Calendar No. 358

105TH CONGRESS

2D SESSION S. 2037

A BILL

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

MAY 6, 1998

Read twice and placed on the calendar
II

Calendar No. 358

105TH CONGRESS

2D SESSION S. 2037

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.

IN THE SENATE OF THE UNITED STATES

MAY 6, 1998

Mr. HATCH, from the Committee on the Judiciary, reported the following

original bill; which was read twice and placed on the calendar

A BILL

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—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 subsection (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 subsection (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 subsection (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 section (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 section (b)(1), by deleting ‘‘foreign nation

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

20 United States is also a party’’ and inserting ‘‘treaty

21 party’’;

22 (2) in section (b)(2) by deleting ‘‘party to the

23 Universal Copyright Convention’’ and inserting

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

2 as (b)(5) and moving it to its proper sequential loca3 tion and inserting a new section (b)(3) to read:

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

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

6 (4) in section (b)(4) by deleting ‘‘Berne Con7 vention work’’ and inserting ‘‘pictorial, graphic or

8 sculptural work that is incorporated in a building or

9 other structure, or an architectural work that is em10 bodied in a building and the building or structure is

11 located in the United States or a treaty party’’;

12 (5) by renumbering present section (b)(5) as

13 (b)(6);

14 (6) by inserting a new section (b)(7) to read:

15 ‘‘(7) For purposes of paragraph (2), a work

16 that is published in the United States or a treaty

17 party within thirty days of publication in a foreign

18 nation that is not a treaty party shall be considered

19 first published in the United States or such treaty

20 party as the case may be.’’; and

21 (7) by inserting a new section (d) to read:

22 ‘‘(d) EFFECT OF PHONOGRAMS TREATIES.—Not23 withstanding the provisions of subsection (b), no works

24 other than sound recordings shall be eligible for protection

25 under this title solely by virtue of the adherence of the
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1 United States to the Geneva Phonograms Convention or

2 the WIPO Performances and Phonograms Treaty.’’.

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

4 is amended—

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

6 adhering to the Berne Convention or a WTO mem7 ber country; or (B) subject to a Presidential procla8 mation under subsection (g),’’ and inserting—

9 ‘‘(A) a nation adhering to the Berne Con10 vention;

11 ‘‘(B) a WTO member country;

12 ‘‘(C) a nation adhering to the WIPO Copy13 right Treaty;

14 ‘‘(D) a nation adhering to the WIPO Per15 formances and Phonograms Treaty; or

16 ‘‘(E) subject to a Presidential proclamation

17 under subsection (g)’’;

18 (2) paragraph (3) is amended to read as fol19 lows:

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

21 other than the United States that—

22 ‘‘(A) becomes a WTO member country

23 after the date of enactment of the Uruguay

24 Round Agreements Act;
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1 ‘‘(B) on the date of enactment is, or after

2 the date of enactment becomes, a nation adher3 ing to the Berne Convention;

4 ‘‘(C) adheres to the WIPO Copyright

5 Treaty;

6 ‘‘(D) adheres to the WIPO Performances

7 and Phonograms Treaty; or

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

9 subject to a proclamation under subsection

10 (g).’’;

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

12 after ‘‘eligibility’’;

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

14 the period and inserting ‘‘; and’’;

15 (5) by adding the following new paragraph

16 (6)(E):

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

18 an eligible country solely by virtue of its adher19 ence to the WIPO Performances and

20 Phonograms Treaty, is a sound recording.’’;

21 (6) in paragraph (8)(B)(i), by inserting ‘‘of

22 which’’ before ‘‘the majority’’ and striking ‘‘of eligi23 ble countries’’; and

24 (7) by deleting paragraph (9).
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1 (d) Section 411 of title 17, United States Code, is

2 amended—

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

4 infringement of copyright in Berne Convention

5 works whose country of origin is not the United

6 States and’’; and

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

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

9 copyright in any’’.

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

11 is amended by adding at the beginning, ‘‘Except as ex12 pressly provided elsewhere in this title,’’.

