701, will need to be added.](c) Effective Date; Effect on Personnel.—[(1) EFFECTIVE DATE.—The amendments made by this section shall take effect beginningwith the first appointment of an individual to serve as the Register of Copyrights on or after
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the date of enactment of this Act.

234(2) EFFECT ON PERSONNEL.—No individual who was employed by the Copyright Officeon the day before the date of enactment of this Act shall be separated or reduced in grade orcompensation because of the amendments made by this section.

5

SEC. 5. MODERNIZING CIRCUMVENTION EXEMPTIONS.

67(a) In General.—Section 1201 of title 17, United States Code, is amended—(1) in subsection (a)(1)—8(A) in subparagraph (B)—(i) by striking “shall not apply to persons” and inserting the following: “shallnot apply to—910“(i) persons”; and1112(ii) by striking the period at the end and inserting the following: “; or1314“(ii) third-party assistance at the direction of an intended user, subject to
subparagraph (C).”;15(B) in subparagraph (C), in the matter preceding clause (i)—

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(i) by striking “shall make the determination in a rulemaking proceeding for
purposes of subparagraph (B)” and inserting “shall make a determination in arulemaking proceeding for purposes of subparagraph (B)(i)”;

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21
22

(ii) by striking “works.” and inserting the following: “works, and shall make adetermination in a rulemaking proceeding for purposes of subparagraph (B)(ii) of
whether third-party assistance at the direction of an intended user should be
exempt from the prohibition contained in subparagraph (A)”; and2324(iii) [by striking “In conducting such rulemaking” and inserting “In conducting
the rulemaking for purposes of subparagraph (B)(i)”;25(C) in subparagraph (D)—(i) by inserting “(i)” after “(D)”;26(ii) in clause (i), as so designated, by inserting “for purposes of subparagraph(B)(i)” after “subparagraph (C)”; and

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29
30
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34

(iii) by adding at the end the following:“(ii) If the Register of Copyrights determines, pursuant to the rulemaking conductedunder subparagraph (C) for purposes of subparagraph (B)(ii), that third-party assistance atthe direction of an intended user should be exempt from the prohibition contained insubparagraph (A), the Register shall publish that determination and that prohibition shallnot apply to such third-party assistance for the ensuing 3-year period.”;

35(D) in subparagraph (E), by striking “exception” and inserting “exceptions”; and36(E) by adding at the end the following:

37“(F) Notwithstanding subparagraph (B), (C), or (D)—16
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the succeeding 3-year period without additional documentation unless a party opposing
renewal files a good faith statement in opposition.

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5

“(G)(i) Notwithstanding subparagraph (B), (C), or (D), the Register of Copyrights may
make permanent a temporary exception that has been—“(I) adopted under subparagraph (C) for a 3-year period; and678“(II) renewed for the successive 3-year period under subparagraph (F) without
opposition.

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11

“(iii) If the Register of Copyrights receives a good faith statement in opposition to atemporary exception described in clause (i), the Register shall provide notice to the publicthat the exception has reentered the rulemaking proceeding described in subsection (a)(1);12(2) in subsection (a)(2)—13(A) inserting

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“(D) The Register of Copyrights may provide by regulation that this paragraph shallnot apply to the manufacture, importation, offering to the public, provision, or othertrafficking of a technology, product, service, device, component, or part thereof to theintended user of an exemption under subsection (1).

18

(3) in subsection (b)—19(A) by redesignating paragraph (2) as paragraph (3); and20(B) by inserting in paragraph (1) the following:

21
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23
24
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“(D) The Register of Copyrights may provide by regulation that paragraph (1) shall not
apply to the manufacture, importation, offering to the public, provision, or other trafficking
of a technology, product, service, device, component, or part thereof to the intended user ofan exemption under subsection (1)”;(3) in subsection (g)—26(A) in paragraph (2)—27(i) in subparagraph (B), by adding “and” at the end;

28(ii) by striking subparagraph (C); and29(iii) by redesignating subparagraph (D) as subparagraph (C);30

(B) in paragraph (3)—31(i) by striking subparagraph (A) and inserting the following:

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33
34

“(A) whether the information derived from the encryption research wasdisseminated, to the copyright owner, a research body, or the public, in a manner that
does not facilitate infringement and can improve encryption tools; and”;

35(ii) in subparagraph (B), by striking “; and” and inserting a period; and36(iii) by striking subparagraph (C);37(4) in subsection (j)—17
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12(A) by striking “Security Testing” and replacing with “Good-Faith Security
Research”

3(B) by striking paragraphs (1), (2), and (3) and inserting the following:

456“(1) DEFINITION.—For purposes of this section, the term ‘good-faith security research’means accessing a computer program for purposes of good-faith testing, investigation, or
correction of a security flaw or vulnerability, if—

78“(A) the activity is carried out in an environment designed to avoid harm toindividuals and the public; and“(B) the information derived from the activity—

9“(i) is used primarily to promote the security or safety of—

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“(I) the class of devices or machines on which the computer program
operates; or1314“(II) the individuals or entities that use the devices or machines describedin subclause (I); and“(ii) is not used or maintained in a manner that facilitates copyright
infringement.

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“(2) PERMISSIBLE ACTS OF GOOD-FAITH SECURITY RESEARCH—Notwithstanding theprovisions of subsection (a)(1)(A), it is not a violation of that subsection if thecircumvention of a computer program—“(A) is undertaken on—

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“(i) a lawfully acquired device or machine on which the computer program
operates; or

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“(ii) a computer, computer system, or computer network on which thecomputer program operates with the authorization of the owner or operator of thecomputer, computer system, or computer network;

26“(B) is undertaken solely for the purpose of good-faith security research; and27“(C) does not violate any applicable law, including section 1030 of title 18.

2829“(3) FACTORS IN DETERMINING EXEMPTION.—In determining whether a person qualifies
for the exemption under paragraph (2), the factors to be considered shall include—

30
31“(A) whether the person used the information derived from the security testing
primarily to promote the security or safety of—“(i) the class of devices or machines on which the computer program operates;

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33

or

34
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“(ii) those individuals or entities that use the devices or machines described inclause (i); and3637“(B) whether the person used the information derived from the security testing forthe purpose of facilitating copyright infringement.”; and38(B) in paragraph (4)—18
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and

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2

(ii) by striking “section (a)(2)” and inserting “subsection (a)(2)”;3(iii) by striking “security testing” and inserting “good-faith security research”;
and

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(5) by adding at the end the following:

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“(l) Assistive Technologies Exemption.—Notwithstanding the provisions of subsections (a)and (b), it is not a violation of this section for a person to circumvent a technological protection
measure or to provide assistance or a tool at the direction of the user for an activity that enables ablind or visually impaired individual to utilize assistive technologies, to the extent that theactivity does not constitute infringement under this title.

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“(m) Unlocking Mobile Devices.— Notwithstanding the provisions of subsections (a) and (b),it is not a violation of this section for a person to circumvent a technological protection measureor to provide assistance or a tool at the direction of the user for an activity that unlocks a mobile
device, to the extent that the activity does not constitute infringement under this title.

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“(n) Technical Assistance for Computer Programs Exemption.— Notwithstanding theprovisions of subsections (a) and (b), it is not a violation of this section for a person to
circumvent a technological protection measure or to provide assistance or a tool at the directionof the user for an activity that allows the diagnosis, repair, or maintenance of a computer
program, including to circumvent obsolete access controls, to the extent that the activity does notconstitute infringement under this title.”.

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24

(b) Applicability.—The amendments to section 1201(a)(1) of title 17, United States Code,made by subsection (a)(1) shall apply with respect to the first rulemaking under subparagraph(C) of such section 1201(a)(1) that begins on or after the date of enactment of this Act.

25
26

SEC. 6. PROMOTING ATTRIBUTION THROUGHCOPYRIGHT MANAGEMENT INFORMATION.

2728(a) Integrity of Copyright Management Information.—Section 1202 of title 17, United States
Code, is amended—29(1) in subsection (a)—3031(A) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B),respectively, and adjusting the margins accordingly;(B) by striking “No person” and inserting the following:32
33“(1) IN GENERAL.—No person”; and34(C) by adding at the end the following:3536“(2) MENS REA REQUIREMENT.—For purposes of paragraph (1), the requirement that anaction be taken with intent to induce, enable, facilitate, or conceal infringement—

3738“(A) shall be satisfied by knowledge that the action is being taken and doing sowould encourage or facilitate infringement; and19
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4(A) by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and (C),respectively, and adjusting the margins accordingly;(B) by striking “No person” and inserting the following:

56“(1) IN GENERAL.—No person”;

78(C) by moving the undesignated matter following subparagraph (C),as so
redesignated, 2 ems to the right; and9(D) by adding at the end the following:

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“(2) MENS REA REQUIREMENT.—For purposes of paragraph (1), the requirement that anaction be taken with knowledge, or reasonable grounds to know, that the action will induce,
enable, facilitate, or conceal infringement—

1314“(A) shall be satisfied by knowledge that the action is being taken and doing sowould encourage or facilitate infringement; and“(B) does not require any pattern of conduct or modus operandi.”; and

1516(3) in subsection (c)—1718(A) by redesignating paragraphs (1) through (8) as subparagraphs (A) through (H),respectively, and adjusting the margins accordingly;(B) by striking “As used in this section” and inserting the following:

1920“(1) IN GENERAL.—As used in this section”; and21(C) by adding at the end the following:

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25
26
27

“(2) RULE OF CONSTRUCTION.—For purposes of paragraph (1), the term ‘including indigital form’ shall not be construed to exclude information conveyed in forms other thandigital.”.
(b) Requirement for Non-authors to Affix Copyright Management Information.—(1) IN GENERAL.—Chapter 12 of title 17, United States Code, is amended by inserting
after section 1202 the following:

29“1202A. Requirement for non-authors to affix copyright
management information3031“(a) Definition.—In this section, the term ‘copyright management information’ has themeaning given the term in section 1202.

32
33
34

“(b) Requirement to Affix Information.—The copyright owner of a work who is not the authorof the work shall affix copyright management information to any digital copy of the work
reproduced or distributed by the copyright owner.

3536“(c) Right of Action for Authors.—If a person removes copyright information from, or alters
copyright management information conveyed in connection with, a digital or analog copy of a28

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copyrighted work with the intent to conceal the attribution information of the author of the work,
the author may bring a civil action against the person in an appropriation district court of theUnited States, and may pursue remedies under section 1203 of this title”.

