★

105TH CONGRESS

2D SESSION S. 2037

AN ACT

To amend title 17, United States Code, to implement the

WIPO Copyright Treaty and the WIPO Performances

and Phonograms Treaty, to provide limitations on copyright liability relating to material online, 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 Millennium

5 Copyright Act of 1998’’.
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1 SEC. 2. TABLE OF CONTENTS.

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—WIPO TREATIES IMPLEMENTATION

Sec. 101. Short title.

Sec. 102. Technical amendments.

Sec. 103. Copyright protection systems and copyright management information.

Sec. 104. Conforming amendment.

Sec. 105. Effective date.

TITLE II—INTERNET COPYRIGHT INFRINGEMENT LIABILITY

Sec. 201. Short title.

Sec. 202. Limitations on liability for Internet copyright infringement.

Sec. 203. Conforming amendment.

Sec. 204. Liability of educational institutions for online infringement of copyright.

Sec. 205. Effective date.

TITLE III—COMPUTER MAINTENANCE OR REPAIR

Sec. 301. Limitation on exclusive rights; computer programs.

TITLE IV—EPHEMERAL RECORDINGS; DISTANCE EDUCATION;

EXEMPTION FOR LIBRARIES AND ARCHIVES

Sec. 401. Ephemeral recordings.

Sec. 402. Limitations on exclusive rights; distance education.

Sec. 403. Exemption for libraries and archives.

2 TITLE I—WIPO TREATIES

3 IMPLEMENTATION

4 SEC. 101. SHORT TITLE.

5 This title may be cited as the ‘‘WIPO Copyright and

6 Performances and Phonograms Treaties Implementation

7 Act of 1998’’.

8 SEC. 102. TECHNICAL AMENDMENTS.

9 (a) Section 101 of title 17, United States Code, is

10 amended—

11 (1) by deleting the definition of ‘‘Berne Conven12 tion work’’;
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1 (2) in the definition of ‘‘The ‘country of origin’

2 of a Berne Convention work’’, by deleting ‘‘The

3 ‘country of origin’ of a Berne Convention work,’’,

4 capitalizing the first letter of the word ‘‘for’’, delet5 ing ‘‘is the United States’’ after ‘‘For purposes of

6 section 411,’’, and inserting ‘‘a work is a ‘United

7 States work’ only’’ after ‘‘For purposes of section

8 411,’’;

9 (3) in paragraph (1)(B) of the definition of

10 ‘‘The ‘country of origin’ of a Berne Convention

11 work’’, by inserting ‘‘treaty party or parties’’ and

12 deleting ‘‘nation or nations adhering to the Berne

13 Convention’’;

14 (4) in paragraph (1)(C) of the definition of

15 ‘‘The ‘country of origin’ of a Berne Convention

16 work’’, by inserting ‘‘is not a treaty party’’ and de17 leting ‘‘does not adhere to the Berne Convention’’;

18 (5) in paragraph (1)(D) of the definition of

19 ‘‘The ‘country of origin’ of a Berne Convention

20 work’’, by inserting ‘‘is not a treaty party’’ and de21 leting ‘‘does not adhere to the Berne Convention’’;

22 (6) in paragraph (3) of the definition of ‘‘The

23 ‘country of origin’ of a Berne Convention work’’, by

24 deleting ‘‘For the purposes of section 411, the ‘coun-
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1 try of origin’ of any other Berne Convention work is

2 not the United States.’’;

3 (7) after the definition for ‘‘fixed’’, by inserting

4 ‘‘The ‘Geneva Phonograms Convention’ is the Con5 vention for the Protection of Producers of

6 Phonograms Against Unauthorized Duplication of

7 Their Phonograms, concluded at Geneva, Switzer8 land on October 29, 1971.’’;

9 (8) after the definition for ‘‘including’’, by in10 serting ‘‘An ‘international agreement’ is—

11 ‘‘(1) the Universal Copyright Convention;

12 ‘‘(2) the Geneva Phonograms Convention;

13 ‘‘(3) the Berne Convention;

14 ‘‘(4) the WTO Agreement;

15 ‘‘(5) the WIPO Copyright Treaty;

16 ‘‘(6) the WIPO Performances and Phonograms

17 Treaty; and

18 ‘‘(7) any other copyright treaty to which the

19 United States is a party.’’;

20 (9) after the definition for ‘‘transmit’’, by in21 serting ‘‘A ‘treaty party’ is a country or intergovern22 mental organization other than the United States

23 that is a party to an international agreement.’’;

24 (10) after the definition for ‘‘widow’’, by insert25 ing ‘‘The ‘WIPO Copyright Treaty’ is the WIPO
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1 Copyright Treaty concluded at Geneva, Switzerland,

2 on December 20, 1996.’’;

3 (11) after the definition for ‘‘The ‘WIPO Copy4 right Treaty’, by inserting ‘‘The ‘WIPO Perform5 ances and Phonograms Treaty’ is the WIPO Per6 formances and Phonograms Treaty concluded at Ge7 neva, Switzerland on December 20, 1996.’’; and

8 (12) by inserting, after the definition for ‘‘work

9 for hire’’, ‘‘The ‘WTO Agreement’ is the Agreement

10 Establishing the World Trade Organization entered

11 into on April 15, 1994. The terms ‘WTO Agree12 ment’ and ‘WTO member country’ have the mean13 ings given those terms in paragraphs (9) and (10)

14 respectively of section 2 of the Uruguay Round

15 Agreements Act.’’.

16 (b) Section 104 of title 17, United States Code, is

17 amended—

18 (1) in subsection (b)(1), by deleting ‘‘foreign

19 nation that is a party to a copyright treaty to which

20 the United States is also a party’’ and inserting

21 ‘‘treaty party’’;

22 (2) in subsection (b)(2) by deleting ‘‘party to

23 the Universal Copyright Convention’’ and inserting

24 ‘‘treaty party’’;
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1 (3) by renumbering the present subsection

2 (b)(3) as (b)(5) and moving it to its proper sequen3 tial location and inserting a new subsection (b)(3) to

4 read:

5 ‘‘(3) the work is a sound recording that was

6 first fixed in a treaty party; or’’;

7 (4) in subsection (b)(4) by deleting ‘‘Berne

8 Convention work’’ and inserting ‘‘pictorial, graphic

9 or sculptural work that is incorporated in a building

10 or other structure, or an architectural work that is

11 embodied in a building and the building or structure

12 is located in the United States or a treaty party’’;

13 (5) by renumbering present subsection (b)(5) as

14 (b)(6);

15 (6) by inserting a new subsection (b)(7) to

16 read:

17 ‘‘(7) for purposes of paragraph (2), a work that

18 is published in the United States or a treaty party

19 within thirty days of publication in a foreign nation

20 that is not a treaty party shall be considered first

21 published in the United States or such treaty party

22 as the case may be.’’; and

23 (7) by inserting a new subsection (d) to read:

24 ‘‘(d) EFFECT OF PHONOGRAMS TREATIES.—Not25 withstanding the provisions of subsection (b), no works
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1 other than sound recordings shall be eligible for protection

2 under this title solely by virtue of the adherence of the

3 United States to the Geneva Phonograms Convention or

4 the WIPO Performances and Phonograms Treaty.’’.