13 SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPY14 RIGHT MANAGEMENT INFORMATION.

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

16 the following new chapter:

17 ‘‘CHAPTER 12—COPYRIGHT PROTECTION AND

18 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.

19 ‘‘§ 1201. Circumvention of copyright protection sys20 tems

21 ‘‘(a) VIOLATIONS REGARDING CIRCUMVENTION OF

22 TECHNOLOGICAL PROTECTION MEASURES.—(1) No per-
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1 son shall circumvent a technological protection measure

2 that effectively controls access to a work protected under

3 this title.

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

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

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

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

8 purpose of circumventing a technological protection

9 measure that effectively controls access to a work

10 protected under this title;

11 ‘‘(B) has only limited commercially significant

12 purpose or use other than to circumvent a techno13 logical protection measure that effectively controls

14 access to a work protected under this title; or

15 ‘‘(C) is marketed by that person or another act16 ing in concert with that person with that person’s

17 knowledge for use in circumventing a technological

18 protection measure that effectively controls access to

19 a work protected under this title.

20 ‘‘(3) As used in this subsection—

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

22 measure’ means to descramble a scrambled work, to

23 decrypt an encrypted work, or otherwise to avoid,

24 bypass, remove, deactivate, or impair a technological
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1 protection measure, without the authority of the

2 copyright owner; and

3 ‘‘(B) a technological protection measure ‘effec4 tively controls access to a work’ if the measure, in

5 the ordinary course of its operation, requires the ap6 plication of information, or a process or a treatment,

7 with the authority of the copyright owner, to gain

8 access to the work.

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

10 manufacture, import, offer to the public, provide, or other11 wise traffic in any technology, product, service, device,

12 component, or part thereof that—

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

14 purpose of circumventing protection afforded by a

15 technological protection measure that effectively pro16 tects a right of a copyright owner under this title in

17 a work or a portion thereof;

18 ‘‘(B) has only limited commercially significant

19 purpose or use other than to circumvent protection

20 afforded by a technological protection measure that

21 effectively protects a right of a copyright owner

22 under this title in a work or a portion thereof; or

23 ‘‘(C) is marketed by that person or another act24 ing in concert with that person with that person’s

25 knowledge for use in circumventing protection af-
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1 forded by a technological protection measure that ef2 fectively protects a right of a copyright owner under

3 this title in a work or a portion thereof.

4 ‘‘(2) As used in this subsection—

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

6 technological protection measure’ means avoiding,

7 bypassing, removing, deactivating, or otherwise im8 pairing a technological protection measure; and

9 ‘‘(B) a technological protection measure ‘effec10 tively protects a right of a copyright owner under

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

12 its operation, prevents, restricts, or otherwise limits

13 the exercise of a right of a copyright owner under

14 this title.

15 ‘‘(c) IMPORTATION.—The importation into the

16 United States, the sale for importation, or the sale within

17 the United States after importation by the owner, im18 porter, or consignee of any technology, product, service,

19 device, component, or part thereof as described in sub20 section (a) or (b) shall be actionable under section 337

21 of the Tariff Act of 1930 (19 U.S.C. 1337).

22 ‘‘(d) OTHER RIGHTS, ETC., NOT AFFECTED.—(1)

23 Nothing in this section shall affect rights, remedies, limi24 tations, or defenses to copyright infringement, including

25 fair use, under this title.
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1 ‘‘(2) Nothing in this section shall enlarge or diminish

2 vicarious or contributory liability for copyright infringe3 ment in connection with any technology, product, service,

4 device, component or part thereof.

5 ‘‘(3) Nothing in this section shall require that the de6 sign of, or design and selection of parts and components

7 for, a consumer electronics, telecommunications, or com8 puting product provide for a response to any particular

9 technological protection measure, so long as such part or

10 component or the product, in which such part or compo11 nent is integrated, does not otherwise fall within the prohi12 bitions of subsections (a)(2) or (b)(1).