456(2) TECHNICAL AND CONFORMING AMENDMENT.—The table of sections for chapter 12 of
title 17, United States Code, is amended by inserting after the item relating to section 1202
the following:

7“1202A. Requirement for non-authors to affix copyright management information.”.

8

SEC. 7. COPYRIGHT ALTERNATIVES IN SMALL-CLAIMSENFORCEMENT ACT.

9
10
11
12

(a) Copyright Small Claims.—(1) IN GENERAL.—Title 17, United States Code, is amended by adding at the end thefollowing:

13“CHAPTER 15—COPYRIGHT SMALL CLAIMS

14“1501.Definitions.

15“1502.Copyright Claims Board.

16“1503.Authority and duties of the Copyright Claims Board.

17“1504.Nature of proceedings.

18“1505.Registration requirement.

19“1506.Conduct of proceedings.

20“1507.Effect of proceeding.

21“1508.Review and confirmation by district court.

22“1509.Relationship to other district court actions.

23“1510.Implementation by Copyright Office.

24“1511.Funding.

25“1501. Definitions

26“In this chapter—

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28
29
30

“(1) the term ‘claimant’ means the real party in interest that commences a proceeding
before the Copyright Claims Board under section 1506(e), pursuant to a permissible claimof infringement brought under section 1504(c)(1), noninfringement brought under section
1504(c)(2), or misrepresentation brought under section 1504(c)(3);31
32“(2) the term ‘counterclaimant’ means a respondent in a proceeding before the Copyright
Claims Board that—

33
34“(A) asserts a permissible counterclaim under section 1504(c)(4) against theclaimant in the proceeding; and21
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23“(3) the term ‘party’—4“(A) means a party; and5“(B) includes the attorney of a party, as applicable; and

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9

“(4) the term ‘respondent’ means any person against whom a proceeding is brought
before the Copyright Claims Board under section 1506(e), pursuant to a permissible claimof infringement brought under section 1504(c)(1), noninfringement brought under section
1504(c)(2), or misrepresentation brought under section 1504(c)(3).

10“1502. Copyright Claims Board

11
12
13

“(a) In General.—There is established in the Copyright Office the Copyright Claims Board,which shall serve as an alternative forum in which parties may voluntarily seek to resolve certain
copyright claims regarding any category of copyrighted work, as provided in this chapter.

14“(b) Officers and Staff.—

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17
18

“(1) COPYRIGHT CLAIMS OFFICERS.—The Register of Copyrights shall recommend 6 fulltime Copyright Claims Officers to serve on the Copyright Claims Board in accordance withparagraph (3)(A). The Officers shall be appointed by the [Secretary of Commerce] to such
positions after consultation with the Register of Copyrights.

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20
21

“(2) COPYRIGHT CLAIMS ATTORNEYS.—The Register of Copyrights shall hire not fewer
than 6 full-time Copyright Claims Attorneys to assist in the administration of the Copyright
Claims Board.

22“(3) QUALIFICATIONS.—“(A) COPYRIGHT CLAIMS OFFICERS.—

23“(i) IN GENERAL.—Each Copyright Claims Officer shall be an attorney who has
not fewer than 7 years of legal experience.

24
25
26

“(ii) EXPERIENCE.—Four of the Copyright Claims Officers shall—

2728“(I) have substantial experience in the evaluation, litigation, or
adjudication of copyright infringement claims; and

29
30
31

“(II) between those 4 Officers, have represented or presided over adiversity of copyright interests, including those of both owners and users of
copyrighted works.

32
33
34
35

“(iii) ALTERNATIVE DISPUTE RESOLUTION.—The Copyright Claims Officer notdescribed in clause (ii) shall have substantial familiarity with copyright law andexperience in the field of alternative dispute resolution, including the resolution of
litigation matters through that method of resolution.

3637“(B) COPYRIGHT CLAIMS ATTORNEYS.—Each Copyright Claims Attorney shall be an
attorney who has not fewer than 3 years of substantial experience in copyright law.

38“(4) COMPENSATION.—
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2
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5

“(i) DEFINITION.—In this subparagraph, the term ‘senior level employee of theFederal Government’ means an employee, other than an employee in the Senior
Executive Service, the position of whom is classified above GS–15 of the General
Schedule.

6789“(ii) PAY RANGE.—Each Copyright Claims Officer shall be compensated at a
rate of pay that is not less than the minimum, and not more than the maximum,
rate of pay payable for senior level employees of the Federal Government,
including locality pay, as applicable.

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12

“(B) COPYRIGHT CLAIMS ATTORNEYS.—Each Copyright Claims Attorney shall becompensated at a rate of pay that is not more than the maximum rate of pay payable forlevel 10 of GS–15 of the General Schedule, including locality pay, as applicable.

13“(5) TERMS.—

14
15“(A) IN GENERAL.—Subject to subparagraph (B), a Copyright Claims Officer shallserve for a renewable term of 6 years.

1617“(B) INITIAL TERMS.—The terms for the first Copyright Claims Officers appointed
under this chapter shall be as follows:1819“(i) The first two such Copyright Claims Officer appointed shall be appointed
for a term of 4 years.

2021“(ii) The second pair of Copyright Claims Officer appointed shall be appointed
for a term of 5 years.

22
23“(iii) The third pair of Copyright Claims Officer appointed shall be appointed
for a term of 6 years.

24“(6) VACANCIES AND INCAPACITY.—“(A) VACANCY.—

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26
27
28
29

“(i) IN GENERAL.—If a vacancy occurs in the position of a Copyright Claims
Officer, the [Secretary of Commerce] shall, upon the recommendation of, and in
consultation with, the Register of Copyrights, act expeditiously to appoint a
Copyright Claims Officer for that position.

30
31
32

“(ii) VACANCY BEFORE EXPIRATION.—An individual appointed to fill a vacancy
occurring before the expiration of the term for which the predecessor of theindividual was appointed shall be appointed to serve a 6-year term.

33
34
35
36
37

“(B) INCAPACITY.—If a Copyright Claims Officer is temporarily unable to performthe duties of the Officer, the [Secretary of Commerce] shall, upon recommendation of,and in consultation with, the Register of Copyrights, act expeditiously to appoint aninterim Copyright Claims Officer to perform such duties during the period of suchincapacity.

3839“(7) SANCTION OR REMOVAL.—Subject to section 1503(b), the [Secretary of Commerce]
may sanction or remove a Copyright Claims Officer.

40“(8) ADMINISTRATIVE SUPPORT.—The Register of Copyrights shall provide the Copyright23
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Claims Officers and Copyright Claims Attorneys with necessary administrative support,
including technological facilities, to carry out the duties of the Officers and Attorneys under
this chapter.

456“(9) LOCATION OF COPYRIGHT CLAIMS BOARD.—The offices and facilities of the
Copyright Claims Officers and Copyright Claims Attorneys shall be located at the
Copyright Office.

7“1503. Authority and duties of the Copyright Claims Board

8“(a) Functions.—

910“(1) COPYRIGHT CLAIMS OFFICERS.—Subject to the provisions of this chapter andapplicable regulations, the functions of the Copyright Claims Officers shall be as follows:

1112“(A) To render determinations on the civil copyright claims, counterclaims, anddefenses that may be brought before the Officers under this chapter.

1314“(B) To ensure that claims, counterclaims, and defenses are properly asserted andotherwise appropriate for resolution by the Copyright Claims Board.

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“(C) To manage the proceedings before the Officers and render rulings pertaining to
the consideration of claims, counterclaims, and defenses, including with respect toscheduling, discovery, evidentiary, and other matters.

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“(D) To request, from participants and nonparticipants in a proceeding, theproduction of information and documents relevant to the resolution of a claim,counterclaim, or defense.

21“(E) To conduct hearings and conferences.

22“(F) To facilitate the settlement by the parties of claims and counterclaims.

23“(G) To—“(i) award monetary relief; and24“(ii) include in the determinations of the Officers a requirement that certain
activities under section 1504(e)(2) cease or be mitigated, if the party to undertakethe applicable measure has so agreed.

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“(H) To provide information to the public concerning the procedures andrequirements of the Copyright Claims Board.

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“(I) To maintain records of the proceedings before the Officers, certify official
records of such proceedings as needed, and, as provided in section 1506(t), make therecords in such proceedings available to the public.
“(J) To carry out such other duties as are set forth in this chapter.

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“(K) When not engaged in performing the duties of the Officers set forth in thischapter, to perform such other duties as may be assigned by the Register of Copyrights.

3637“(2) COPYRIGHT CLAIMS ATTORNEYS.—Subject to the provisions of this chapter andapplicable regulations, the functions of the Copyright Claims Attorneys shall be as follows:

38“(A) To provide assistance to the Copyright Claims Officers in the administration of24
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the duties of those Officers under this chapter.

23“(B) To provide assistance to members of the public with respect to the procedures
and requirements of the Copyright Claims Board.

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“(C) To provide information to potential claimants contemplating bringing apermissible action before the Copyright Claims Board about obtaining a subpoena
under section 512(h) for the sole purpose of identifying a potential respondent in suchan action.

89“(D) When not engaged in performing the duties of the Attorneys set forth in thischapter, to perform such other duties as may be assigned by the Register of Copyrights.

10“(b) Independence in Determinations.—

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“(1) IN GENERAL.—The Copyright Claims Board shall render the determinations of theBoard in individual proceedings independently on the basis of the records in theproceedings before it and in accordance with the provisions of this title, judicial precedent,
and applicable regulations of the Register of Copyrights.

1516“(2) CONSULTATION.—The Copyright Claims Officers and Copyright Claims
Attorneys—

17“(A) may consult with the Register of Copyrights on general issues of law; and1819“(B) subject to section 1506(x), may not consult with the Register of Copyrights
with respect to—2021“(i) the facts of any particular matter pending before the Officers and theAttorneys; or“(ii) the application of law to the facts described in clause (i).

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“(3) PERFORMANCE APPRAISALS.—Notwithstanding any other provision of law or any
regulation or policy of the [Department of Commerce] or Register of Copyrights, any
performance appraisal of a Copyright Claims Officer or Copyright Claims Attorney may notconsider the substantive result of any individual determination reached by the Copyright
Claims Board as a basis for appraisal except to the extent that the result may relate to any
actual or alleged violation of an ethical standard of conduct.

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“(c) Direction by Register.—Subject to subsection (b), the Copyright Claims Officers and
Copyright Claims Attorneys shall, in the administration of their duties, be under the general
direction of the Register of Copyrights.

