II

105TH CONGRESS

1ST SESSION S. 1146

To amend title 17, United States Code, to provide limitations on copyright

liability relating to material on-line, and for other purposes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 3, 1997

Mr. ASHCROFT introduced the following bill; which was read twice and

referred to the Committee on the Judiciary

A BILL

To amend title 17, United States Code, to provide limitations

on copyright liability relating to material on-line, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Digital Copyright Clar5 ification and Technology Education Act of 1997’’.

6 TITLE 1—DIGITAL COPYRIGHT CLARIFICATION

7 SEC. 101. PURPOSES.

8 The purposes of this Act are—
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1 (1) to clarify the application of copyright law in

2 the unique environment of Internet and on-line com3 munication;

4 (2) to foster the continued growth and develop5 ment of the Internet as a means of communication

6 and commerce, including the lawful distribution of

7 intellectual property;

8 (3) to protect the rights of copyright owners in

9 the digital environment;

10 (4) to clarify that providing network services

11 and facilities with respect to the transmission of

12 electronic communications of another person does

13 not result in liability under the Copyright Act;

14 (5) to clarify that Internet and on-line service

15 providers are not liable for third-party copyright in16 fringements unless they have received notice in com17 pliance with this Act of the infringing material and

18 have a reasonable opportunity to limit the third19 party infringement; and

20 (6) to create incentives for the rapid elimination

21 of infringing material residing on an electronic com22 munications system or network without litigation.
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1 SEC. 102. CLARIFICATION OF LIABILITY.

2 (a) IN GENERAL.—Chapter 5 of title 17, United

3 States Code, is amended by adding after section 511 the

4 following new section:

5 ‘‘§ 512. Liability relating to material on the Internet

6 and on-line

7 ‘‘(a) MATERIAL BEING TRANSMITTED THROUGH AN

8 ELECTRONIC COMMUNICATIONS SYSTEM OR NETWORK.—

9 ‘‘(1) NETWORK SERVICES WITH RESPECT TO

10 THE TRANSMISSION OF ELECTRONIC COMMUNICA11 TIONS.—A person shall not be liable for direct, vi12 carious or contributory infringement of copyright

13 arising out of providing electronic communications

14 network services or facilities with respect to a copy15 right infringement by a user. A person shall be con16 sidered to provide ‘‘network services and facilities’’

17 when such person transmits, routes or provides con18 nections for material on behalf of a user over an

19 electronic communications system or network con20 trolled or operated by or for the person, including

21 intermediate and transient storage, the processing of

22 information, and the provision of facilities therefor,

23 if—

24 ‘‘(A) the provision of services is for the

25 purpose of managing, controlling or operating a

26 communications system or network, supplying
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1 local access, local exchange, telephone toll,

2 trunk line, private line, or backbone services, in3 cluding network components or functions nec4 essary to the transmission of material contained

5 in electronic communications carried over those

6 services; or

7 ‘‘(B) the transmission of material over the

8 system or network on behalf of a user does not

9 involve the generation or material alteration of

10 content by the person.

11 ‘‘(2) PRIVATE AND REAL-TIME COMMUNICATION

12 SERVICES.—A person shall not be liable for direct,

13 vicarious or contributory infringement of copyright

14 arising from supplying to another—

15 ‘‘(A) a private electronic communication,

16 including voice messaging or electronic mail

17 services, or any other communication for which

18 such person lacks either the technical ability or

19 authority under law to access or disclose such

20 communication to any third party in the normal

21 course of business; or

22 ‘‘(B) real-time communication formats, in23 cluding chat rooms, streamed data, or other vir24 tually simultaneous transmissions.
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1 ‘‘(3) INFORMATION LOCATION TOOLS.—No per2 son shall be liable for direct, vicarious or contribu3 tory infringement of copyright arising out of supply4 ing a user of network services or facilities with—

5 ‘‘(A) a site-linking aid or directory, includ6 ing a hyperlink or index;

7 ‘‘(B) a navigational aid, including a search

8 engine or browser; or

9 ‘‘(C) the tools for the creation of a site10 linking aid.

11 ‘‘(b) MATERIAL RESIDING ON A SYSTEM OR NET12 WORK.—

13 ‘‘(1) COOPERATIVE PROCEDURE FOR EXPEDI14 TIOUS RESPONSE TO CLAIMS OF INFRINGEMENT.—A

15 person shall not be liable for direct, vicarious or con16 tributory infringement of copyright arising out of

17 the violation of any of the exclusive rights of the

18 copyright owner by another with respect to material

19 residing on a system or network used in conjunction

20 with electronic communications that is controlled or

21 operated by or for the person, unless upon receiving

22 notice complying with paragraph (b)(3), the person

23 fails expeditiously to remove, disable, or block access

24 to the material to the extent technologically feasible

25 and economically reasonable for a period of ten days,
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1 or until receiving a court order concerning the mate2 rial, whichever is less.