5 (c) Section 104A(h) of title 17, United States Code,

6 is amended—

7 (1) in paragraph (1), by deleting ‘‘(A) a nation

8 adhering to the Berne Convention or a WTO mem9 ber country; or (B) subject to a Presidential procla10 mation under subsection (g),’’ and inserting—

11 ‘‘(A) a nation adhering to the Berne Con12 vention;

13 ‘‘(B) a WTO member country;

14 ‘‘(C) a nation adhering to the WIPO Copy15 right Treaty;

16 ‘‘(D) a nation adhering to the WIPO Per17 formances and Phonograms Treaty; or

18 ‘‘(E) subject to a Presidential proclamation

19 under subsection (g)’’;

20 (2) paragraph (3) is amended to read as fol21 lows:

22 ‘‘(3) the term ‘eligible country’ means a nation,

23 other than the United States that—
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1 ‘‘(A) becomes a WTO member country

2 after the date of enactment of the Uruguay

3 Round Agreements Act;

4 ‘‘(B) on the date of enactment is, or after

5 the date of enactment becomes, a nation adher6 ing to the Berne Convention;

7 ‘‘(C) adheres to the WIPO Copyright

8 Treaty;

9 ‘‘(D) adheres to the WIPO Performances

10 and Phonograms Treaty; or

11 ‘‘(E) after such date of enactment becomes

12 subject to a proclamation under subsection

13 (g).’’;

14 (3) in paragraph (6)(C)(iii), by deleting ‘‘and’’

15 after ‘‘eligibility’’;

16 (4) at the end of paragraph (6)(D), by deleting

17 the period and inserting ‘‘; and’’;

18 (5) by adding the following new paragraph

19 (6)(E):

20 ‘‘(E) if the source country for the work is

21 an eligible country solely by virtue of its adher22 ence to the WIPO Performances and

23 Phonograms Treaty, is a sound recording.’’;
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1 (6) in paragraph (8)(B)(i), by inserting ‘‘of

2 which’’ before ‘‘the majority’’ and striking ‘‘of eligi3 ble countries’’; and

4 (7) by deleting paragraph (9).

5 (d) Section 411 of title 17, United States Code, is

6 amended—

7 (1) in subsection (a), by deleting ‘‘actions for

8 infringement of copyright in Berne Convention

9 works whose country of origin is not the United

10 States and’’; and

11 (2) in subsection (a), by inserting ‘‘United

12 States’’ after ‘‘no action for infringement of the

13 copyright in any’’.

14 (e) Section 507(a) of title 17, United States Code,

15 is amended by adding at the beginning, ‘‘Except as ex16 pressly provided elsewhere in this title,’’.

17 SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPY18 RIGHT MANAGEMENT INFORMATION.

19 Title 17, United States Code, is amended by adding

20 the following new chapter:

21 ‘‘CHAPTER 12—COPYRIGHT PROTECTION AND

22 MANAGEMENT SYSTEMS

‘‘Sec.

‘‘1201. Circumvention of copyright protection systems.

‘‘1202. Integrity of copyright management information.

‘‘1203. Civil remedies.

‘‘1204. Criminal offenses and penalties.

‘‘1205. Savings Clause.
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1 ‘‘§ 1201. Circumvention of copyright protection sys2 tems

3 ‘‘(a) VIOLATIONS REGARDING CIRCUMVENTION OF

4 TECHNOLOGICAL PROTECTION MEASURES.—(1) No per5 son shall circumvent a technological protection measure

6 that effectively controls access to a work protected under

7 this title.

8 ‘‘(2) No person shall manufacture, import, offer to

9 the public, provide or otherwise traffic in any technology,

10 product, service, device, component, or part thereof that—

11 ‘‘(A) is primarily designed or produced for the

12 purpose of circumventing a technological protection

13 measure that effectively controls access to a work

14 protected under this title;

15 ‘‘(B) has only limited commercially significant

16 purpose or use other than to circumvent a techno17 logical protection measure that effectively controls

18 access to a work protected under this title; or

19 ‘‘(C) is marketed by that person or another act20 ing in concert with that person with that person’s

21 knowledge for use in circumventing a technological

22 protection measure that effectively controls access to

23 a work protected under this title.

24 ‘‘(3) As used in this subsection—

25 ‘‘(A) to ‘circumvent a technological protection

26 measure’ means to descramble a scrambled work, to
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1 decrypt an encrypted work, or otherwise to avoid,

2 bypass, remove, deactivate, or impair a technological

3 protection measure, without the authority of the

4 copyright owner; and

5 ‘‘(B) a technological protection measure ‘effec6 tively controls access to a work’ if the measure, in

7 the ordinary course of its operation, requires the ap8 plication of information, or a process or a treatment,

9 with the authority of the copyright owner, to gain

10 access to the work.

11 ‘‘(b) ADDITIONAL VIOLATIONS.—(1) No person shall

12 manufacture, import, offer to the public, provide, or other13 wise traffic in any technology, product, service, device,

14 component, or part thereof that—

15 ‘‘(A) is primarily designed or produced for the

16 purpose of circumventing protection afforded by a

17 technological protection measure that effectively pro18 tects a right of a copyright owner under this title in

19 a work or a portion thereof;

20 ‘‘(B) has only limited commercially significant

21 purpose or use other than to circumvent protection

22 afforded by a technological protection measure that

23 effectively protects a right of a copyright owner

24 under this title in a work or a portion thereof; or
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1 ‘‘(C) is marketed by that person or another act2 ing in concert with that person with that person’s

3 knowledge for use in circumventing protection af4 forded by a technological protection measure that ef5 fectively protects a right of a copyright owner under

6 this title in a work or a portion thereof.

7 ‘‘(2) As used in this subsection—

8 ‘‘(A) to ‘circumvent protection afforded by a

9 technological protection measure’ means avoiding,

10 bypassing, removing, deactivating, or otherwise im11 pairing a technological protection measure; and

12 ‘‘(B) a technological protection measure ‘effec13 tively protects a right of a copyright owner under

14 this title’ if the measure, in the ordinary course of

15 its operation, prevents, restricts, or otherwise limits

16 the exercise of a right of a copyright owner under

17 this title.

18 ‘‘(c) OTHER RIGHTS, ETC., NOT AFFECTED.—(1)

19 Nothing in this section shall affect rights, remedies, limi20 tations, or defenses to copyright infringement, including

21 fair use, under this title.

22 ‘‘(2) Nothing in this section shall enlarge or diminish

23 vicarious or contributory liability for copyright infringe24 ment in connection with any technology, product, service,

25 device, component or part thereof.
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1 ‘‘(3) Nothing in this section shall require that the de2 sign of, or design and selection of parts and components

3 for, a consumer electronics, telecommunications, or com4 puting product provide for a response to any particular

5 technological protection measure, so long as such part or

6 component or the product, in which such part or compo7 nent is integrated, does not otherwise fall within the prohi8 bitions of subsection (a)(2) or (b)(1).

9 ‘‘(d) EXEMPTION FOR NONPROFIT LIBRARIES, AR10 CHIVES, AND EDUCATIONAL INSTITUTIONS.—(1) A non11 profit library, archives, or educational institution which

12 gains access to a commercially exploited copyrighted work

13 solely in order to make a good faith determination of

14 whether to acquire a copy of that work for the sole purpose

15 of engaging in conduct permitted under this title shall not

16 be in violation of subsection (a)(1). A copy of a work to

17 which access has been gained under this paragraph—

18 ‘‘(A) may not be retained longer than necessary

19 to make such good faith determination; and

20 ‘‘(B) may not be used for any other purpose.

21 ‘‘(2) The exemption made available under paragraph

22 (1) shall only apply with respect to a work when an iden23 tical copy of that work is not reasonably available in an24 other form.
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1 ‘‘(3) A nonprofit library, archives, or educational in2 stitution that willfully for the purpose of commercial ad3 vantage or financial gain violates paragraph (1)—

4 ‘‘(A) shall, for the first offense, be subject to

5 the civil remedies under section 1203; and

6 ‘‘(B) shall, for repeated or subsequent offenses,

7 in addition to the civil remedies under section 1203,

8 forfeit the exemption provided under paragraph (1).

9 ‘‘(4) This subsection may not be used as a defense

10 to a claim under subsection (a)(2) or (b), nor may this

11 subsection permit a nonprofit library, archives, or edu12 cational institution to manufacture, import, offer to the

13 public, provide, or otherwise traffic in any technology

14 which circumvents a technological protection measure.