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“(d) Inconsistent Duties Barred.—A Copyright Claims Officer or Copyright Claims Attorney
may not undertake any duty that conflicts with the duties of the Officer or Attorney in connection
with the Copyright Claims Board.

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“(e) Recusal.—A Copyright Claims Officer or Copyright Claims Attorney shall recuse himself
or herself from participation in any proceeding with respect to which the Copyright Claims
Officer or Copyright Claims Attorney, as the case may be, has reason to believe that he or she
has a conflict of interest.

3940“(f) Ex Parte Communications.—Except as may otherwise be permitted by applicable law, any
party to a proceeding before the Copyright Claims Board shall refrain from ex parte25
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communications with the Copyright Claims Officers and the Register of Copyrights concerning
the substance of any active or pending proceeding before the Copyright Claims Board.

345“(g) Judicial Review.—Actions of the Copyright Claims Officers and Register of Copyrights
under this chapter in connection with the rendering of any determination are subject to judicial
review as provided under section 1508(c) and not under chapter 7 of title 5.

6“1504. Nature of proceedings

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“(a) Voluntary Participation.—Participation in a Copyright Claims Board proceeding shall be
on a voluntary basis in accordance with this chapter, and the right of any party to instead pursue
a claim, counterclaim, or defense in a district court of the United States or any other court, and toseek a jury trial, shall be preserved.

11“(b) Statute of Limitations.—

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“(1) IN GENERAL.—A proceeding may not be maintained before the Copyright Claims
Board unless the proceeding is commenced, in accordance with section 1506(e), before the
Copyright Claims Board not later than 3 years after the claim accrued.

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“(2) TOLLING.—Subject to section 1507(a), a proceeding commenced before the
Copyright Claims Board shall toll the time permitted under section 507(b) for thecommencement of an action on the same claim in a district court of the United States during
the period in which the proceeding is pending.

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“(c) Permissible Claims, Counterclaims, and Defenses.—The Copyright Claims Board may
render determinations with respect to the following claims, counterclaims, and defenses, subject
to such further limitations and requirements, including with respect to particular classes ofworks, as may be set forth in regulations established by the Register of Copyrights:

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“(1) A claim for infringement of an exclusive right in a copyrighted work provided under
section 106 by the legal or beneficial owner of the exclusive right at the time of theinfringement for which the claimant seeks damages, if any, within the limitations set forthin subsection (e)(1).

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28“(2) A claim for a declaration of noninfringement of an exclusive right in a copyrighted
work provided under section 106, consistent with section 2201 of title 28.

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“(3) A claim under section 512(f) for misrepresentation in connection with a notificationof claimed infringement or a counter notification seeking to replace removed or disabledmaterial, except that any remedies relating to such a claim in a proceeding before the
Copyright Claims Board shall be limited to those available under this chapter.

33“(4) A counterclaim that is asserted solely against the claimant in a proceeding—3435“(A) pursuant to which the counterclaimant seeks damages, if any, within thelimitations set forth in subsection (e)(1); and“(B) that—36“(i) arises under section 106 or section 512(f) and out of the same transaction or
occurrence that is the subject of a claim of infringement brought under paragraph(1), a claim of noninfringement brought under paragraph (2), or a claim of
misrepresentation brought under paragraph (3); or

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40

26
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that is the subject of a claim of infringement brought under paragraph (1), if theagreement could affect the relief awarded to the claimant.

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“(5) A legal or equitable defense under this title or otherwise available under law, in
response to a claim or counterclaim asserted under this subsection.

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“(6) A single claim or multiple claims permitted under paragraph (1), (2), or (3) by 1 ormore claimants against 1 or more respondents, but only if all claims asserted in any 1
proceeding arise out of the same allegedly infringing activity or continuous course of
infringing activities and do not, in the aggregate, result in the recovery of such claim or
claims for damages that exceed the limitations under subsection (e)(1).

1112“(d) Excluded Claims.—The following claims and counterclaims are not subject todetermination by the Copyright Claims Board:1314“(1) A claim or counterclaim that is not a permissible claim or counterclaim undersubsection (c).

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“(2) A claim or counterclaim that has been finally adjudicated by a court of competentjurisdiction or that is pending before a court of competent jurisdiction, unless that court has
granted a stay to permit that claim or counterclaim to proceed before the Copyright Claims
Board.

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“(3) A claim or counterclaim by or against a Federal or State governmental entity.
“(4) A claim or counterclaim asserted against a person or entity residing outside of theUnited States, except in a case in which the person or entity initiated the proceeding before
the Copyright Claims Board and is subject to counterclaims under this chapter.
“(e) Permissible Remedies.—“(1) MONETARY RECOVERY.—

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“(A) ACTUAL DAMAGES, PROFITS, AND STATUTORY DAMAGES FOR INFRINGEMENT.—
With respect to a claim or counterclaim for infringement of copyright, and subject tothe limitation on total monetary recovery under subparagraph (D), the Copyright
Claims Board may award either of the following:

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“(i) Actual damages and profits determined in accordance with section 504(b),with that award taking into consideration, in appropriate cases, whether the
infringing party has agreed to cease or mitigate the infringing activity underparagraph (2).

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34“(ii) Statutory damages, which shall be determined in accordance with section
504(c), subject to the following conditions:

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“(I) With respect to works timely registered under section 412, so that theworks are eligible for an award of statutory damages in accordance with that
section, the statutory damages may not exceed $15,000 for each work
infringed.

3940“(II) With respect to works not timely registered under section 412, but
eligible for an award of statutory damages under this section, statutory
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damages may not exceed $7,500 per work infringed, or a total of $15,000 inany 1 proceeding.

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45“(III) The Copyright Claims Board may not make any finding that, or
consider whether, the infringement was committed willfully in making anaward of statutory damages.

678“(IV) The Copyright Claims Board may consider, as an additional factor
in awarding statutory damages, whether the infringer has agreed to cease or
mitigate the infringing activity under paragraph (2).

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“(B) ELECTION OF DAMAGES.—With respect to a claim or counterclaim of
infringement, at any time before final determination is rendered, the claimant or
counterclaimant shall, in accordance with the schedule established by the Copyright
Claims Board under section 1506(k), elect—1314“(i) to pursue actual damages and profits or statutory damages undersubparagraph (A); or“(ii) not to pursue damages.

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“(C) DAMAGES FOR OTHER CLAIMS.—Damages for claims and counterclaims otherthan infringement claims, such as those brought under section 512(f), shall be subject
to the limitation under subparagraph (D).

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“(D) LIMITATION ON TOTAL MONETARY RECOVERY.—Notwithstanding any otherprovision of law, a party that pursues any 1 or more claims or counterclaims in any
single proceeding before the Copyright Claims Board may not seek or recover in thatproceeding a total monetary recovery that exceeds the sum of $30,000, exclusive of
any attorneys’ fees and costs that may be awarded under section 1506(y)(2).

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“(2) AGREEMENT TO CEASE CERTAIN ACTIVITY.—In a determination of the Copyright
Claims Board, the Board shall include a requirement to cease conduct if, in the proceeding
relating to the determination—“(A) a party agrees—

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“(i) to cease activity that is found to be infringing, including removing or
disabling access to, or destroying, infringing materials; or

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“(ii) to cease sending a takedown notice or counter notice under section 512 to
the other party regarding the conduct at issue before the Board if that notice or
counter notice was found to be a knowing material misrepresentation under
section 512(f); and3435“(B) the agreement described in subparagraph (A) is reflected in the record for theproceeding.

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“(3) ATTORNEYS’ FEES AND COSTS.—Notwithstanding any other provision of law, except
in the case of bad faith conduct as provided in section 1506(y)(2), the parties to proceedings
before the Copyright Claims Board shall bear their own attorneys’ fees and costs.

3940“(f) Joint and Several Liability.—Parties to a proceeding before the Copyright Claims Board
may be found jointly and severally liable if all such parties and relevant claims or counterclaims
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arise from the same activity or activities.

234“(g) Permissible Number of Cases.—The Register of Copyrights may establish regulations
relating to the permitted number of proceedings each year by the same claimant under thischapter, in the interests of justice and the administration of the Copyright Claims Board.

5“1505. Registration requirement

678“(a) Application or Certificate.—A claim or counterclaim alleging infringement of an
exclusive right in a copyrighted work may not be asserted before the Copyright Claims Board
unless—

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“(1) the legal or beneficial owner of the copyright has first delivered a completed
application, a deposit, and the required fee for registration of the copyright to the Copyright
Office; and“(2) a registration certificate has either been issued or has not been refused.

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“(b) Certificate of Registration.—Notwithstanding any other provision of law, a claimant or
counterclaimant in a proceeding before the Copyright Claims Board shall be eligible to recoveractual damages and profits or statutory damages under this chapter for infringement of a work if
the requirements of subsection (a) have been met, except that—1718“(1) the Copyright Claims Board may not render a determination in the proceeding
until—

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21“(A) a registration certificate with respect to the work has been issued by the
Copyright Office, submitted to the Copyright Claims Board, and made available to theother parties to the proceeding; and2223“(B) the other parties to the proceeding have been provided an opportunity toaddress the registration certificate;

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“(2) if the proceeding may not proceed further because a registration certificate for thework is pending, the proceeding shall be held in abeyance pending submission of thecertificate to the Copyright Claims Board, except that, if the proceeding is held in abeyancefor more than 1 year, the Copyright Claims Board may, upon providing written notice to theparties to the proceeding, and 30 days to the parties to respond to the notice, dismiss theproceeding without prejudice; and3031“(3) if the Copyright Claims Board receives notice that registration with respect to thework has been refused, the proceeding shall be dismissed without prejudice.

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“(c) Presumption.—In a case in which a registration certificate shows that registration withrespect to a work was issued not later than 5 years after the date of the first publication of thework, the presumption under section 410(c) shall apply in a proceeding before the Copyright
Claims Board, in addition to relevant principles of law under this title.

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“(d) Regulations.—In order to ensure that actions before the Copyright Claims Board proceed
in a timely manner, the Register of Copyrights shall establish regulations allowing the Copyright
Office to make a decision, on an expedited basis, to issue or deny copyright registration for an
unregistered work that is at issue before the Board.
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12“1506. Conduct of proceedings“(a) In General.—345“(1) APPLICABLE LAW.—Proceedings of the Copyright Claims Board shall be conductedin accordance with this chapter and regulations established by the Register of Copyrights
under this chapter, in addition to relevant principles of law under this title.