3 ‘‘(2) Paragraph (b)(1) shall apply where such

4 person—

5 ‘‘(A) did not initiate the placement of the

6 material on the system or network;

7 ‘‘(B) did not determine the content of the

8 material placed on the system of network; and

9 ‘‘(C) did not contract for placement of the

10 specific material on the system or network by

11 another person in order to provide that content

12 as part of the person’s service offering.

13 ‘‘(3) A person shall not be deemed to have no14 tice that material residing on a system or network

15 used in conjunction with electronic communications

16 is infringing unless the person—

17 ‘‘(A) is in receipt of a notification that the

18 particular material is infringing. Such notifica19 tion shall:

20 ‘‘(i) pertain only to allegedly infring21 ing material that resides on a system or

22 network controlled or operated by or for

23 the person;

24 ‘‘(ii) be submitted in accordance with

25 directions displayed on the person’s system
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1 or network indicating a single place or per2 son to which such notifications shall be

3 submitted;

4 ‘‘(iii) be signed, physically or elec5 tronically, by an owner of an exclusive

6 right that is allegedly infringed, or by a

7 person authorized to act on such owner’s

8 behalf;

9 ‘‘(iv) provide an address, telephone

10 number, and electronic mail address, if

11 available, at which the complaining party

12 may be contacted in a timely manner;

13 ‘‘(v) describe the material claimed to

14 be infringing, including information rea15 sonably sufficient to permit the person ex16 peditiously to identify and locate the mate17 rial;

18 ‘‘(vi) provide reasonable proof of a

19 certificate of copyright registration for the

20 material in question, a filed application for

21 such registration, or a court order estab22 lishing that use of the material in the man23 ner complained of is not authorized by the

24 copyright owner or the law;
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1 ‘‘(vii) contain a sworn statement that

2 the information in the notice is accurate,

3 that the complaining party is an owner of

4 the exclusive right that is claimed to be in5 fringed or otherwise has the authority to

6 enforce the owner’s rights under this title,

7 and that the complaining party has a good

8 faith belief that the use complained of is

9 an infringement;

10 ‘‘(viii) be accompanied by any pay11 ment that the Register of Copyrights de12 termines is necessary to deter frivolous and

13 de minimis notices; and

14 ‘‘(B) A person who is an employee or

15 agent of a nonprofit educational institution, li16 brary or archives, acting within the scope of his

17 employment, or such an educational institution,

18 library or archives itself, shall not be deemed to

19 have notice under subparagraph (A) if that per20 son reasonably believed (i) that the allegedly in21 fringing use was a fair use under Sec. 10 or (ii)

22 was otherwise lawful; and

23 ‘‘(C) The Register of Copyrights may, by

24 regulation, establish guidelines identifying addi25 tional information to be included in the notice
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1 and shall issue a standard notice form in both

2 electronic and hard copy formats, which com3 plies with this paragraph, but failure of a party

4 to provide any such additional information, or

5 failure to use any issued form, shall not invali6 date the notice.

7 ‘‘(4) MISREPRESENTATIONS AND REDRESS FOR

8 WRONGFUL NOTIFICATIONS.—Any person who mate9 rially misrepresents that material on-line is infring10 ing in a notice described in paragraph (b)(3)(A),

11 shall be liable in a civil action that may be brought

12 in an appropriate United States district court or

13 State court for statutory damages of not less than

14 $1,000, and any actual damages, including costs and

15 attorneys’ fees, incurred by—

16 ‘‘(A) the actual copyright owner or the al17 leged infringer arising out of the disabling or

18 blocking of access to or removal of such mate19 rial; or

20 ‘‘(B) any person who relies upon such mis21 representation in removing, disabling, or block22 ing access to the material claimed to be infring23 ing in such notice.

24 ‘‘(5) LIMITATION ON LIABILITY BASED UPON

25 REMOVING, DISABLING, OR BLOCKING ACCESS TO IN-
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1 FRINGING MATERIAL.—A person shall not be liable

2 for any claim based on that person’s removing, dis3 abling, or blocking access for a period of ten days,

4 or until the person receives a court order concerning

5 the material, whichever is less, to material residing

6 on a system or network used in conjunction with

7 electronic communications that is controlled or oper8 ated by or for that person in response to notice pur9 suant to paragraph (b)(3)(A) that the material is in10 fringing, whether or not the material is infringing.