15 ‘‘(5) In order for a library or archives to qualify for

16 the exemption under this subsection, the collections of that

17 library or archives shall be—

18 ‘‘(A) open to the public; or

19 ‘‘(B) available not only to researchers affiliated

20 with the library or archives or with the institution

21 of which it is a part, but also to other persons doing

22 research in a specialized field.

23 ‘‘(e) LAW ENFORCEMENT AND INTELLIGENCE AC24 TIVITIES.—This section does not prohibit any lawfully au25 thorized investigative, protective, or intelligence activity of
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1 an officer, agent or employee of the United States, a

2 State, or a political subdivision of a State, or a person

3 acting pursuant to a contract with such entities.

4 ‘‘(f) Notwithstanding the provisions of subsection

5 (a)(1), a person who has lawfully obtained the right to

6 use a copy of a computer program may circumvent a tech7 nological protection measure that effectively controls ac8 cess to a particular portion of that program for the sole

9 purpose of identifying and analyzing those elements of the

10 program that are necessary to achieve interoperability of

11 an independently created computer program with other

12 programs, and that have not previously been readily avail13 able to the person engaging in the circumvention, to the

14 extent any such acts of identification and analysis do not

15 constitute infringement under this title.

16 ‘‘(g) Notwithstanding the provisions of subsections

17 (a)(2) and (b), a person may develop and employ techno18 logical means to circumvent for the identification and

19 analysis described in subsection (f), or for the limited pur20 pose of achieving interoperability of an independently cre21 ated computer program with other programs, where such

22 means are necessary to achieve such interoperability, to

23 the extent that doing so does not constitute infringement

24 under this title.
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1 ‘‘(h) The information acquired through the acts per2 mitted under subsection (f), and the means permitted

3 under subsection (g), may be made available to others if

4 the person referred to in subsections (f) or (g) provides

5 such information or means solely for the purpose of

6 achieving interoperability of an independently created

7 computer program with other programs, and to the extent

8 that doing so does not constitute infringement under this

9 title, or violate applicable law other than this title.

10 ‘‘(i) For purposes of subsections (f), (g), and (h), the

11 term ‘‘interoperability’’ means the ability of computer pro12 grams to exchange information, and for such programs

13 mutually to use the information which has been ex14 changed.

15 ‘‘(j) In applying subsection (a) to a component or

16 part, the court may consider the necessity for its intended

17 and actual incorporation in a technology, product, service

18 or device, which (i) does not itself violate the provisions

19 of this chapter and (ii) has the sole purpose to prevent

20 the access of minors to material on the Internet.

21 ‘‘§ 1202. Integrity of copyright management informa22 tion

23 ‘‘(a) FALSE COPYRIGHT MANAGEMENT INFORMA24 TION.—No person shall knowingly and with the intent to

25 induce, enable, facilitate or conceal infringement—
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1 ‘‘(1) provide copyright management information

2 that is false, or

3 ‘‘(2) distribute or import for distribution copy4 right management information that is false.

5 ‘‘(b) REMOVAL OR ALTERATION OF COPYRIGHT

6 MANAGEMENT INFORMATION.—No person shall, without

7 the authority of the copyright owner or the law—

8 ‘‘(1) intentionally remove or alter any copyright

9 management information,

10 ‘‘(2) distribute or import for distribution copy11 right management information knowing that the

12 copyright management information has been re13 moved or altered without authority of the copyright

14 owner or the law, or

15 ‘‘(3) distribute, import for distribution, or pub16 licly perform works, copies of works, or

17 phonorecords, knowing that copyright management

18 information has been removed or altered without au19 thority of the copyright owner or the law,

20 knowing, or, with respect to civil remedies under section

21 1203, having reasonable grounds to know, that it will in22 duce, enable, facilitate or conceal an infringement of any

23 right under this title.

24 ‘‘(c) DEFINITION.—As used in this chapter, ‘copy25 right management information’ means the following infor-
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1 mation conveyed in connection with copies or phonorecords

2 of a work or performances or displays of a work, including

3 in digital form—

4 ‘‘(1) the title and other information identifying

5 the work, including the information set forth on a

6 notice of copyright;

7 ‘‘(2) the name of, and other identifying infor8 mation about, the author of a work;

9 ‘‘(3) the name of, and other identifying infor10 mation about, the copyright owner of the work, in11 cluding the information set forth in a notice of copy12 right;

13 ‘‘(4) with the exception of public performances

14 of works by radio and television broadcast stations

15 the name of, and other identifying information

16 about, a performer whose performance is fixed in a

17 work other than an audiovisual work;

18 ‘‘(5) with the exception of public performances

19 of works by radio and television broadcast stations,

20 in the case of an audiovisual work, the name of, and

21 other identifying information about, a writer, per22 former, or director who is credited in the audiovisual

23 work;

24 ‘‘(6) terms and conditions for use of the work;
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1 ‘‘(7) identifying numbers or symbols referring

2 to such information or links to such information; or

3 ‘‘(8) such other information as the Register of

4 Copyrights may prescribe by regulation, except that

5 the Register of Copyrights may not require the pro6 vision of any information concerning the user of a

7 copyrighted work.

8 ‘‘(d) LAW ENFORCEMENT AND INTELLIGENCE AC9 TIVITIES.—This section does not prohibit any lawfully au10 thorized investigative, protective, or intelligence activity of

11 an officer, agent, or employee of the United States, a

12 State, or a political subdivision of a State, or a person

13 acting pursuant to a contract with such entities.

14 ‘‘(e) LIMITATIONS ON LIABILITY.—

15 ‘‘(1) ANALOG TRANSMISSIONS.—In the case of

16 an analog transmission, a person who is making

17 transmissions in its capacity as a radio or television

18 broadcast station, or as a cable system, or someone

19 who provides programming to such station or sys20 tem, shall not be liable for a violation of subsection

21 (b) if—

22 ‘‘(A) avoiding the activity that constitutes

23 such violation is not technically feasible or

24 would create an undue financial hardship on

25 such person; and
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1 ‘‘(B) such person did not intend, by engag2 ing in such activity, to induce, enable, facilitate

3 or conceal infringement.

4 ‘‘(2) DIGITAL TRANSMISSIONS.—

5 ‘‘(A) If a digital transmission standard for

6 the placement of copyright management infor7 mation for a category of works is set in a vol8 untary, consensus standard-setting process in9 volving a representative cross-section of radio or

10 television broadcast stations or cable systems

11 and copyright owners of a category of works

12 that are intended for public performance by

13 such stations or systems, a person identified in

14 subsection (e)(1) shall not be liable for a viola15 tion of subsection (b) with respect to the par16 ticular copyright management information ad17 dressed by such standard if—

18 ‘‘(i) the placement of such information

19 by someone other than such person is not

20 in accordance with such standard; and

21 ‘‘(ii) the activity that constitutes such

22 violation is not intended to induce, enable,

23 facilitate or conceal infringement.

24 ‘‘(B) Until a digital transmission standard

25 has been set pursuant to subparagraph (A) with
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1 respect to the placement of copyright manage2 ment information for a category or works, a

3 person identified in subsection (e)(1) shall not

4 be liable for a violation of subsection (b) with

5 respect to such copyright management informa6 tion, where the activity that constitutes such

7 violation is not intended to induce, enable, fa8 cilitate or conceal infringement, if—

9 ‘‘(i) the transmission of such informa10 tion by such person would result in a per11 ceptible visual or aural degradation of the

12 digital signal; or

13 ‘‘(ii) the transmission of such infor14 mation by such person would conflict

15 with—

16 ‘‘(I) an applicable government

17 regulation relating to transmission of

18 information in a digital signal;

19 ‘‘(II) an applicable industry-wide

20 standard relating to the transmission

21 of information in a digital signal that

22 was adopted by a voluntary consensus

23 standards body prior to the effective

24 date of this section; or
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1 ‘‘(III) an applicable industry-wide

2 standard relating to the transmission

3 of information in a digital signal that

4 was adopted in a voluntary, consensus

5 standards-setting process open to par6 ticipation by a representative cross7 section of radio or television broadcast

8 stations or cable systems and copy9 right owners of a category of works

10 that are intended for public perform11 ance by such stations or systems.