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“(2) CONFLICTING PRECEDENT.—If it appears that there may be conflicting judicial
precedent on an issue of substantive copyright law that cannot be reconciled, the Copyright
Claims Board shall follow the law of the Federal jurisdiction in which the action could havebeen brought if filed in a district court of the United States, or, if the action could have beenbrought in more than 1 such jurisdiction, the jurisdiction that the Copyright Claims Board
determines has the most significant ties to the parties and conduct at issue.

1213“(b) Record.—The Copyright Claims Board shall maintain records documenting theproceedings before the Board.

14“(c) Centralized Process.—Proceedings before the Copyright Claims Board shall—

1516“(1) be conducted at the offices of the Copyright Claims Board without the requirementof in-person appearances by parties or others; and

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“(2) take place by means of written submissions, hearings, and conferences carried out
through internet-based applications and other telecommunications facilities, except that, incases in which physical or other nontestimonial evidence material to a proceeding cannot be
furnished to the Copyright Claims Board through available telecommunications facilities,
the Copyright Claims Board may make alternative arrangements for the submission of such
evidence that do not prejudice any other party to the proceeding.

2324“(d) Representation.—A party to a proceeding before the Copyright Claims Board may be, but
is not required to be, represented by—25“(1) an attorney; or

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“(2) a law student who is qualified under applicable law governing representation by law
students of parties in legal proceedings and who provides such representation on a pro bonobasis.

2930
31“(e) Commencement of Proceeding.—In order to commence a proceeding under this chapter, aclaimant shall, subject to such additional requirements as may be prescribed in regulations
established by the Register of Copyrights, file a claim with the Copyright Claims Board, that—32“(1) includes a statement of material facts in support of the claim;

33“(2) is certified under subsection (y)(1); and

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“(3) is accompanied by a filing fee in such amount as may be prescribed in regulations
established by the Register of Copyrights.
“(f) Review of Claims and Counterclaims.—“(1) CLAIMS.—Upon the filing of a claim under subsection (e), the claim shall be
reviewed by a Copyright Claims Attorney to ensure that the claim complies with thischapter and applicable regulations, subject to the following:30
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12“(A) If the claim is found to comply, the claimant shall be notified regarding thatcompliance and instructed to proceed with service of the claim under subsection (g).

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“(B) If the claim is found not to comply, the claimant shall be notified that the claim
is deficient and be permitted to file an amended claim not later than 30 days after thedate on which the claimant receives the notice, without the requirement of anadditional filing fee. If the claimant files a compliant claim within that 30-day period,
the claimant shall be so notified and be instructed to proceed with service of the claim.
If the claim is refiled within that 30-day period and still fails to comply, the claimant
shall again be notified that the claim is deficient and shall be provided a second
opportunity to amend the claim not later than 30 days after the date of that second
notice, without the requirement of an additional filing fee. If the claim is refiled again
within that second 30-day period and is compliant, the claimant shall be so notified andshall be instructed to proceed with service of the claim, but if the claim still fails tocomply, upon confirmation of such noncompliance by a Copyright Claims Officer, theproceeding shall be dismissed without prejudice. The Copyright Claims Board shallalso dismiss without prejudice any proceeding in which a compliant claim is not filed
within the applicable 30-day period.

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“(C)(i) Subject to clause (ii), for purposes of this paragraph, a claim against an
online service provider for infringement by reason of the storage of or referral or
linking to infringing material that may be subject to the limitations on liability set forthin subsection (b), (c), or (d) of section 512 shall be considered noncompliant unless theclaimant affirms in the statement required under subsection (e)(1) of this section thatthe claimant has previously notified the service provider of the claimed infringement inaccordance with subsection (b)(2)(E), (c)(3), or (d)(3) of section 512, as applicable,
and the service provider failed to remove or disable access to the material
expeditiously upon the provision of such notice.

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“(ii) If a claim is found to be noncompliant under clause (i), the Copyright Claims
Board shall provide the claimant with information concerning the service of such a
notice under the applicable provision of section 512.

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“(2) COUNTERCLAIMS.—Upon the filing and service of a counterclaim, the counterclaim
shall be reviewed by a Copyright Claims Attorney to ensure that the counterclaim complies
with the provisions of this chapter and applicable regulations. If the counterclaim is found
not to comply, the counterclaimant and the other parties to the proceeding shall be notified
that the counterclaim is deficient, and the counterclaimant shall be permitted to file andserve an amended counterclaim not later than 30 days after the date of such notice. If thecounterclaimant files and serves a compliant counterclaim within that 30-day period, thecounterclaimant and such other parties shall be so notified. If the counterclaim is refiled andserved within that 30-day period but still fails to comply, the counterclaimant and suchother parties shall again be notified that the counterclaim is deficient, and thecounterclaimant shall be provided a second opportunity to amend the counterclaim not later
than 30 days after the date of the second notice. If the counterclaim is refiled and served
again within that second 30-day period and is compliant, the counterclaimant and such otherparties shall be so notified, but if the counterclaim still fails to comply, upon confirmationof such noncompliance by a Copyright Claims Officer, the counterclaim, but not theproceeding, shall be dismissed without prejudice.
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“(3) DISMISSAL OF UNSUITABILITY.—The Copyright Claims Board shall dismiss a claim
or counterclaim without prejudice if, upon reviewing the claim or counterclaim, or at anyother time in the proceeding, the Copyright Claims Board concludes that the claim orcounterclaim is unsuitable for determination by the Copyright Claims Board, including on
account of any of the following:

6“(A) The failure to join a necessary party.

7“(B) The lack of an essential witness, evidence, or expert testimony.

8910“(C) The determination of a relevant issue of law or fact that could exceed either thenumber of proceedings the Copyright Claims Board could reasonably administer or the
subject matter competence of the Copyright Claims Board.

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“(g) Service of Notice and Claims.—In order to proceed with a claim against a respondent, aclaimant shall, not later than 90 days after receiving notification under subsection (f) to proceedwith service, file with the Copyright Claims Board proof of service on the respondent. In order toeffectuate service on a respondent, the claimant shall cause notice of the proceeding and a copyof the claim to be served on the respondent, either by personal service or pursuant to a waiver of
personal service, as prescribed in regulations established by the Register of Copyrights. Suchregulations shall include the following requirements:

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“(1) The notice of the proceeding shall adhere to a prescribed form and shall set forth thenature of the Copyright Claims Board and proceeding, the right of the respondent to opt out,
and the consequences of opting out and not opting out, including a prominent statement
that, by not opting out within 60 days after receiving the notice, the respondent—

2223“(A) loses the opportunity to have the dispute decided by a court created underarticle III of the Constitution of the United States; and“(B) waives the right to a jury trial regarding the dispute.

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“(2) The copy of the claim served on the respondent shall be the same as the claim thatwas filed with the Copyright Claims Board.

2728“(3) Personal service of a notice and claim may be effected by an individual who is not a
party to the proceeding and is older than 18 years of age.

29“(4) An individual, other than a minor or incompetent individual, may be served by—“(A) complying with State law for serving a summons in an action brought in courtsof general jurisdiction in the State where service is made;

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“(B) delivering a copy of the notice and claim to the individual personally;

3334“(C) leaving a copy of the notice and claim at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion who resides there; or

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“(D) delivering a copy of the notice and claim to an agent designated by the
respondent to receive service of process or, if not so designated, an agent authorized byappointment or by law to receive service of process.

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“(5)(A) A corporation, partnership, or unincorporated association that is subject to suit incourts of general jurisdiction under a common name shall be served by delivering a copy ofthe notice and claim to its service agent. If such service agent has not been designated,32
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service shall be accomplished—23“(i) by complying with State law for serving a summons in an action brought incourts of general jurisdiction in the State where service is made; or

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“(ii) by delivering a copy of the notice and claim to an officer, a managing or
general agent, or any other agent authorized by appointment or by law to receive
service of process in an action brought in courts of general jurisdiction in the State
where service is made and, if the agent is one authorized by statute and the statute sorequires, by also mailing a copy of the notice and claim to the respondent.

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“(B) A corporation, partnership, or unincorporated association that is subject to suit incourts of general jurisdiction under a common name may elect to designate a service agent
to receive notice of a claim against it before the Copyright Claims Board by complying withrequirements that the Register of Copyrights shall establish by regulation. The Register of
Copyrights shall maintain a current directory of service agents that is available to the public
for inspection, including through the internet, and may require such corporations,partnerships, and unincorporated associations designating such service agents to pay a fee tocover the costs of maintaining the directory.

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“(6) In order to request a waiver of personal service, the claimant may notify a
respondent, by first class mail or by other reasonable means, that a proceeding has beencommenced, such notice to be made in accordance with regulations established by theRegister of Copyrights, subject to the following:

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“(A) Any such request shall be in writing, shall be addressed to the respondent, andshall be accompanied by a prescribed notice of the proceeding, a copy of the claim as
filed with the Copyright Claims Board, a prescribed form for waiver of personal
service, and a prepaid or other means of returning the form without cost.

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“(B) The request shall state the date on which the request is sent, and shall provide
the respondent a period of 30 days, beginning on the date on which the request is sent,
to return the waiver form signed by the respondent. The signed waiver form shall, forpurposes of this subsection, constitute acceptance and proof of service as of the date on
which the waiver is signed.

3031“(7)(A) A respondent’s waiver of personal service shall not constitute a waiver of the
respondent’s right to opt out of the proceeding.

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“(B) A respondent who timely waives personal service under paragraph (6) and does not
opt out of the proceeding shall be permitted a period of 30 days, in addition to the period
otherwise permitted under the applicable procedures of the Copyright Claims Board, tosubmit a substantive response to the claim, including any defenses and counterclaims.

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“(8) A minor or an incompetent individual may only be served by complying with Statelaw for serving a summons or like process on such an individual in an action brought in the
courts of general jurisdiction of the State where service is made.

3940“(9) Service of a claim and waiver of personal service may only be effected within the
United States.

4142“(h) Notification by Copyright Claims Board.—The Register of Copyrights shall establish
regulations providing for a written notification to be sent by, or on behalf of, the Copyright33
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Claims Board to notify the respondent of a pending proceeding against the respondent, as set
forth in those regulations, which shall—

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“(1) include information concerning the respondent’s right to opt out of the proceeding,the consequences of opting out and not opting out, and a prominent statement that, by not
opting out within 60 days after the date of service under subsection (g), the respondent loses
the opportunity to have the dispute decided by a court created under article III of theConstitution of the United States and waives the right to a jury trial regarding the dispute;
and

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“(2) be in addition to, and separate and apart from, the notice requirements undersubsection (g).