11 ‘‘(6) OTHER DEFENSES NOT AFFECTED.—A

12 person’s removing, disabling, or blocking access to

13 material residing on a system or network used in

14 conjunction with electronic communications that is

15 controlled or operated by or for that person, pursu16 ant to paragraph (1), or the failure to do so, shall

17 not adversely bear upon the consideration by a court

18 of any other issue pertaining to liability or remedy,

19 including any other limitation on liability established

20 in paragraph (a), any other applicable defense, any

21 claim that the service provider’s alleged conduct is

22 not infringing, or whether or not such conduct is

23 willful or innocent.’’.
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1 (b) CONFORMING AMENDMENT.—The table of sec2 tions for chapter 5 of title 17, United States Code, is

3 amended at the end the following:

‘‘512. Liability relating to material on the Internet and on-line.’’.

4 TITLE II—TECHNOLOGY FOR TEACHERS AND

5 LIBRARIANS

6 SEC. 201. SHORT TITLE.

7 This title may be cited as the ‘‘Technology for Edu8 cators and Children (TECh) Act’’.

9 SEC. 202. FAIR USE.

10 (a) TRANSMISSIONS.—The first sentence of section

11 107 of title 17, United States Code, is amended by insert12 ing after ‘‘or by any other means specified in that sec13 tion,’’ the following: ‘‘and by analog or digital trans14 mission,’’.

15 (b) DETERMINATION.—Section 107 of title 17,

16 United States Code, is amended by adding at the end

17 thereof the following: ‘‘In making a determination con18 cerning fair use, no independent weight shall be afforded

19 to—

20 ‘‘(1) the means by which the work has been

21 performed, displayed or distributed under the au22 thority of the copyright owner; or

23 ‘‘(2) the application of an effective technological

24 measure (as defined under section 1201(c)) to the

25 work.’’.
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1 SEC. 203. LIBRARY EXEMPTIONS.

2 Section 108 of title 17, United States Code, is

3 amended—

4 (1) by striking ‘‘Notwithstanding’’ at the begin5 ning of subsection (a) and inserting: ‘‘Except as oth6 erwise provided and notwithstanding’’;

7 (2) by inserting after ‘‘copyright’’ in subsection

8 (a)(3): ‘‘if such notice appears on the copy or phono9 record that is reproduced under the provisions of

10 this section’’;

11 (3) in subsection (b) by—

12 (A) deleting ‘‘a copy or phonorecord’’ and

13 inserting in lieu thereof: ‘‘three copies or

14 phonorecords’’; and

15 (B) deleting ‘‘in facsimile form’’; and

16 (4) in subsection (c) by—

17 (A) deleting ‘‘a copy or phonorecord’’ and

18 inserting in lieu thereof: ‘‘three copies or

19 phonorecords’’;

20 (B) deleting ‘‘in facsimile form’’; and

21 (C) inserting ‘‘or if the existing format in

22 which the work is stored has become obsolete,’’

23 after ‘‘stolen,’’.
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1 SEC. 204. DISTANCE EDUCATION.

2 (a) TITLE CHANGE.—The title of section 117 of title

3 17,

4 United States Code, is amended to read as follows:

5 ‘‘§ 110. Limitations on exclusive rights: Exemption of

6 certain activities’’;

7 (b) PERFORMANCE, DISPLAY AND DISTRIBUTION OF

8 A WORK.—Section 110(2) of title 17, United States Code,

9 is amended to read as follows:

10 ‘‘(2) performance, display or distribution of a

11 work, by or in the course of an analog or digital

12 transmission, if—

13 ‘‘(A) the performance, display or distribu14 tion is a regular part of the systematic instruc15 tional activities of a governmental body or a

16 nonprofit educational institution;

17 ‘‘(B) the performance, display or distribu18 tion is directly related and of material assist19 ance to the teaching content of the trans20 mission; and

21 ‘‘(C) the work is provided for reception

22 by—

23 ‘‘(i) students officially enrolled in the

24 course in connection with which it is pro25 vided; or
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1 ‘‘(ii) officers or employees of govern2 mental bodies as part of their official du3 ties or employment;’’

4 (c) EPHEMERAL RECORDINGS OF WORKS.—Section

5 112(b) of title 17, United States Code, is amended by de6 leting ‘‘transmit a performance or display of’’ and insert7 ing in lieu thereof: ‘‘perform, display or distribute’’.