12 ‘‘§ 1203. Civil remedies

13 ‘‘(a) CIVIL ACTIONS.—Any person injured by a viola14 tion of section 1201 or 1202 may bring a civil action in

15 an appropriate United States district court for such viola16 tion.

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

18 under subsection (a), the court—

19 ‘‘(1) may grant temporary and permanent in20 junctions on such terms as it deems reasonable to

21 prevent or restrain a violation;

22 ‘‘(2) at any time while an action is pending,

23 may order the impounding, on such terms as it

24 deems reasonable, of any device or product that is

25 in the custody or control of the alleged violator and
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1 that the court has reasonable cause to believe was

2 involved in a violation;

3 ‘‘(3) may award damages under subsection (c);

4 ‘‘(4) in its discretion may allow the recovery of

5 costs by or against any party other than the United

6 States or an officer thereof;

7 ‘‘(5) in its discretion may award reasonable at8 torney’s fees to the prevailing party; and

9 ‘‘(6) may, as part of a final judgment or decree

10 finding a violation, order the remedial modification

11 or the destruction of any device or product involved

12 in the violation that is in the custody or control of

13 the violator or has been impounded under paragraph

14 (2).

15 ‘‘(c) AWARD OF DAMAGES.—

16 ‘‘(1) IN GENERAL.—Except as otherwise pro17 vided in this chapter, a person committing a viola18 tion of section 1201 or 1202 is liable for either—

19 ‘‘(A) the actual damages and any addi20 tional profits of the violator, as provided in

21 paragraph (2), or

22 ‘‘(B) statutory damages, as provided in

23 paragraph (3).

24 ‘‘(2) ACTUAL DAMAGES.—The court shall

25 award to the complaining party the actual damages
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1 suffered by the party as a result of the violation,

2 and any profits of the violator that are attributable

3 to the violation and are not taken into account in

4 computing the actual damages, if the complaining

5 party elects such damages at any time before final

6 judgment is entered.

7 ‘‘(3) STATUTORY DAMAGES.—

8 ‘‘(A) At any time before final judgment is

9 entered, a complaining party may elect to re10 cover an award of statutory damages for each

11 violation of section 1201 in the sum of not less

12 than $200 or more than $2,500 per act of cir13 cumvention, device, product, component, offer,

14 or performance of service, as the court consid15 ers just.

16 ‘‘(B) At any time before final judgment is

17 entered, a complaining party may elect to re18 cover an award of statutory damages for each

19 violation of section 1202 in the sum of not less

20 than $2,500 or more than $25,000.

21 ‘‘(4) REPEATED VIOLATIONS.—In any case in

22 which the injured party sustains the burden of prov23 ing, and the court finds, that a person has violated

24 section 1201 or 1202 within three years after a final

25 judgment was entered against the person for another
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1 such violation, the court may increase the award of

2 damages up to triple the amount that would other3 wise be awarded, as the court considers just.

4 ‘‘(5) INNOCENT VIOLATIONS.—

5 ‘‘(A) IN GENERAL.—The court in its dis6 cretion may reduce or remit the total award of

7 damages in any case in which the violator sus8 tains the burden of proving, and the court

9 finds, that the violator was not aware and had

10 no reason to believe that its acts constituted a

11 violation.

12 ‘‘(B) NONPROFIT LIBRARY, ARCHIVES, OR

13 EDUCATIONAL INSTITUTIONS.—In the case of a

14 nonprofit library, archives, or educational insti15 tution, the court shall remit damages in any

16 case in which the library, archives, or edu17 cational institution sustains the burden of prov18 ing, and the court finds, that the library, ar19 chives, or educational institution was not aware

20 and had no reason to believe that its acts con21 stituted a violation.

22 ‘‘§ 1204. Criminal offenses and penalties

23 ‘‘(a) IN GENERAL.—Any person who violates section

24 1201 or 1202 willfully and for purposes of commercial ad25 vantage or private financial gain—
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1 ‘‘(1) shall be fined not more than $500,000 or

2 imprisoned for not more than 5 years, or both for

3 the first offense; and

4 ‘‘(2) shall be fined not more than $1,000,000 or

5 imprisoned for not more than 10 years, or both for

6 any subsequent offense.

7 ‘‘(b) LIMITATION FOR NONPROFIT LIBRARY, AR8 CHIVES, OR EDUCATIONAL INSTITUTION.—Subsection (a)

9 shall not apply to a nonprofit library, archives, or edu10 cational institution.

11 ‘‘(c) STATUTE OF LIMITATIONS.—Notwithstanding

12 section 507(a) of this title, no criminal proceeding shall

13 be brought under this section unless such proceeding is

14 commenced within five years after the cause of action

15 arose.

16 ‘‘§ 1205. Savings Clause

17 ‘‘Nothing in this chapter abrogates, diminishes or

18 weakens the provisions of, nor provides any defense or ele19 ment of mitigation in a criminal prosecution or civil action

20 under, any Federal or State law that prevents the violation

21 of the privacy of an individual in connection with the indi22 vidual’s use of the Internet.’’.

23 SEC. 104. CONFORMING AMENDMENT.

24 The table of chapters for title 17, United States

25 Code, is amended by adding at the end the following:

‘‘12. Copyright Protection and Management Systems ............................. 1201’’.
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1 SEC. 105. EFFECTIVE DATE.

2 (a) IN GENERAL.—Subject to subsection (b), the

3 amendments made by this title shall take effect on the

4 date of the enactment of this Act.

5 (b) AMENDMENTS RELATING TO CERTAIN INTER6 NATIONAL AGREEMENTS.—(1) The following shall take ef7 fect upon entry into force of the WIPO Copyright Treaty

8 with respect to the United States—

9 (A) paragraph (5) of the definition of ‘‘inter10 national agreement’’ contained in section 101 of title

11 17, United States Code, as amended by section

12 102(a)(8) of this title;

13 (B) the amendment made by section 102(a)(10)

14 of this title;

15 (C) subparagraph (C) of section 104A(h)(1) of

16 title 17, United States Code, as amended by section

17 102(c)(1) of this title; and

18 (D) subparagraph (C) of section 104A(h)(3) of

19 title 17, United States Code, as amended by section

20 102(c)(2) of this title.

21 (2) The following shall take effect upon the entry into

22 force of the WIPO Performances and Phonograms Treaty

23 with respect to the United States—

24 (A) paragraph (6) of the definition of ‘‘inter25 national agreement’’ contained in section 101 of title
28

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1 17, United States Code, as amended by section

2 102(a)(8) of this title;

3 (B) the amendment made by section 102(a)(11)

4 of this title;

5 (C) the amendment made by section 102(b)(7)

6 of this title;

7 (D) subparagraph (D) of section 104A(h)(1) of

8 title 17, United States Code, as amended by section

9 102(c)(2) of this title;

10 (E) the amendment made by section 102(c)(4)

11 of this title; and

12 (F) the amendment made by section 102(c)(5)

13 of this title.