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“(i) Opt-Out Procedure.—Upon being properly served with a notice and claim, a respondent
who chooses to opt out of the proceeding shall have a period of 60 days, beginning on the date ofservice, in which to provide written notice of such choice to the Copyright Claims Board, in
accordance with regulations established by the Register of Copyrights. If proof of service has
been filed by the claimant and the respondent does not submit an opt-out notice to the Copyright
Claims Board within that 60-day period, the proceeding shall be deemed an active proceeding
and the respondent shall be bound by the determination in the proceeding to the extent provided
under section 1507(a). If the respondent opts out of the proceeding during that 60-day period, theproceeding shall be dismissed without prejudice, except that, in exceptional circumstances andupon written notice to the claimant, the Copyright Claims Board may extend that 60-day period
in the interests of justice.

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“(j) Service of Other Documents.—Documents submitted or relied upon in a proceeding, otherthan the notice and claim, shall be served in accordance with regulations established by theRegister of Copyrights.

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“(k) Scheduling.—Upon confirmation that a proceeding has become an active proceeding, theCopyright Claims Board shall issue a schedule for the future conduct of the proceeding. A
schedule issued by the Copyright Claims Board may be amended by the Copyright Claims Boardin the interests of justice.

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“(l) Conferences.—One or more Copyright Claims Officers may hold a conference to addresscase management or discovery issues in a proceeding, which shall be noted upon the record of
the proceeding and may be recorded or transcribed.

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“(m) Party Submissions.—A proceeding of the Copyright Claims Board may not include any
formal motion practice, except that, subject to applicable regulations and procedures of the
Copyright Claims Board—3536“(1) the parties to the proceeding may make requests to the Copyright Claims Board toaddress case management and discovery matters, and submit responses thereto; and

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“(2) the Copyright Claims Board may request or permit parties to make submissions
addressing relevant questions of fact or law, or other matters, including matters raised sua
sponte by the Copyright Claims Officers, and offer responses thereto.

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“(n) Discovery.—Discovery in a proceeding shall be limited to the production of relevant
information and documents, written interrogatories, and written requests for admission, as
provided in regulations established by the Register of Copyrights, except that—34
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1234“(1) upon the request of a party, and for good cause shown, the Copyright Claims Board
may approve additional relevant discovery, on a limited basis, in particular matters, andmay request specific information and documents from participants in the proceeding andvoluntary submissions from nonparticipants, consistent with the interests of justice;567“(2) upon the request of a party, and for good cause shown, the Copyright Claims Board
may issue a protective order to limit the disclosure of documents or testimony that containconfidential information; and

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“(3) after providing notice and an opportunity to respond, and upon good cause shown,
the Copyright Claims Board may apply an adverse inference with respect to disputed facts
against a party who has failed to timely provide discovery materials in response to a proper
request for materials that could be relevant to such facts.

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“(o) Evidence.—The Copyright Claims Board may consider the following types of evidence ina proceeding, and such evidence may be admitted without application of formal rules ofevidence:

1516“(1) Documentary and other nontestimonial evidence that is relevant to the claims,
counterclaims, or defenses in the proceeding.

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“(2) Testimonial evidence, submitted under penalty of perjury in written form or inaccordance with subsection (p), limited to statements of the parties and nonexpert witnesses,that is relevant to the claims, counterclaims, and defenses in a proceeding, except that, in
exceptional cases, expert witness testimony or other types of testimony may be permitted by
the Copyright Claims Board for good cause shown.

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“(p) Hearings.—The Copyright Claims Board may conduct a hearing to receive oralpresentations on issues of fact or law from parties and witnesses to a proceeding, including oral
testimony, subject to the following:

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26“(1) Any such hearing shall be attended by not fewer than 2 of the Copyright Claims
Officers.

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“(2) The hearing shall be noted upon the record of the proceeding and, subject toparagraph (3), may be recorded or transcribed as deemed necessary by the Copyright
Claims Board.

3031“(3) A recording or transcript of the hearing shall be made available to any Copyright
Claims Officer who is not in attendance.

32“(q) Voluntary Dismissal.—

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“(1) BY CLAIMANT.—Upon the written request of a claimant that is received before a
respondent files a response to the claim in a proceeding, the Copyright Claims Board shalldismiss the proceeding, or a claim or respondent, as requested, without prejudice.

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“(2) BY COUNTERCLAIMANT.—Upon written request of a counterclaimant that is received
before a claimant files a response to the counterclaim, the Copyright Claims Board shalldismiss the counterclaim, such dismissal to be without prejudice.

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“(3) CLASS ACTIONS.—Any party in an active proceeding before the Copyright Claims
Board who receives notice of a pending or putative class action, arising out of the sametransaction or occurrence, in which that party is a class member may request in writing
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1234

dismissal of the proceeding before the Board. Upon notice to all claimants andcounterclaimants, the Copyright Claims Board shall dismiss the proceeding without
prejudice.
“(r) Settlement.—

5“(1) IN GENERAL.—At any time in an active proceeding, some or all of the parties may—

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7“(A) jointly request a conference with a Copyright Claims Officer for the purpose of
facilitating settlement discussions; or89“(B) submit to the Copyright Claims Board an agreement providing for settlementand dismissal of some or all of the claims and counterclaims in the proceeding.

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“(2) ADDITIONAL REQUEST.—A submission under paragraph (1)(B) may include a requestthat the Copyright Claims Board adopt some or all of the terms of the parties’ settlement ina final determination in the proceeding.

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“(s) Factual Findings.—Subject to subsection (n)(3), the Copyright Claims Board shall makefactual findings based upon a preponderance of the evidence.
“(t) Determinations.—“(1) NATURE AND CONTENTS.—A determination rendered by the Copyright Claims Board
in a proceeding shall—“(A) be reached by a majority of the Copyright Claims Board;

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“(B) be in writing, and include an explanation of the factual and legal basis of thedetermination;

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22“(C) set forth any terms by which a respondent or counterclaim respondent has
agreed to cease infringing activity under section 1504(e)(2);23
24“(D) to the extent requested under subsection (r)(2), set forth the terms of any
settlement agreed to under subsection (r)(1); and2526“(E) include a clear statement of all damages and other relief awarded, including
under subparagraphs (C) and (D).

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“(2) DISSENT.—A Copyright Claims Officer who dissents from a decision contained in a
determination under paragraph (1) may append a statement setting forth the grounds for that
dissent.

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“(3) PUBLICATION.—Each final determination of the Copyright Claims Board shall bemade available on a publicly accessible website. The Register shall establish regulations
with respect to the publication of other records and information relating to suchdeterminations, including the redaction of records to protect confidential information that is
the subject of a protective order under subsection (n)(2).

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“(4) FREEDOM OF INFORMATION ACT.—All information relating to proceedings of the
Copyright Claims Board under this chapter is exempt from disclosure to the public under
section 552(b)(3) of title 5, except for determinations, records, and information publishedunder paragraph (3).

39“(u) Respondent’s Default.—If a proceeding has been deemed an active proceeding but the36
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respondent has failed to appear or has ceased participating in the proceeding, as demonstrated by
the respondent’s failure, without justifiable cause, to meet 1 or more deadlines or requirements
set forth in the schedule adopted by the Copyright Claims Board under subsection (k), theCopyright Claims Board may enter a default determination, including the dismissal of any
counterclaim asserted by the respondent, as follows and in accordance with such otherrequirements as the Register of Copyrights may establish by regulation:

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“(1) The Copyright Claims Board shall require the claimant to submit relevant evidence
and other information in support of the claimant’s claim and any asserted damages and,upon review of such evidence and any other requested submissions from the claimant, shalldetermine whether the materials so submitted are sufficient to support a finding in favor of
the claimant under applicable law and, if so, the appropriate relief and damages, if any, tobe awarded.

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“(2) If the Copyright Claims Board makes an affirmative determination under paragraph(1), the Copyright Claims Board shall prepare a proposed default determination, and shallprovide written notice to the respondent at all addresses, including email addresses,
reflected in the records of the proceeding before the Copyright Claims Board, of thependency of a default determination by the Copyright Claims Board and of the legal
significance of such determination. Such notice shall be accompanied by the proposed
default determination and shall provide that the respondent has a period of 30 days,
beginning on the date of the notice, to submit any evidence or other information in
opposition to the proposed default determination.

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“(3) If the respondent responds to the notice provided under paragraph (2) within the 30day period provided in such paragraph, the Copyright Claims Board shall consider the
respondent’s submissions and, after allowing the other parties to address such submissions,maintain, or amend its proposed determination as appropriate, and the resulting
determination shall not be a default determination.

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“(4) If the respondent fails to respond to the notice provided under paragraph (2), theCopyright Claims Board shall proceed to issue the default determination as a final
determination. Thereafter, the respondent may only challenge such determination to theextent permitted under section 1508(c), except that, before any additional proceedings are
initiated under section 1508, the Copyright Claims Board may, in the interests of justice,vacate the default determination.

33“(v) Claimant’s Failure To Proceed.—

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“(1) FAILURE TO COMPLETE SERVICE.—If a claimant fails to complete service on a
respondent within the 90-day period required under subsection (g), the Copyright Claims
Board shall dismiss that respondent from the proceeding without prejudice. If a claimantfails to complete service on all respondents within that 90-day period, the Copyright Claims
Board shall dismiss the proceeding without prejudice.

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“(2) FAILURE TO PROSECUTE.—If a claimant fails to proceed in an active proceeding, as
demonstrated by the claimant’s failure, without justifiable cause, to meet 1 or more
deadlines or requirements set forth in the schedule adopted by the Copyright Claims Board
under subsection (k), the Copyright Claims Board may, upon providing written notice to theclaimant and a period of 30 days, beginning on the date of the notice, to respond to the37
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notice, and after considering any such response, issue a determination dismissing theclaimant’s claims, which shall include an award of attorneys’ fees and costs, if appropriate,under subsection (y)(2). Thereafter, the claimant may only challenge such determination to
the extent permitted under section 1508(c), except that, before any additional proceedings
are initiated under section 1508, the Copyright Claims Board may, in the interests of justice,vacate the determination of dismissal.

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“(w) Request for Reconsideration.—A party may, not later than 30 days after the date on
which the Copyright Claims Board issues a final determination in a proceeding under thischapter, submit a written request for reconsideration of, or an amendment to, such determination
if the party identifies a clear error of law or fact material to the outcome, or a technical mistake.
After providing the other parties an opportunity to address such request, the Copyright Claims
Board shall either deny the request or issue an amended final determination.