8 SEC. 205. LIMITATIONS ON EXCLUSIVE RIGHTS.

9 (a) TITLE.—The title of section 117 of title 17,

10 United States Code, is amended to read as follows:

11 ‘‘§ 117. Limitations on exclusive rights: Computer

12 programs and digital copies’’;

13 (b) DIGITAL COPIES.—Section 117 of title 17, United

14 States Code, is amended by inserting ‘‘(a)’’ before ‘‘Not15 withstanding’’ and inserting the following as a new sub16 section (b):

17 ‘‘(b) Notwithstanding the provisions of section 106,

18 it is not an infringement to make a copy of a work in

19 a digital format if such copying—

20 ‘‘(1) is incidental to the operation of a device in

21 the course of the use of a work otherwise lawful

22 under this title; and

23 ‘‘(2) does not conflict with the normal exploi24 tation of the work and does not unreasonably preju25 dice the legitimate interests of the author.’’.
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1 TITLE III—WIPO TREATY IMPLEMENTATION

2 SEC. 301. WIPO IMPLEMENTATION

3 Title 17 of the United States Code is amended by

4 adding the following sections:

5 ‘‘§ 1201. Circumvention of certain technological meas6 ures

7 ‘‘(a) CIRCUMVENTION CONDUCT.—No person, for the

8 purpose of facilitating or engaging in an act of infringe9 ment, shall engage in conduct so as knowingly to remove,

10 deactivate or otherwise circumvent the application or oper11 ation of any effective technological measure used by a

12 copyright owner to preclude or limit reproduction of a

13 work or a portion thereof. As used in this subsection, the

14 term ‘conduct’ does not include manufacturing, importing

15 or distributing a device or a computer program.

16 ‘‘(b) CONDUCT GOVERNED BY SEPARATE CHAP17 TER.—Notwithstanding subsection (a), this section shall

18 not apply with respect to conduct or the offer or perform19 ance of a service governed by a separate chapter of this

20 title.

21 ‘‘(c) DEFINITION OF EFFECTIVE TECHNOLOGICAL

22 MEASURE.—As used in this section, the term ‘effective

23 technological measure’ means information included with or

24 an attribute applied to a transmission or a copy of a work

25 in a digital format, or a portion thereof, so as to protect
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1 the rights of a copyright owner of such work or portion

2 thereof under chapter one of this title and which—

3 ‘‘(1) encrypts or scrambles the work or a por4 tion thereof in the absence of access information

5 supplied by the copyright owner; or

6 ‘‘(2) includes attributes regarding access to or

7 recording of the work that cannot be removed with8 out degrading the work or a portion thereof.

9 ‘‘§ 1202. Integrity of copyright management informa10 tion

11 ‘‘(a) FALSE COPYRIGHT MANAGEMENT INFORMA12 TION.—No person shall knowingly provide copyright man13 agement information that is false, or knowingly publicly

14 distribute or import for distribution copyright manage15 ment information that is false, with intent to induce, facili16 tate, or conceal infringement.

17 ‘‘(b) REMOVAL OR ALTERATION OF COPYRIGHT

18 MANAGEMENT INFORMATION.—No person shall, without

19 authority of the copyright owner or other lawful authority,

20 knowingly and with intent to mislead or to induce or facili21 tate infringement—

22 ‘‘(1) remove or alter any copyright management

23 information;

24 ‘‘(2) publicly distribute or import for distribu25 tion a copy of phonorecord containing copyright
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1 management information that has been altered with2 out authority of the copyright owner or other lawful

3 authority; or

4 ‘‘(3) publicly distribute or import for distribu5 tion a copy or phonorecord from which copyright

6 management information has been removed without

7 authority of the copyright owner or other lawful au8 thority:

9 Provided, That the conduct governed by this subsection

10 does not include the manufacturing, importing or distrib11 uting of a device.

12 (c) DEFINITION OF COPYRIGHT MANAGEMENT IN13 FORMATION.—As used in this chapter, the term ‘copyright

14 management information’ means the following information

15 in electronic form as carried in or as data accompanying

16 a copy of phonorecord of a work, including in digital form:

17 ‘‘(1) The title and other information identifying

18 the work, including the information set forth in a

19 notice of copyright;

20 ‘‘(2) The name and other identifying informa21 tion of the author of the work;

22 ‘‘(3) The name and other identifying informa23 tion of the copyright owner of the work, including

24 the information set forth in a notice of copyright;

25 ‘‘(4) Terms and conditions for uses of the work;
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1 ‘‘(5) Identifying numbers or symbols referring

2 to such information or links to such information;

3 and

4 ‘‘(6) Such other identifying information con5 cerning the work as the Register of Copyrights may

6 prescribe by regulation:

7 Provided, That the term ‘copyright management informa8 tion’ does not include the information described in section

9 1002, section 1201(c), or a chapter of this title other than

10 chapters one through nine of this title: Provided further,

11 That, in order to assure privacy protection, the term

12 ‘copyright management information’ does not include any

13 personally identifiable information relating to the user of

14 a work, including but not limited to the name, account,

15 address or other contact information of or pertaining to

16 the user.