14 TITLE II—INTERNET COPYRIGHT

15 INFRINGEMENT LIABILITY

16 SEC. 201. SHORT TITLE.

17 This title may be cited as the ‘‘Internet Copyright

18 Infringement Liability Clarification Act of 1998’’.

19 SEC. 202. LIMITATIONS ON LIABILITY FOR INTERNET COPY20 RIGHT INFRINGEMENT.

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

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

23 following new section:
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1 ‘‘§ 512. Liability of service providers for online in2 fringement of copyright

3 ‘‘(a) DIGITAL NETWORK COMMUNICATIONS.—A serv4 ice provider shall not be liable for monetary relief, or ex5 cept as provided in subsection (i) for injunctive or other

6 equitable relief, for infringement for the provider’s trans7 mitting, routing, or providing connections for, material

8 through a system or network controlled or operated by or

9 for the service provider, or the intermediate and transient

10 storage of such material in the course of such transmit11 ting, routing or providing connections, if—

12 ‘‘(1) it was initiated by or at the direction of a

13 person other than the service provider;

14 ‘‘(2) it is carried out through an automatic

15 technical process without selection of such material

16 by the service provider;

17 ‘‘(3) the service provider does not select the re18 cipients of such material except as an automatic re19 sponse to the request of another;

20 ‘‘(4) no such copy of such material made by the

21 service provider is maintained on the system or net22 work in a manner ordinarily accessible to anyone

23 other than anticipated recipients, and no such copy

24 is maintained on the system or network in a manner

25 ordinarily accessible to the anticipated recipients for
30

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1 a longer period than is reasonably necessary for the

2 communication; and

3 ‘‘(5) the material is transmitted without modi4 fication to its content.

5 ‘‘(b) SYSTEM CACHING.—A service provider shall not

6 be liable for monetary relief, or except as provided in sub7 section (i) for injunctive or other equitable relief, for in8 fringement for the intermediate and temporary storage of

9 material on the system or network controlled or operated

10 by or for the service provider: Provided, That—

11 ‘‘(1) such material is made available online by

12 a person other than such service provider,

13 ‘‘(2) such material is transmitted from the per14 son described in paragraph (1) through such system

15 or network to someone other than that person at the

16 direction of such other person,

17 ‘‘(3) the storage is carried out through an auto18 matic technical process for the purpose of making

19 such material available to users of such system or

20 network who subsequently request access to that ma21 terial from the person described in paragraph (1):

22 Provided further, That—

23 ‘‘(4) such material is transmitted to such subse24 quent users without modification to its content from

25 the manner in which the material otherwise was
31

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1 transmitted from the person described in paragraph

2 (1);

3 ‘‘(5) such service provider complies with rules

4 concerning the refreshing, reloading or other updat5 ing of such material when specified by the person

6 making that material available online in accordance

7 with an accepted industry standard data commu8 nications protocol for the system or network through

9 which that person makes the material available: Pro10 vided further, That the rules are not used by the

11 person described in paragraph (1) to prevent or un12 reasonably impair such intermediate storage;

13 ‘‘(6) such service provider does not interfere

14 with the ability of technology associated with such

15 material that returns to the person described in

16 paragraph (1) the information that would have been

17 available to such person if such material had been

18 obtained by such subsequent users directly from

19 such person: Provided further, That such tech20 nology—

21 ‘‘(A) does not significantly interfere with

22 the performance of the provider’s system or

23 network or with the intermediate storage of the

24 material;
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1 ‘‘(B) is consistent with accepted industry

2 standard communications protocols; and

3 ‘‘(C) does not extract information from the

4 provider’s system or network other than the in5 formation that would have been available to

6 such person if such material had been accessed

7 by such users directly from such person;

8 ‘‘(7) either—

9 ‘‘(A) the person described in paragraph (1)

10 does not currently condition access to such ma11 terial; or

12 ‘‘(B) if access to such material is so condi13 tioned by such person, by a current individual

14 pre-condition, such as a pre-condition based on

15 payment of a fee, or provision of a password or

16 other information, the service provider permits

17 access to the stored material in significant part

18 only to users of its system or network that have

19 been so authorized and only in accordance with

20 those conditions; and

21 ‘‘(8) if the person described in paragraph (1)

22 makes that material available online without the au23 thorization of the copyright owner, then the service

24 provider responds expeditiously to remove, or disable

25 access to, the material that is claimed to be infring-
33

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1 ing upon notification of claimed infringements de2 scribed in subsection (c)(3): Provided further, That

3 the material has previously been removed from the

4 originating site, and the party giving the notification

5 includes in the notification a statement confirming

6 that such material has been removed or access to it

7 has been disabled or ordered to be removed or have

8 access disabled.

9 ‘‘(c) INFORMATION STORED ON SERVICE PROVID10 ERS.—

11 ‘‘(1) IN GENERAL.—A service provider shall not

12 be liable for monetary relief, or except as provided

13 in subsection (i) for injunctive or other equitable re14 lief, for infringement for the storage at the direction

15 of a user of material that resides on a system or net16 work controlled or operated by or for the service pro17 vider, if the service provider—

18 ‘‘(A)(i) does not have actual knowledge

19 that the material or activity is infringing,

20 ‘‘(ii) in the absence of such actual knowl21 edge, is not aware of facts or circumstances

22 from which infringing activity is apparent, or

23 ‘‘(iii) if upon obtaining such knowledge or

24 awareness, the service provider acts expedi-
34

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1 tiously to remove or disable access to, the mate2 rial;

3 ‘‘(B) does not receive a financial benefit di4 rectly attributable to the infringing activity,

5 where the service provider has the right and

6 ability to control such activity; and

7 ‘‘(C) in the instance of a notification of

8 claimed infringement as described in paragraph

9 (3), responds expeditiously to remove, or disable

10 access to, the material that is claimed to be in11 fringing or to be the subject of infringing activ12 ity.

13 ‘‘(2) DESIGNATED AGENT.—The limitations on

14 liability established in this subsection apply only if

15 the service provider has designated an agent to re16 ceive notifications of claimed infringement described

17 in paragraph (3), by substantially making the name,

18 address, phone number, electronic mail address of

19 such agent, and other contact information deemed

20 appropriate by the Register of Copyrights, available

21 through its service, including on its website, and by

22 providing such information to the Copyright Office.

23 The Register of Copyrights shall maintain a current

24 directory of agents available to the public for inspec-
35

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1 tion, including through the Internet, in both elec2 tronic and hard copy formats.

3 ‘‘(3) ELEMENTS OF NOTIFICATION.—

4 ‘‘(A) To be effective under this subsection,

5 a notification of claimed infringement means

6 any written communication provided to the

7 service provider’s designated agent that includes

8 substantially the following—

9 ‘‘(i) a physical or electronic signature

10 of a person authorized to act on behalf of

11 the owner of an exclusive right that is al12 legedly infringed;

13 ‘‘(ii) identification of the copyrighted

14 work claimed to have been infringed, or, if

15 multiple such works at a single online site

16 are covered by a single notification, a rep17 resentative list of such works at that site;

18 ‘‘(iii) identification of the material

19 that is claimed to be infringing or to be

20 the subject of infringing activity that is to

21 be removed or access to which is to be dis22 abled, and information reasonably suffi23 cient to permit the service provider to lo24 cate the material;
36

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1 ‘‘(iv) information reasonably sufficient

2 to permit the service provider to contact

3 the complaining party, such as an address,

4 telephone number, and, if available an elec5 tronic mail address at which the complain6 ing party may be contacted;

7 ‘‘(v) a statement that the complaining

8 party has a good faith belief that use of

9 the material in the manner complained of

10 is not authorized by the copyright owner,

11 or its agent, or the law; and

12 ‘‘(vi) a statement that the information

13 in the notification is accurate, and under

14 penalty of perjury, that the complaining

15 party has the authority to enforce the own16 er’s rights that are claimed to be infringed.