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“(x) Review by Register.—If the Copyright Claims Board denies a party a request forreconsideration of a final determination under subsection (w), that party may, not later than 30days after the date of such denial, request review of the final determination by the Register of
Copyrights in accordance with regulations established by the Register. Such request shall beaccompanied by a reasonable filing fee, as provided in such regulations. The review by theRegister shall be limited to consideration of whether the Copyright Claims Board abused its
discretion in denying reconsideration of the determination. After providing the other parties anopportunity to address the request, the Register shall either deny the request for review, orremand the proceeding to the Copyright Claims Board for reconsideration of issues specified in
the remand and for issuance of an amended final determination. Such amended final
determination shall not be subject to further consideration or review, other than under section
1508(c).

25“(y) Conduct of Parties and Attorneys.—

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“(1) CERTIFICATION.—The Register of Copyrights shall establish regulations requiringcertification of the accuracy and truthfulness of statements made by participants inproceedings before the Copyright Claims Board.

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“(2) BAD FAITH CONDUCT.—Notwithstanding any other provision of law, in any
proceeding in which a determination is rendered and it is established that a party pursued aclaim, counterclaim, or defense for a harassing or other improper purpose, or without areasonable basis in law or fact, then, unless inconsistent with the interests of justice, theCopyright Claims Board shall in such determination award reasonable attorneys’ fees andcosts to any adversely affected party of in an amount of not more than $5,000, except that—3536“(A) if an adversely affected party appeared pro se in the proceeding, the award tothat party shall be for costs only, in an amount of not more than $2,500; and

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“(B) in extraordinary circumstances, such as where a party has demonstrated apattern or practice of bad faith conduct as described in this paragraph, the Copyright
Claims Board may, in the interests of justice, award costs in excess of the limitations
under this paragraph.

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“(3) ADDITIONAL PENALTY.—If the Board finds that on more than 1 occasion within a 12month period a party pursued a claim, counterclaim, or defense before the Copyright Claims
Board for a harassing or other improper purpose, or without a reasonable basis in law or
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fact, that party shall be barred from initiating a claim before the Copyright Claims Board
under this chapter for a period of 12 months beginning on the date on which the Board
makes such a finding. Any proceeding commenced by that party that is still pending before
the Board when such a finding is made shall be dismissed without prejudice, except that if aproceeding has been deemed active under subsection (i), the proceeding shall be dismissed
under this paragraph only if the respondent provides written consent thereto.

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“(z) Regulations for Smaller Claims.—The Register of Copyrights shall establish regulations
to provide for the consideration and determination, by not less than 1 Copyright Claims Officer,of any claim under this chapter in which total damages sought do not exceed $5,000 (exclusiveof attorneys’ fees and costs). A determination issued under this subsection shall have the same
effect as a determination issued by the entire Copyright Claims Board.

12“1507. Effect of proceeding

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“(a) Determination.—Subject to the reconsideration and review processes provided undersubsections (w) and (x) of section 1506 and section 1508(c), the issuance of a final determinationby the Copyright Claims Board in a proceeding, including a default determination or
determination based on a failure to prosecute, shall, solely with respect to the parties to suchdetermination, preclude relitigation before any court or tribunal, or before the Copyright Claims
Board, of the claims and counterclaims asserted and finally determined by the Board, and may berelied upon for such purpose in a future action or proceeding arising from the same specificactivity or activities, subject to the following:

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“(1) A determination of the Copyright Claims Board shall not preclude litigation or
relitigation as between the same or different parties before any court or tribunal, or the
Copyright Claims Board, of the same or similar issues of fact or law in connection withclaims or counterclaims not asserted or not finally determined by the Copyright Claims
Board.

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“(2) A determination of ownership of a copyrighted work for purposes of resolving amatter before the Copyright Claims Board may not be relied upon, and shall not have any
preclusive effect, in any other action or proceeding before any court or tribunal, including
the Copyright Claims Board.

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“(3) Except to the extent permitted under this subsection and section 1508, any
determination of the Copyright Claims Board may not be cited or relied upon as legal
precedent in any other action or proceeding before any court or tribunal, including the
Copyright Claims Board.

34“(b) Class Actions Not Affected.—

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“(1) IN GENERAL.—A proceeding before the Copyright Claims Board shall not have any
effect on a class action proceeding in a district court of the United States, and section
1509(a) shall not apply to a class action proceeding in a district court of the United States.

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“(2) NOTICE OF CLASS ACTION.—Any party to an active proceeding before the Copyright
Claims Board who receives notice of a pending class action, arising out of the sametransaction or occurrence as the proceeding before the Copyright Claims Board, in which
the party is a class member shall either—“(A) opt out of the class action, in accordance with regulations established by the
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Register of Copyrights; or23“(B) seek dismissal under section 1506(q)(3) of the proceeding before the Copyright
Claims Board.

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“(c) Other Materials in Proceeding.—Except as permitted under this section and section 1508,
a submission or statement of a party or witness made in connection with a proceeding before the
Copyright Claims Board, including a proceeding that is dismissed, may not be cited or relied
upon in, or serve as the basis of, any action or proceeding concerning rights or limitations onrights under this title before any court or tribunal, including the Copyright Claims Board.

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“(d) Applicability of Section 512(g).—A claim or counterclaim before the Copyright Claims
Board that is brought under subsection (c)(1) or (c)(4) of section 1504, or brought undersubsection (c)(6) of section 1504 and that relates to a claim under subsection (c)(1) or (c)(4) ofsuch section, qualifies as an action seeking an order to restrain a subscriber from engaging in
infringing activity under section 512(g)(2)(C) if—

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“(1) notice of the commencement of the Copyright Claims Board proceeding is provided
by the claimant to the service provider’s designated agent before the service provider
replaces the material following receipt of a counter notification under section 512(g); and1718“(2) the claim brought alleges infringement of the material identified in the notification ofclaimed infringement under section 512(c)(1)(C).

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“(e) Failure To Assert Counterclaim.—The failure or inability to assert a counterclaim in aproceeding before the Copyright Claims Board shall not preclude the assertion of thatcounterclaim in a subsequent court action or proceeding before the Copyright Claims Board.

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“(f) Opt-Out or Dismissal of Party.—If a party has timely opted out of a proceeding under
section 1506(i) or is dismissed from a proceeding before the Copyright Claims Board issues afinal determination in the proceeding, the determination shall not be binding upon and shall haveno preclusive effect with respect to that party.

26“1508. Review and confirmation by district court

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“(a) In General.—In any proceeding in which a party has failed to pay damages, or has failed
otherwise to comply with the relief, awarded in a final determination of the Copyright Claims
Board, including a default determination or a determination based on a failure to prosecute, theaggrieved party may, not later than 1 year after the date on which the final determination isissued, any reconsideration by the Copyright Claims Board or review by the Register of
Copyrights is resolved, or an amended final determination is issued, whichever occurs last, apply
to the United States District Court for the District of Columbia or any other appropriate district
court of the United States for an order confirming the relief awarded in the final determination
and reducing such award to judgment. The court shall grant such order and direct entry of
judgment unless the determination is or has been vacated, modified, or corrected undersubsection (c). If the United States District Court for the District of Columbia or other district
court of the United States, as the case may be, issues an order confirming the relief awarded by
the Copyright Claims Board, the court shall impose on the party who failed to pay damages orotherwise comply with the relief, the reasonable expenses required to secure such order,
including attorneys’ fees, that were incurred by the aggrieved party.

42“(b) Filing Procedures.—40
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“(1) APPLICATION TO CONFIRM DETERMINATION.—Notice of the application undersubsection (a) for confirmation of a determination of the Copyright Claims Board and entryof judgment shall be provided to all parties to the proceeding before the Copyright Claims
Board that resulted in the determination, in accordance with the procedures applicable toservice of a motion in the district court of the United States where the application is made.

67“(2) CONTENTS OF APPLICATION.—The application under subsection (a) shall include thefollowing:

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“(A) A certified copy of the final or amended final determination of the Copyright
Claims Board, as reflected in the records of the Copyright Claims Board, following
any process of reconsideration or review by the Register of Copyrights, to be
confirmed and rendered to judgment.
“(B) A declaration by the applicant, under penalty of perjury—

1213“(i) that the copy is a true and correct copy of such determination;

14“(ii) stating the date the determination was issued;

15“(iii) stating the basis for the challenge under subsection (c)(1); and“(iv) stating whether the applicant is aware of any other proceedings before thecourt concerning the same determination of the Copyright Claims Board.

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“(c) Challenges to the Determination.—“(1) BASES FOR CHALLENGE.—Not later than 90 days after the date on which the
Copyright Claims Board issues a final or amended final determination in a proceeding, or
not later than 90 days after the date on which the Register of Copyrights completes any
process of reconsideration or review of the determination, whichever occurs later, a party
may seek a court order vacating, modifying, or correcting the determination of the
Copyright Claims Board in the following cases:

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26“(A) If the determination was issued as a result of fraud, corruption,
misrepresentation, or other misconduct.

2728“(B) If the Copyright Claims Board exceeded its authority or failed to render a final
determination concerning the subject matter at issue.

2930“(C) In the case of a default determination or determination based on a failure toprosecute, if it is established that the default or failure was due to excusable neglect.

31“(2) PROCEDURE TO CHALLENGE.—

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“(A) NOTICE OF APPLICATION.—Notice of the application to challenge adetermination of the Copyright Claims Board shall be provided to all parties to theproceeding before the Copyright Claims Board, in accordance with the procedures
applicable to service of a motion in the court where the application is made.

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“(B) STAYING OF PROCEEDINGS.—For purposes of an application under thissubsection, any judge who is authorized to issue an order to stay the proceedings inanother action brought in the same court may issue an order, to be served with thenotice of application, staying proceedings to enforce the award while the challenge ispending.
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1“1509. Relationship to other district court actions

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“(a) Stay of District Court Proceedings.—Subject to section 1507(b), a district court of theUnited States shall issue a stay of proceedings or such other relief as the court determines
appropriate with respect to any claim brought before the court that is already the subject of apending or active proceeding before the Copyright Claims Board.

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“(b) Alternative Dispute Resolution Process.—A proceeding before the Copyright Claims
Board under this chapter shall qualify as an alternative dispute resolution process under section
651 of title 28 for purposes of referral of eligible cases by district courts of the United States
upon the consent of the parties.