13 ‘‘(e) EXEMPTION FOR NONPROFIT LIBRARIES, AR14 CHIVES, AND EDUCATIONAL INSTITUTIONS.—(1) A non15 profit library, archives, or educational institution which

16 gains access to a commercially exploited copyrighted work

17 solely in order to make a good faith determination of

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

19 of engaging in conduct permitted under this title shall not

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

21 which access has been gained under this paragraph—

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

23 to make such good faith determination; and

24 ‘‘(B) may not be used for any other purpose.
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1 ‘‘(2) The exemption made available under paragraph

2 (1) shall only apply with respect to a work when an iden3 tical copy of that work is not reasonably available in an4 other form.

5 ‘‘(3) A nonprofit library, archives, or educational in6 stitution that willfully for the purpose of commercial ad7 vantage or financial gain violates paragraph (1)—

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

9 the civil remedies under section 1203; and

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

11 in addition to the civil remedies under section 1203,

12 forfeit the exemption provided under paragraph (1).

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

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

15 subsection permit a nonprofit library, archives, or edu16 cational institution to manufacture, import, offer to the

17 public, provide, or otherwise traffic in any technology

18 which circumvents a technological protection measure.

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

20 the exemption under this subsection, the collections of that

21 library or archives shall be—

22 ‘‘(A) open to the public; or

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

24 with the library or archives or with the institution
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1 of which it is a part, but also to other persons doing

2 research in a specialized field.

3 ‘‘(f) LAW ENFORCEMENT AND INTELLIGENCE AC4 TIVITIES.—This section does not prohibit any lawfully au5 thorized investigative, protective, or intelligence activity of

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

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

8 acting pursuant to a contract with such entities.

9 ‘‘(g) Notwithstanding the provisions of subsection

10 1201(a)(1), a person who has lawfully obtained the right

11 to use a copy of a computer program may circumvent a

12 technological protection measure that effectively controls

13 access to a particular portion of that program for the sole

14 purpose of identifying and analyzing those elements of the

15 program that are necessary to achieve interoperability of

16 an independently created computer program with other

17 programs, and that have not previously been readily avail18 able to the person engaging in the circumvention, to the

19 extent any such acts of identification and analysis do not

20 constitute infringement under this title.

21 ‘‘(h) Notwithstanding the provisions of subsections

22 1201(a)(2) and (b), a person may develop and employ

23 technological means to circumvent for the identification

24 and analysis described in subsection (g), or for the limited

25 purpose of achieving interoperability of an independently
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1 created computer program with other programs, where

2 such means are necessary to achieve such interoperability,

3 to the extent that doing so does not constitute infringe4 ment under this title.

5 ‘‘(i) The information acquired through the acts per6 mitted under subsection (g), and the means permitted

7 under subsection (h), may be made available to others if

8 the person referred to in subsections (g) or (h) provides

9 such information or means solely for the purpose of

10 achieving interoperability of an independently created

11 computer program with other programs, and to the extent

12 that doing so does not constitute infringement under this

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

14 ‘‘(j) For purposes of subsections (g), (h) and (i), the

15 term ‘‘interoperability’’ means the ability of computer pro16 grams to exchange information, and for such programs

17 mutually to use the information which has been ex18 changed.

19 ‘‘(k) In applying subsection (a) to a component or

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

21 and actual incorporation in a technology, product, service

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

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

24 the access of minors to material on the Internet.’’
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1 ‘‘§ 1202. Integrity of copyright management informa2 tion

3 ‘‘(a) FALSE COPYRIGHT MANAGEMENT INFORMA4 TION.—No person shall knowingly—

5 ‘‘(1) provide copyright management information

6 that is false, or

7 ‘‘(2) distribute or import for distribution copy8 right management information that is false, with the

9 intent to induce, enable, facilitate or conceal in10 fringement.