17 ‘‘(B) A notification from the copyright

18 owner or from a person authorized to act on be19 half of the copyright owner that fails substan20 tially to conform to the provisions of paragraph

21 (3)(A) shall not be considered under paragraph

22 (1)(A) in determining whether a service pro23 vider has actual knowledge or is aware of facts

24 or circumstances from which infringing activity

25 is apparent: Provided, That the provider
37

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1 promptly attempts to contact the complaining

2 party or takes other reasonable steps to assist

3 in the receipt of notice under paragraph (3)(A)

4 when the notice is provided to the service pro5 vider’s designated agent and substantially satis6 fies the provisions of paragraphs (3)(A) (ii),

7 (iii), and (iv).

8 ‘‘(d) INFORMATION LOCATION TOOLS.—A service

9 provider shall not be liable for monetary relief, or except

10 as provided in subsection (i) for injunctive or other equi11 table relief, for infringement for the provider referring or

12 linking users to an online location containing infringing

13 material or activity by using information location tools, in14 cluding a directory, index, reference, pointer or hypertext

15 link, if the provider—

16 ‘‘(1) does not have actual knowledge that the

17 material or activity is infringing or, in the absence

18 of such actual knowledge, is not aware of facts or

19 circumstances from which infringing activity is ap20 parent;

21 ‘‘(2) does not receive a financial benefit directly

22 attributable to the infringing activity, where the

23 service provider has the right and ability to control

24 such activity; and
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1 ‘‘(3) responds expeditiously to remove or disable

2 the reference or link upon notification of claimed in3 fringement as described in subsection (c)(3): Pro4 vided, That for the purposes of this paragraph, the

5 element in subsection (c)(3)(A)(iii) shall be identi6 fication of the reference or link, to material or activ7 ity claimed to be infringing, that is to be removed

8 or access to which is to be disabled, and information

9 reasonably sufficient to permit the service provider

10 to locate such reference or link.

11 ‘‘(e) MISREPRESENTATIONS.—Any person who know12 ingly materially misrepresents under this section—

13 (1) that material or activity is infringing, or

14 (2) that material or activity was removed or

15 disabled by mistake or misidentification,

16 shall be liable for any damages, including costs and attor17 neys’ fees, incurred by the alleged infringer, by any copy18 right owner or copyright owner’s authorized licensee, or

19 by the service provider, who is injured by such misrepre20 sentation, as the result of the service provider relying upon

21 such misrepresentation in removing or disabling access to

22 the material or activity claimed to be infringing, or in re23 placing the removed material or ceasing to disable access

24 to it.
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1 ‘‘(f) REPLACEMENT OF REMOVED OR DISABLED MA2 TERIAL AND LIMITATION ON OTHER LIABILITY.—

3 ‘‘(1) Subject to paragraph (2) of this sub4 section, a service provider shall not be liable to any

5 person for any claim based on the service provider’s

6 good faith disabling of access to, or removal of, ma7 terial or activity claimed to be infringing or based on

8 facts or circumstances from which infringing activity

9 is apparent, regardless of whether the material or

10 activity is ultimately determined to be infringing.

11 ‘‘(2) Paragraph (1) of this subsection shall not

12 apply with respect to material residing at the direc13 tion of a subscriber of the service provider on a sys14 tem or network controlled or operated by or for the

15 service provider that is removed, or to which access

16 is disabled by the service provider pursuant to a no17 tice provided under subsection (c)(1)(C), unless the

18 service provider—

19 ‘‘(A) takes reasonable steps promptly to

20 notify the subscriber that it has removed or dis21 abled access to the material;

22 ‘‘(B) upon receipt of a counter notice as

23 described in paragraph (3), promptly provides

24 the person who provided the notice under sub25 section (c)(1)(C) with a copy of the counter no-
40

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1 tice, and informs such person that it will re2 place the removed material or cease disabling

3 access to it in ten business days; and

4 ‘‘(C) replaces the removed material and

5 ceases disabling access to it not less than 10,

6 nor more than 14, business days following re7 ceipt of the counter notice, unless its designated

8 agent first receives notice from the person who

9 submitted the notification under subsection

10 (c)(1)(C) that such person has filed an action

11 seeking a court order to restrain the subscriber

12 from engaging in infringing activity relating to

13 the material on the service provider’s system or

14 network.

15 ‘‘(3) To be effective under this subsection, a

16 counter notification means any written communica17 tion provided to the service provider’s designated

18 agent that includes substantially the following:

19 ‘‘(A) A physical or electronic signature of

20 the subscriber.

21 ‘‘(B) Identification of the material that has

22 been removed or to which access has been dis23 abled and the location at which such material

24 appeared before it was removed or access was

25 disabled.
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1 ‘‘(C) A statement under penalty of perjury

2 that the subscriber has a good faith belief that

3 the material was removed or disabled as a re4 sult of mistake or misidentification of the mate5 rial to be removed or disabled.

6 ‘‘(D) The subscriber’s name, address and

7 telephone number, and a statement that the

8 subscriber consents to the jurisdiction of Fed9 eral Court for the judicial district in which the

10 address is located, or if the subscriber’s address

11 is outside of the United States, for any judicial

12 district in which the service provider may be

13 found, and that the subscriber will accept serv14 ice of process from the person who provided no15 tice under subsection (c)(1)(C) or agent of such

16 person.

17 ‘‘(4) A service provider’s compliance with para18 graph (2) shall not subject the service provider to li19 ability for copyright infringement with respect to the

20 material identified in the notice provided under sub21 section (c)(1)(C).

22 ‘‘(g) IDENTIFICATION OF DIRECT INFRINGER.—The

23 copyright owner or a person authorized to act on the own24 er’s behalf may request an order for release of identifica25 tion of an alleged infringer by filing—
42

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1 (1) a copy of a notification described in sub2 section (c)(3)(A), including a proposed order, and

3 (2) a sworn declaration that the purpose of the

4 order is to obtain the identity of an alleged infringer

5 and that such information will only be used for the

6 purpose of this title, with the clerk of any United

7 States district court.

8 The order shall authorize and order the service provider

9 receiving the notification to disclose expeditiously to the

10 copyright owner or person authorized by the copyright

11 owner information sufficient to identify the alleged direct

12 infringer of the material described in the notification to

13 the extent such information is available to the service pro14 vider. The order shall be expeditiously issued if the accom15 panying notification satisfies the provisions of subsection

16 (c)(3)(A) and the accompanying declaration is properly ex17 ecuted. Upon receipt of the order, either accompanying or

18 subsequent to the receipt of a notification described in

19 subsection (c)(3)(A), a service provider shall expeditiously

20 give to the copyright owner or person authorized by the

21 copyright owner the information required by the order,

22 notwithstanding any other provision of law and regardless

23 of whether the service provider responds to the notifica24 tion.

25 ‘‘(h) CONDITIONS FOR ELIGIBILITY.—
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1 ‘‘(1) ACCOMMODATION OF TECHNOLOGY.—The

2 limitations on liability established by this section

3 shall apply only if the service provider—

4 ‘‘(A) has adopted and reasonably imple5 mented, and informs subscribers of the service

6 of, a policy for the termination of subscribers of

7 the service who are repeat infringers; and

8 ‘‘(B) accommodates and does not interfere

9 with standard technical measures as defined in

10 this subsection.

11 ‘‘(2) DEFINITION.—As used in this section,

12 ‘standard technical measures’ are technical meas13 ures, used by copyright owners to identify or protect

14 copyrighted works, that—

15 ‘‘(A) have been developed pursuant to a

16 broad consensus of copyright owners and serv17 ice providers in an open, fair, voluntary, multi18 industry standards process;

19 ‘‘(B) are available to any person on rea20 sonable and nondiscriminatory terms; and

21 ‘‘(C) do not impose substantial costs on

22 service providers or substantial burdens on their

23 systems or networks.

24 ‘‘(i) INJUNCTIONS.—The following rules shall apply

25 in the case of any application for an injunction under sec-
44

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1 tion 502 against a service provider that is not subject to

2 monetary remedies by operation of this section.