10“1510. Implementation by Copyright Office

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“(a) Regulations.—“(1) IMPLEMENTATION GENERALLY.—The Register of Copyrights shall establish
regulations to carry out this chapter. Such regulations shall include the fees prescribed undersubsections (e) and (x) of section 1506. The authority to issue such fees shall not limit theauthority of the Register of Copyrights to establish fees for services under section 708. All
fees received by the Copyright Office in connection with the activities under this chapter
shall be deposited by the Register of Copyrights and credited to the appropriations fornecessary expenses of the Office in accordance with section 708(d). In establishingregulations under this subsection, the Register of Copyrights shall provide for the efficientadministration of the Copyright Claims Board, and for the ability of the Copyright Claims
Board to timely complete proceedings instituted under this chapter, including byimplementing mechanisms to prevent harassing or improper use of the Copyright Claims
Board by any party.
“(2) LIMITS ON MONETARY RELIEF.—

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“(A) IN GENERAL.—Subject to subparagraph (B), the Register of Copyrights may, inorder to further the goals of the Copyright Claims Board, conduct a rulemaking toadjust the limits on monetary recovery or attorneys’ fees and costs that may beawarded under this chapter.

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“(B) EFFECTIVE DATE OF ADJUSTMENT.—Any rule under subparagraph (A) thatmakes an adjustment shall take effect at the end of the 120-day period beginning on thedate on which the Register of Copyrights submits the rule to Congress and only if
Congress does not, during that 120-day period, enact a law that provides in substancethat Congress does not approve the rule.

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“(b) Necessary Facilities.—Subject to applicable law, the Register of Copyrights may retain
outside vendors to establish internet-based, teleconferencing, and other facilities required tooperate the Copyright Claims Board.

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“(c) Fees.—Any filing fees, including the fee to commence a proceeding under section
1506(e), shall be prescribed in regulations established by the Register of Copyrights. The sum
total of such filing fees shall be in an amount of not less than $100, may not exceed the cost offiling an action in a district court of the United States, and shall be fixed in amounts that further
the goals of the Copyright Claims Board.
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1“1511. Funding

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“There are authorized to be appropriated such sums as may be necessary to pay the costs
incurred by the Copyright Office under this chapter that are not covered by fees collected forservices rendered under this chapter, including the costs of establishing and maintaining the
Copyright Claims Board and its facilities.”.

67(2) CLERICAL AMENDMENT.—The table of chapters for title 17, United States Code, isamended by adding at the end the following:

8“15.Copyright Small Claims

91501”.

101112(b) Implementation.—Not later than 1 year after the date of enactment of this Act, theCopyright Claims Board established under section 1502 of title 17, United States Code, as added
by subsection (a) of this section, shall begin operations.

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(c) Study.—Not later than 3 years after the date on which the Copyright Claims Board issues
the first determination of the Copyright Claims Board under chapter 15 of title 17, United States
Code, as added by subsection (a) of this section, the Register of Copyrights shall conduct, andreport to Congress on, a study that addresses the following:

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(1) The use and efficacy of the Copyright Claims Board in resolving copyright claims,
including the number of proceedings the Copyright Claims Board could reasonably
administer.

2021(2) Whether adjustments to the authority of the Copyright Claims Board are necessary oradvisable, including with respect to—2223(A) eligible claims, such as claims under section 1202 of title 17, United States
Code; and

24(B) works and applicable damages limitations.

2526(3) Whether greater allowance should be made to permit awards of attorneys’ fees andcosts to prevailing parties, including potential limitations on such awards.

2728(4) Potential mechanisms to assist copyright owners with small claims in ascertaining theidentity and location of unknown online infringers.

2930(5) Whether the Copyright Claims Board should be expanded to offer mediation or othernonbinding alternative dispute resolution services to interested parties.

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32(6) Such other matters as the Register of Copyrights believes may be pertinentconcerning the Copyright Claims Board.

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(d) Severability.—If any provision of this section, an amendment made by this section, or theapplication of such provision or amendment to any person or circumstance is held to beunconstitutional, the remainder of this section and the amendments made by this section, and theapplication of the provision or the amendment to any other person or circumstance, shall not beaffected.

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SEC. 8. STUDY ON ANCILLARY COPYRIGHT FOR PRESS
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PUBLISHERS.

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The Register of Copyrights shall study the costs, benefits, and viability of adding ancillary
copyright for press publishers to Federal law. The Register shall, not later than 12 months after
the date of the enactment of this Act, submit to the Congress a report on the evaluation, including
any legislative recommendations the Register may have.

6

8

SEC. 9. GOOD FAITH ERROR IN APPLICATION FOR
REGISTRATION.

9(a) Effect on Application.—Section 409 of title 17, United States Code, is amended—

7

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(1) by striking “The application” and inserting the following:“(a) In General.—The application”;(2) by striking “If an application” and inserting the following:“(b) Application for Renewed and Extended Term.—If an application”; and(3) by adding at the end the following:“(c) Good Faith Error in Application for Registration.—If an application for copyrightregistration under this section contains a good faith error, but would otherwise be registrable, theRegister of Copyrights—“(1) may not refuse registration based on the error; and“(2) shall allow the applicant to amend the application to correct the error at any time,
including after the registration of the work, without payment of any additional fee, unlesscorrection of the error requires that the original application be split into multiple separate
applications, in which case the applicant shall elect to which application the initial fee shallbe applied.”.
(b) Effect on Enforcement of Copyright.—Section 411 of title 17, United States Code, isamended—(1) in subsection (b)—(A) by striking “(b)(1)” and all that follows through the end of paragraph (2) andinserting the following:

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“(b)(1) A certificate of registration that contains inaccurate information shall not be deemed tosatisfy the requirements of this section and section 412, for the purposes of a civil action for
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infringement, if the alleged infringer proves that—23“(A) the alleged infringer reasonably relied on the inaccurate information in engaging in
the act alleged to constitute infringement; and45“(B) the act described in subparagraph (A) would not have constituted infringement had
the correct information been included in the application.”; and

67(B) by redesignating paragraph (3) as paragraph (2); and(2) by adding at the end the following:

8910“(d) Effect of Inaccurate Information on Validity of Registration.—The inclusion of inaccurate
information in an application for registration shall not affect the validity of any registration
unless subsection (b)(1) or section 413 is satisfied.”.

1112(c) Effective Date of New Registration.—Section 410(d) of title 17, United States Code, isamended—13
14(1) by striking “The Effective date” and inserting “(1) Except as provided in paragraph(2), the effective date”; and

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(2) by adding at the end, the following:“(2) If an application or certificate of registration contains a good faith error and a new
application or an application for supplementary registration is required due to the nature of theerror, the effective date of the new registration shall be the same as the effective date of theinitial registration.”.
(d) Fraud Against Copyright Office.—(1) IN GENERAL.—Chapter 4 of title 17, United States Code, is amended by adding at theend the following:

23“SEC. 413. FRAUD AGAINST COPYRIGHT OFFICE.

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“If an application for copyright registration includes inaccurate information, a certificate ofregistration shall not be deemed to satisfy the requirements of sections 411 and 412 if theinaccurate information was included on the application for copyright registration in bad faith orwith an intent to defraud the Register of Copyrights.”.

2829(2) TECHNICAL AND CONFORMING AMENDMENT.—The table of sections for chapter 4 oftitle 17, United States Code, is amended by adding at the end the following:

30“413. Fraud against Copyright Office.”.
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SEC. 10. DEPOSIT COPY RETENTION.
Section 704(d) of title 17, United States Code, is amended, in the second sentence—

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(1) by inserting “, provided that the Copyright Office, based on regulations that theRegister may promulgate, attempts to notify the depositer of the copy or the copyrightowner of record of the pending destruction or other disposition not later than 90 days before
the date on which the Register and the Librarian plan to destroy or otherwise dispose of thedeposits” after “or other disposition”; and89(2) by inserting “and published works deposited electronically” after “in the case of
unpublished works”.

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SEC. 11. FEE FUNDING AUTHORITY DURING LAPSE IN
APPROPRIATIONS.

1213(a) In General.—Section 708 of title 17, United States Code, is amended by adding at the end
the following:

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“(e) Funding Flexibility.—In the event of a lapse in annual appropriations, fees received under
this title, and amounts deducted from filing fees and royalty payments under this title, shall beavailable for obligation to support operations at the rate of offsetting collections provided in theapplicable appropriations act for the preceding fiscal year.”.

1819(b) Effective Date.—The amendment made by subsection (a) shall apply with respect to fiscal
year 2021 and each fiscal year thereafter.

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SEC. 12. AUTHORITY TO SET ALTERNATIVE FEESTRUCTURES FOR REGISTRATION AND OTHERCOPYRIGHT OFFICE SERVICES.

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Section 708 of title 17, United States Code, as amended by section 6 of this Act, is amended
by adding at the end the following:

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“(f) Subscription Fees.—The Register of Copyrights may allow the payment of the fees
required under subsection (a) on an annual basis, or with another frequency to be determined by
the Register, through a subscription rather than on a per-service basis.

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“(g) Small Entities.—“(1) AUTHORITY TO REDUCE FEES.—To encourage registration and use of Copyright
Office services by individual authors and small businesses, the Register of Copyrights may
reduce the fees that a small entity is required to pay under subsection (a).
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12“(2) SMALL ENTITY DEFINED.—The Register of Copyrights shall by regulation define theterm ‘small entity’ for purposes of this subsection.”.

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SEC. 13. CONVERSION OF APPLICATION FOR
REGISTRATION TO APPLICATION TO AMEND;PENDING REGISTRATION APPLICATIONS.

67(a) In General.—Section 409 of title 17, United States Code, as amended by section 4 of thisAct, is amended by adding at the end the following:

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“(d) Conversion of Application for Registration to Application to Amend.—If the Copyright
Office receives an application for copyright registration claiming ownership or co-ownership of a
copyright or any exclusive right in a work for which the Copyright Office previously received aseparate application and for which the Copyright Office has granted or has not yet refused
registration, the Register of Copyrights—

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“(1) shall, upon written consent of the initial applicant, allow the subsequent applicant toconvert the application for registration to an application to amend the existing registration
or initially pending application, as the case may be; and16“(2) may not charge the subsequent applicant a fee for converting the application.”.

1718(b) Pending Registration Application Search Function.—Section 705 of title 17, United States
Code, is amended—

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(1) in subsection (a), by inserting “pending applications for registration,” before“registrations,”; and2122(2) in subsection (c), by inserting “pending applications for registration,” before“registrations,”.