17 ‘‘§ 1203. Civil remedies

18 ‘‘(a) CIVIL ACTIONS.—Any person aggrieved by a vio19 lation of section 1201(a) or 1202 may bring a civil action

20 in an appropriate United States district court against any

21 person for such violation.

22 ‘‘(b) POWERS OF THE COURT.—In an action brought

23 under subsection (a), the court—
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1 ‘‘(1) may grant a temporary and a permanent

2 injunction on such terms as it deems reasonable to

3 prevent or restrain a violation;

4 ‘‘(2) may grant such other equitable relief as it

5 deems appropriate;

6 ‘‘(3) may award damages pursuant to sub7 section (c);

8 ‘‘(4) may allow the recovery of costs by or

9 against any party other than the United States or

10 an officer thereof; and

11 ‘‘(5) may award a reasonable attorney’s fee to

12 the prevailing party.

13 ‘‘(c) AWARD OF DAMAGES.—

14 ‘‘(1) IN GENERAL.—If the court finds that a

15 violation of section 1201(a) or 1202 has occurred,

16 the complaining party may elect to either actual

17 damages as computed under paragraph (2) or statu18 tory damages as computed under paragraph (3).

19 ‘‘(2) ACTUAL DAMAGES.—The court may award

20 to the complaining party the actual damages suf21 fered by him or her as a result of the violation, and

22 any profits of the violator that are attributable to

23 the violation and are not taken into account in com24 puting the actual damages, if the complaining party
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1 elects such damages instead of statutory damages at

2 any time before final judgment is entered.

3 ‘‘(3) STATUTORY DAMAGES.—(A) The court

4 may award to the complaining party statutory dam5 ages for each violation of section 1201(a) of not less

6 than $250 or more than $2,500, as the court consid7 ers just, if the complaining party elects such dam8 ages instead of actual damages at any time before

9 final judgment is entered.

10 ‘‘(B) The court may award to the complaining

11 party statutory damages for each violation of section

12 1202 of not less than $500 or more than $20,000,

13 as the court considers just, if the complaining party

14 elects such damages instead of actual damages at

15 any time before final judgment is entered.

16 ‘‘(4) REPEATED VIOLATIONS.—In an case in

17 which the court finds that a person has violated sec18 tion 1201(a) or 1202 within three years after a final

19 judgment against that person for another such viola20 tion was entered, the court may increase the award

21 of damages to not more than double the amount

22 that would otherwise be awarded under paragraph

23 (2) or (3), as the court considers just.

24 ‘‘(5) INNOCENT VIOLATION.—The court may re25 duce or remit altogether the total award of damages
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1 that otherwise would be awarded under paragraph

2 (2) or (3) in any case in which the violator sustains

3 the burden of proving, and the court finds, that the

4 violator was not aware and had no reason to believe

5 that its acts constituted a violation of section

6 1201(a) or 1202.’’.

7 SEC. 302. CONFORMING AMENDMENTS.

8 (a) TABLE OF SECTIONS.—The table of sections for

9 chapter 1 of title 17, United States Code, is amended by—

10 (1) revising the item relating to section 110 to

11 read as follows:

‘‘110. Limitations on exclusive rights: Exemption of certain activities.’’;

12 and

13 (2) revising the item relating to section 117 to

14 read as follows:

‘‘117. Limitations on exclusive rights: Computer programs and digital copies.’’.

15 (b) TABLE OF CHAPTERS.—The table of chapters for

16 title 17, United States Code, is amended by adding at the

17 end the following:

‘‘12. Copyright Protection and Management Systems ............................. 1201’’.

18 SEC. 303. EFFECTIVE DATES.

19 (a) IN GENERAL.—Sections one through seven and

20 section 9(a) of this Act, and the amendments made by

21 sections one through seven and section 9(a) of this Act,

22 shall take effect on the date of enactment of this Act.
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1 (b) WIPO TREATIES.—Section 8 and section 9(b) of

2 this Act, and the amendments made by section 8 and sec3 tion 9(b) of this Act, shall take effect on the date on which

4 both the World Intellectual Property Organization Copy5 right Treaty and the World Intellectual Property Organi6 zation Performances and Phonograms Treaty have en7 tered into force with respect to the United States.

Æ