3 ‘‘(1) SCOPE OF RELIEF.—

4 ‘‘(A) With respect to conduct other than

5 that which qualifies for the limitation on rem6 edies as set forth in subsection (a), the court

7 may only grant injunctive relief with respect to

8 a service provider in one or more of the follow9 ing forms—

10 ‘‘(i) an order restraining it from pro11 viding access to infringing material or ac12 tivity residing at a particular online site on

13 the provider’s system or network;

14 ‘‘(ii) an order restraining it from pro15 viding access to an identified subscriber of

16 the service provider’s system or network

17 who is engaging in infringing activity by

18 terminating the specified accounts of such

19 subscriber; or

20 ‘‘(iii) such other injunctive remedies

21 as the court may consider necessary to pre22 vent or restrain infringement of specified

23 copyrighted material at a particular online

24 location: Provided, That such remedies are

25 the least burdensome to the service pro-
45

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1 vider that are comparably effective for that

2 purpose.

3 ‘‘(B) If the service provider qualifies for

4 the limitation on remedies described in sub5 section (a), the court may only grant injunctive

6 relief in one or both of the following forms—

7 ‘‘(i) an order restraining it from pro8 viding access to an identified subscriber of

9 the service provider’s system or network

10 who is using the provider’s service to en11 gage in infringing activity by terminating

12 the specified accounts of such subscriber;

13 or

14 ‘‘(ii) an order restraining it from pro15 viding access, by taking specified reason16 able steps to block access, to a specific,

17 identified, foreign online location.

18 ‘‘(2) CONSIDERATIONS.—The court, in consid19 ering the relevant criteria for injunctive relief under

20 applicable law, shall consider—

21 ‘‘(A) whether such an injunction, either

22 alone or in combination with other such injunc23 tions issued against the same service provider

24 under this subsection, would significantly bur-
46

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1 den either the provider or the operation of the

2 provider’s system or network;

3 ‘‘(B) the magnitude of the harm likely to

4 be suffered by the copyright owner in the digi5 tal network environment if steps are not taken

6 to prevent or restrain the infringement;

7 ‘‘(C) whether implementation of such an

8 injunction would be technically feasible and ef9 fective, and would not interfere with access to

10 noninfringing material at other online locations;

11 and

12 ‘‘(D) whether other less burdensome and

13 comparably effective means of preventing or re14 straining access to the infringing material are

15 available.

16 ‘‘(3) NOTICE AND EX PARTE ORDERS.—Injunc17 tive relief under this subsection shall not be available

18 without notice to the service provider and an oppor19 tunity for such provider to appear, except for orders

20 ensuring the preservation of evidence or other orders

21 having no material adverse effect on the operation of

22 the service provider’s communications network.

23 ‘‘(j) DEFINITIONS.—

24 ‘‘(1)(A) As used in subsection (a), the term

25 ‘service provider’ means an entity offering the trans-
47

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1 mission, routing or providing of connections for digi2 tal online communications, between or among points

3 specified by a user, of material of the user’s choos4 ing, without modification to the content of the mate5 rial as sent or received.

6 ‘‘(B) As used in any other subsection of this

7 section, the term ‘service provider’ means a provider

8 of online services or network access, or the operator

9 of facilities therefor, and includes an entity de10 scribed in the preceding paragraph of this sub11 section.

12 ‘‘(2) As used in this section, the term ‘monetary

13 relief’ means damages, costs, attorneys’ fees, and

14 any other form of monetary payment.

15 ‘‘(k) OTHER DEFENSES NOT AFFECTED.—The fail16 ure of a service provider’s conduct to qualify for limitation

17 of liability under this section shall not bear adversely upon

18 the consideration of a defense by the service provider that

19 the service provider’s conduct is not infringing under this

20 title or any other defense.

21 ‘‘(l) PROTECTION OF PRIVACY.—Nothing in this sec22 tion shall be construed to condition the applicability of

23 subsections (a) through (d) on—

24 ‘‘(1) a service provider monitoring its service or

25 affirmatively seeking facts indicating infringing ac-
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1 tivity except to the extent consistent with a standard

2 technical measure complying with the provisions of

3 subsection (h); or

4 ‘‘(2) a service provider accessing, removing, or

5 disabling access to material where such conduct is

6 prohibited by law.

7 ‘‘(m) RULE OF CONSTRUCTION.—Subsections (a),

8 (b), (c), and (d) are intended to describe separate and dis9 tinct functions for purposes of analysis under this section.

10 Whether a service provider qualifies for the limitation on

11 liability in any one such subsection shall be based solely

12 on the criteria in each such subsection and shall not affect

13 a determination of whether such service provider qualifies

14 for the limitations on liability under any other such sub15 section.’’.

16 SEC. 203. CONFORMING AMENDMENT.

17 The table of sections for chapter 5 of title 17, United

18 States Code, is amended by adding at the end the follow19 ing:

‘‘512. Liability of service providers for online infringement of copyright.’’.

20 SEC. 204. LIABILITY OF EDUCATIONAL INSTITUTIONS FOR

21 ONLINE INFRINGEMENT OF COPYRIGHT.

22 (a) Not later than six months after the date of enact23 ment of this Act, the Register of Copyrights, after con24 sultation with representatives of copyright owners and

25 nonprofit educational institutions, shall submit to the Con-
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1 gress recommendations regarding the liability of nonprofit

2 educational institutions for copyright infringement com3 mitted with the use of computer systems for which such

4 an institution is a service provider, as that term is defined

5 in section 512 of title 17, United States Code, (as amend6 ed by this Act), including recommendations for legislation

7 the Register of Copyrights considers appropriate regard8 ing such liability, if any.

9 (b) In formulating recommendations, the Register of

10 Copyrights shall consider, where relevant—

11 (1) current law regarding the direct, vicarious,

12 and contributory liability of nonprofit educational in13 stitutions for infringement by faculty, administrative

14 employees, students, graduate students, and stu15 dents who are employees of a nonprofit educational

16 institution;

17 (2) other users of their computer systems for

18 whom nonprofit educational institutions may be re19 sponsible;

20 (3) the unique nature of the relationship be21 tween nonprofit educational institutions and faculty;

22 (4) what policies nonprofit educational institu23 tions should adopt regarding copyright infringement

24 by users of their computer systems;
50

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1 (5) what technological measures are available to

2 monitor infringing uses;

3 (6) what monitoring of their computer systems

4 by nonprofit educational institutions is appropriate;

5 (7) what due process nonprofit educational in6 stitutions should afford in disabling access by users

7 of their computer systems who are alleged to have

8 committed copyright infringement;

9 (8) what distinctions, if any, should be drawn

10 between computer systems which may be accessed

11 from outside the nonprofit educational systems,

12 those which may not, and combinations thereof;

13 (9) the tradition of academic freedom; and

14 (10) such other issues relating to the liability of

15 nonprofit educational institutions for copyright in16 fringement committed with the use of computer sys17 tems for which such an institution is a service pro18 vider that the Register considers appropriate.