2324(c) Constructive Notice of Registration of Works.—Title 17, United States Code, isamended—25(1) in section 205(c), by striking paragraph (2) and inserting the following;26“(2)(A) the copyright in the work has been registered; or

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“(B) the deposit, application, and fee required for registration have been delivered to the
Copyright Office and registration has not been refused.”;(2) in section 411(c)—(B) in paragraph (2), by striking “makes registration for the work” and inserting“delivers the deposit, application, and fee required for registration to the Copyright

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Office”; and123(3) in section 412(2), by striking “such registration is made” and inserting “the effective
date of the registration is”.

45(d) Registrations Upon Counter Notification.—Section 411 of title 17, United States Code, as
amended by section 4, is amended by adding at the end the following:

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“(e) Counter Notification.—“(1) IN GENERAL.—The owner of a copyright or of any exclusive right in a work that is
the subject of a counter notification provided under section 512(g) shall be deemed to havesatisfied the requirements under subsection (a) of this section and may institute a civil
action for infringement of the copyright if—“(A) the owner—

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“(i) delivers the deposit, application, and fee required for registration to the
Copyright Office in proper form; and

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“(ii) requests and pays any applicable fees for expedited handling for theapplication in accordance with practices or regulations of the Copyright Officeauthorizing expedited processing of applications; and1718“(B) the Copyright Office does not issue a certificate of registration within 48 hours
of receiving a proper—

19“(i) application described in subparagraph (A)(i); and20“(ii) request for expedited handling described in subparagraph (A)(ii).

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“(2) LIMITATION ON FINAL JUDGMENT.—No final judgment may be entered in a civil
action for infringement under paragraph (1) until the Register of Copyrights registers orrefuses to register the work that is the basis for the civil action.”.

SEC. 14. DEPOSIT REQUIREMENT.
(a) Study on Digital Deposits.—

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(1) STUDY.—The Register of Copyrights shall conduct a study, in consultation with the
Librarian of Congress, on the acceptance of copies or phonorecords for deposit by means ofelectronic transmission under sections 407 and 408 of title 17, United States Code.

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(2) REPORT TO CONGRESS.—The Register of Copyrights, in consultation with the
Librarian of Congress, shall submit to Congress a final report that describes the results ofthe study conducted under paragraph (1) and any recommendations resulting from the48
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study.
(b) Study on Best Edition.—

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(1) STUDY.—The Register of Copyrights shall conduct a study, in consultation with the
Librarian of Congress, on best edition as it relates to the deposit of copies or phonorecords
for the use or disposition of the Library of Congress under section 407 of title 17, UnitedStates Code, and the registration of copyright claims under section 408 of title 17, UnitedStates Code.

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(2) REPORT TO CONGRESS.—The Register of Copyrights, in consultation with the
Librarian of Congress, shall submit to Congress a final report that describes the results ofthe study conducted under paragraph (1) and any recommendations resulting from thestudy.

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SEC. 15. BEST EDITION DEFINITION.

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The fifth undesignated paragraph in section 101 of title 17, United States Code, is amended byinserting after “purposes” the following: “and publishes that standard to its website”.

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SEC. 16. STUDY ON PUBLICATION.

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(a) In General.—The Register of Copyrights shall conduct a study on the definition of the term
“publication” and how the Copyright Office can better educate applicants on how to correctly
designate publication status in an application for copyright registration.

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(b) Date and Nation of First Publication.—In conducting the study under subsection (a), theRegister of Copyrights shall examine whether the requirement under section 409(8) of title 17,
United States Code, should be eliminated or made voluntary for some or all copyrightapplications.

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SEC. 17. STUDY ON DEFERRED EXAMINATION.

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The Register of Copyrights, in consultation with the Librarian of Congress, shall conduct a
study on the feasibility and benefits of adding an option for registering a work in which theregistrant can obtain an effective date of registration upon submission of an application anddeposit while choosing to defer the examination of the submitted work until the registrant
subsequently requests the examination. Such study shall take particular account of the needs of
the Library to maintain and grow its collection.

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SEC. 18. AMENDMENT OF APPLICATION FOR
REGISTRATION; DERIVATIVE WORKS.

3132(a) Amendment of Application for Registration.—Section 409 of title 17, United States Code,49
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as amended by section 8 of this Act, is amended by adding at the end the following:234“(e) Amendment of Application After Filing.—The owner of a copyright or of any exclusive
right in a work who submits an application for registration of the copyright under this section
may subsequently amend the application.”.

56(b) Derivative Works.—Section 409 of title 17, United States Code, as amended by subsection(a), is amended—

78(1) in subsection (a)(9), as so designated by section 4 of this Act, by inserting “subject tosubsection (f),” after “(9)”; and910(2) by adding at the end the following:“(f) Computer Programs That Are Derivative Works.—

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“(1) SIMPLIFIED APPLICATION PROCESS.—The Register of Copyrights shall establish a
simplified process for the application for copyright registration of a computer program thatis a derivative work of a previously registered computer program.

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“(2) DATE OF REGISTRATION.—A derivative work described in paragraph (1) shall bedeemed registered as of the date on which the deposit, application, and fee required forregistration have been delivered to the Copyright Office, subject to the registration
requirements under this title.

1819“(g) Regulations.—The Register of Copyrights shall issue regulations to establish
procedures—

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21“(1) for the deposit and registration of serial digital, online, mobile application, and otherelectronic-based publications, including newspapers and magazines; and2223“(2) that shall provide a reasonable means for copyright owners to file applications withrespect to the publications described in paragraph (1).”.

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SEC. 19. COPYRIGHT OFFICE PUBLIC ADVISORY
BOARD.

2627(a) In General.—Chapter 7 of title 17, United States Code, is amended by adding at the end thefollowing:28“11. Copyright Office Public Advisory Board

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“(a) Establishment.—The Register of Copyrights shall establish a Copyright Office Public
Advisory Board (referred to in this section as the ‘Public Advisory Board’) to advise the Registeron the operation and modernization of the information technology of the Copyright Office.

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3:14 PM12/18 DISCUSSION DRAFT FOR STAKEHOLDER COMMENTS ONLYNOT FINAL123“(b) Members.—“(1) IN GENERAL.—The Public Advisory Board shall be composed of 12 members
appointed by Register of Copyrights in accordance with paragraph (2) who—“(A) are citizens of the United States;

4“(B) have substantial background or experience in copyright and copyrightregistration practice; and56“(C) represent a diverse group of users of the services of the Copyright Office.

78“(2) APPOINTMENT.—“(A) APPOINTMENT.—Each year, the Register of Copyrights shall appoint 4
members to the Public Advisory Board for a 3-year term that begins on January 1 ofthat year.

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“(B) VACANCIES.—

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“(i) FILLING VACANCIES.—The Register of Copyrights shall fill a vacancy on
the Public Advisory Board not later than 90 days after the vacancy occurs.

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“(ii) LENGTH OF SERVICE.—A new member who is appointed to fill a vacancy
on the Public Advisory Board shall serve for the remainder of the predecessor’s
term.

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“(C) AUTHORITY OF THE RESGISTER.—A member appointed to the Public Advisory
Board shall serve at the pleasure of the Register of Copyrights.

20“(c) Chair.—

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“(1) IN GENERAL.—The Register of Copyrights shall designate a Chair and Vice-Chair of
the Public Advisory Board, from among the members of the Public Advisory Board, toserve for a 3-year term.

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“(2) VACANCY.—If the Chair resigns before the completion of his or her term, or isotherwise removed or unable to exercise the functions of the Chair, the Vice-Chair shall
exercise the functions of the Chair.

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“(d) Duties.—“(1) IN GENERAL.—The Public Advisory Board shall advise the Register of Copyrights on
the management of copyright information technology operations and information
technology modernization, including the needs of the users of the online services andwebsite of the Copyright Office.
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1234“(2) PRE-RELEASE EVALUATION.—The Register of Copyrights, as applicable, shallprovide the Public Advisory Board with the opportunity to provide input regarding userfacing systems and content, with sufficient time to provide reasonable feedback, before thesystems and content are released to the public.

56“(e) Copyright Law and Policy.—The Public Advisory Board may not advise the Copyright
Office on matters of substantive copyright law or policy.

7“(f) Meetings.—The Public Advisory Board—

8“(1) shall meet not less frequently than twice a year, at the call of the Chair; and9“(2) at each meeting, shall consider an agenda set by the Chair.

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“(g) Applicability of Certain Ethics Laws.—A member of the Public Advisory Board
appointed under subsection (b)(2) shall be treated as a special Government employee within themeaning of section 202(a) of title 18, United States Code.

1314“(h) Inapplicability of Federal Advisory Committee Act.—The Federal Advisory Committee
Act (5 U.S.C. App.) shall not apply to the Public Advisory Board.

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“(i) Open Meetings.—The meetings of the Public Advisory board shall be open to the public,
except that the Public Advisory Board may by majority vote meet in executive session when
considering privileged or confidential information.”.

1819(b) Technical and Conforming Amendment.—The table of sections for chapter 7 of title 17,
United States Code, is amended by adding at the end the following:20“11. Copyright Office Public Advisory Board.”.

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SEC. 20. GROUP REGISTRATION OF PUBLISHED AND
UNPUBLISHED WORKS.

2324(a) In General.—Section 408(c) of title 17, United States Code, as amended by section 8 ofthis Act, is amended by adding at the end the following:25
26“(4) OPTIONAL DELIVERY OF EXAMINATION MATERIALS.—In carrying out paragraph (1),the Register of Copyrights—“(A) shall establish regulations specifically permitting a single registration for agroup of works by the same individual author, all first published as contributions toperiodicals, including newspapers and online publications, whether or not updated on aset schedule, within a twelve-month period, on the basis of a single delivery of aregistration deposit, application, and fee, if—

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3:14 PM12/18 DISCUSSION DRAFT FOR STAKEHOLDER COMMENTS ONLYNOT FINAL123“(i) the deposit consists of one copy of each entire issue of each periodical, orof each entire section in the case of a newspaper or online publication, in which
each contribution was first published; and45“(ii) the application identifies each work separately, including each periodical
containing it and its date of first publication;

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“(B) may, for works not addressed in subparagraph (A), establish regulations
specifically permitting a single registration for a group of works by the same individual
author, all first published within a twelve-month period, on the basis of a singledelivery of a registration deposit, application, and fee if the application identifies eachwork separately; and1112“(C) in cases in which the Register has provided for group registration, shall allow
published and unpublished works to be registered together in one group registration.”.

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(b) Effective Date.—The amendment made by subsection (a) shall take effect on the date on
which the Register of Copyrights certifies to Congress that the information technology system of
the Copyright Office is able to support group registration of published and unpublished works, as
described in section 408(b)(4)(C) of title 17, United States Code, as added by subsection (a).

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