19 SEC. 205. EFFECTIVE DATE.

20 This title and the amendments made by this title

21 shall take effect on the date of the enactment of this Act.
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1 TITLE III—COMPUTER

2 MAINTENANCE OR REPAIR

3 SEC. 301. LIMITATION ON EXCLUSIVE RIGHTS; COMPUTER

4 PROGRAMS.

5 Section 117 of title 17, United States Code, is

6 amended—

7 (1) by striking ‘‘Notwithstanding’’ and insert8 ing the following:

9 ‘‘(a) MAKING OF ADDITIONAL COPY OR ADAPTATION

10 BY OWNER OF COPY.—Notwithstanding’’;

11 (2) by striking ‘‘Any exact’’ and inserting the

12 following:

13 ‘‘(b) LEASE, SALE, OR OTHER TRANSFER OF ADDI14 TIONAL COPY OR ADAPTATION.—Any exact’’; and

15 (3) by adding at the end the following new sub16 sections:

17 ‘‘(c) MACHINE MAINTENANCE OR REPAIR.—Notwith18 standing the provisions of section 106, it is not an in19 fringement for an owner or lessee of a machine to make

20 or authorize the making of a copy of a computer program

21 if such copy is made solely by virtue of the activation of

22 a machine that lawfully contains an authorized copy of

23 the computer program, for purposes only of maintenance

24 or repair of that machine, if—
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1 ‘‘(1) such new copy is used in no other manner

2 and is destroyed immediately after the maintenance

3 or repair is completed; and

4 ‘‘(2) with respect to any computer program or

5 part thereof that is not necessary for that machine

6 to be activated, such program or part thereof is not

7 accessed or used other than to make such new copy

8 by virtue of the activation of the machine.

9 ‘‘(d) DEFINITIONS.—For purposes of this section—

10 ‘‘(1) the ‘maintenance’ of a machine is the serv11 icing of the machine in order to make it work in ac12 cordance with its original specifications and any

13 changes to those specifications authorized for that

14 machine; and

15 ‘‘(2) the ‘repair’ of a machine is the restoring

16 of the machine to the state of working in accordance

17 with its original specifications and any changes to

18 those specifications authorized for that machine.’’.

19 TITLE IV—EPHEMERAL RECORD20 INGS; DISTANCE EDUCATION;

21 EXEMPTION FOR LIBRARIES

22 AND ARCHIVES

23 SEC. 401. EPHEMERAL RECORDINGS.

24 Section 112 of title 17, United States Code, is

25 amended by—
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1 (1) redesignating section 112(a) as 112(a)(1),

2 and renumbering sections 112(a) (1), (2), and (3) as

3 sections 112(a)(1) (A), (B), and (C), respectively;

4 (2) in section 112(a)(1), after the reference to

5 section 114(a), add the words ‘‘or for a transmitting

6 organization that is a broadcast radio or television

7 station licensed as such by the Federal Communica8 tions Commission that broadcasts a performance of

9 a sound recording in a digital format on a non10 subscription basis,’’;

11 (3) adding new section 112(a)(2) as follows:

12 ‘‘(2) Where a transmitting organization entitled to

13 make a copy or phonorecord under section 112(a)(1) in

14 connection with the transmission to the public of a per15 formance or display of a work pursuant to that section

16 is prevented from making such copy or phonorecord by

17 reason of the application by the copyright owner of tech18 nical measures that prevent the reproduction of the work,

19 such copyright owner shall make available to the transmit20 ting organization the necessary means for permitting the

21 making of such copy or phonorecord within the meaning

22 of that section: Provided, That it is technologically feasible

23 and economically reasonable for the copyright owner to do

24 so, and: Provided further, That, if such copyright owner

25 fails to do so in a timely manner in light of the transmit-
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1 ting organization’s reasonable business requirements, the

2 transmitting organization shall not be liable for a violation

3 of section 1201(a)(1) of this title for engaging in such ac4 tivities as are necessary to make such copies or

5 phonorecords as permitted under section 112(a)(1).’’.

6 SEC. 402. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE

7 EDUCATION.

8 (a) Not later than six months after the date of enact9 ment of this Act, the Register of Copyrights, after con10 sultation with representatives of copyright owners, non11 profit educational institutions and nonprofit libraries and

12 archives, shall submit to the Congress recommendations

13 on how to promote distance education through digital

14 technologies, including interactive digital networks, while

15 maintaining an appropriate balance between the rights of

16 copyright owners and the needs of users. Such rec17 ommendations shall include any legislation the Register of

18 Copyrights considers appropriate to achieve the foregoing

19 objective.

20 (b) In formulating recommendations, the Register of

21 Copyrights shall consider—

22 (1) the need for an exemption from exclusive

23 rights for distance education through digital net24 works;
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1 (2) the categories of works to be included under

2 any distance education exemption;

3 (3) the extent of appropriate quantitative limi4 tations on the portions of works that may be used

5 under any distance education exemption;

6 (4) the parties who should be entitled to the

7 benefits of any distance education exemption;

8 (5) the parties who should be designated as eli9 gible recipients of distance education materials

10 under any distance education exemption;

11 (6) whether and what types of technological

12 measures can and/or should be employed to safe13 guard against unauthorized access to, and use or re14 tention of, copyrighted materials as a condition to

15 eligibility for any distance education exemption, in16 cluding, in light of developing technological capabili17 ties, the exemption set out in section 110(2);

18 (7) the extent to which the availability of li19 censes for the use of copyrighted works in distance

20 education through interactive digital networks

21 should be considered in assessing eligibility for any

22 distance education exemption; and

23 (8) such other issues relating to distance edu24 cation through interactive digital networks that the

25 Register considers appropriate.
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1 SEC. 403. EXEMPTION FOR LIBRARIES AND ARCHIVES.

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

3 amended—

4 (1) in subsection (a) by—

5 (A) striking ‘‘Notwithstanding’’ and insert6 ing ‘‘Except as otherwise provided and notwith7 standing’’;

8 (B) inserting after ‘‘no more than one copy

9 of phonorecord of a work’’ the following: ‘‘ex10 cept as provided in subsections (b) and (c),’’;

11 and

12 (C) by inserting after ‘‘copyright’’ in para13 graph (3) the following: ‘‘if such notice appears

14 on the copy or phonorecord that is reproduced

15 under the provisions of this section, or a legend

16 stating that the work may be protected by copy17 right if no such notice can be found on the copy

18 or phonorecord that is reproduced under the

19 provisions of this section’’;

20 (2) in subsection (b) by—

21 (A) striking ‘‘a copy or phonorecord’’ and

22 inserting in lieu thereof ‘‘three copies or

23 phonorecords’’;

24 (B) striking ‘‘in facsimile form’’; and

25 (C) striking ‘‘if the copy or phonorecord

26 reproduced is currently in the collections of the
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1 library or archives.’’ and inserting in lieu there2 of ‘‘if—

3 ‘‘(1) the copy or phonorecord reproduced is cur4 rently in the collections of the library or archives;

5 and

6 ‘‘(2) any such copy or phonorecord that is re7 produced in digital format is not otherwise distrib8 uted in that format and is not made available to the

9 public outside the premises of the library or archives

10 in that format.’’; and

11 (3) in subsection (c) by—

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

13 inserting in lieu thereof ‘‘three copies or

14 phonorecords’’;

15 (B) striking ‘‘in facsimile form’’;

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

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

18 after ‘‘stolen,’’; and

19 (D) striking ‘‘if the library or archives has,

20 after a reasonable effort, determined that an

21 unused replacement cannot be obtained at a

22 fair price.’’ and inserting in lieu thereof ‘‘if—

23 ‘‘(1) the library or archives has, after a reason24 able effort, determined that an unused replacement

25 cannot be obtained at a fair price; and
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1 ‘‘(2) any such copy or phonorecord that is re2 produced in digital format is not made available to

3 the public in that format except for use on the prem4 ises of the library or archives in lawful possession of

5 such copy.’’;

6 (E) adding at the end the following: ‘‘For

7 purposes of this subsection, a format shall be

8 considered obsolete if the machine or device

9 necessary to render perceptible a work stored in

10 that format is no longer manufactured or is no

11 longer reasonably available in the commercial

12 marketplace.’’.

Passed the Senate May 14, 1998.

Attest:

Secretary.
105TH CONGRESS

2D SESSION S. 2037

AN ACT

To amend title 17, United States Code, to implematerial online, and for other purposes. vide limitations on copyright liability relating to Performances and Phonograms Treaty, to pro- ment the WIPO Copyright Treaty and the WIPO
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