11 ‘‘(b) REMOVAL OR ALTERATION OF COPYRIGHT

12 MANAGEMENT INFORMATION.—No person shall, without

13 the authority of the copyright owner or the law—

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

15 management information,

16 ‘‘(2) distribute or import for distribution copy17 right management information knowing that the

18 copyright management information has been re19 moved or altered without authority of the copyright

20 owner or the law, or

21 ‘‘(3) distribute, import for distribution, or pub22 licly perform works, copies of works, or

23 phonorecords, knowing that copyright management

24 information has been removed or altered without au25 thority of the copyright owner or the law, knowing,

26 or, with respect to civil remedies under section 1203,
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1 having reasonable grounds to know, that it will in2 duce, enable, facilitate or conceal an infringement of

3 any right under this title.

4 ‘‘(c) DEFINITION.—As used in this chapter, ‘copy5 right management information’ means the following infor6 mation conveyed in connection with copies or phonorecords

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

8 in digital form—

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

10 the work, including the information set forth on a

11 notice of copyright;

12 ‘‘(2) the name of, and other identifying infor13 mation about, the author of a work;

14 ‘‘(3) the name of, and other identifying infor15 mation about, the copyright owner of the work, in16 cluding the information set forth in a notice of copy17 right;

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

19 of works by radio and television broadcast stations

20 the name of, and other identifying information

21 about, a performer whose performance is fixed in a

22 work other than an audiovisual work;

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

24 of works by radio and television broadcast stations,

25 in the case of an audiovisual work, the name of, and
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1 other identifying information about, a writer, per2 former, or director who is credited in the audiovisual

3 work;

4 ‘‘(6) identifying numbers of symbols referring

5 to such information or links to such information; or

6 ‘‘(7) such other information as the Register of

7 Copyrights may prescribe by regulation, except that

8 the Register of Copyrights may not require the pro9 vision of any information concerning the user of a

10 copyrighted work.

11 ‘‘(d) LAW ENFORCEMENT AND INTELLIGENCE AC12 TIVITIES.—This section does not prohibit any lawfully au13 thorized investigative, protective, or intelligence activity of

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

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

16 acting pursuant to a contract with such entities.

17 ‘‘(e) LIMITATIONS ON LIABILITY.—

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

19 an analog transmission, a person who is making

20 transmissions in its capacity as a radio or television

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

22 who provides programming to such station or sys23 tem, shall not be liable for a violation of subsection

24 (b) if—
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1 ‘‘(A) avoiding the activity that constitutes

2 such violation is not technically feasible or

3 would create an undue financial hardship on

4 such person; and

5 ‘‘(B) such person did not intend, by engag6 ing in such activity, to induce, enable, facilitate

7 or conceal infringement.

8 ‘‘(2) DIGITAL TRANSMISSIONS.—

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

10 the placement of copyright management infor11 mation for a category of works is set in a vol12 untary, consensus standard-setting process in13 volving a representative cross-section of radio or

14 television broadcast stations or cable systems

15 and copyright owners of a category of works

16 that are intended for public performance by

17 such stations or systems, a person identified in

18 subsection (e)(1) shall not be liable for a viola19 tion of subsection (b) with respect to the par20 ticular copyright management information ad21 dressed by such standard if—

22 ‘‘(i) the placement of such information

23 by someone other than such person is not

24 in accordance with such standard; and
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1 ‘‘(ii) the activity that constitutes such

2 violation is not intended to induce, enable,

3 facilitate or conceal infringement.

4 ‘‘(B) Until a digital transmission standard

5 has been set pursuant to subparagraph (A) with

6 respect to the placement of copyright manage7 ment information for a category or works, a

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

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

10 respect to such copyright management informa11 tion, where the activity that constitutes such

12 violation is not intended to induce, enable, fa13 cilitate or conceal infringement, if—

14 ‘‘(i) the transmission of such informa15 tion by such person would result in a per16 ceptible visual or aural degradation of the

17 digital signal; or

18 ‘‘(ii) the transmission of such infor19 mation by such person would conflict

20 with—

21 ‘‘(I) an applicable government

22 regulation relating to transmission of

23 information in a digital signal;

24 ‘‘(II) an applicable industry-wide

25 standard relating to the transmission
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1 of information in a digital signal that

2 was adopted by a voluntary consensus

3 standards body prior to the effective

4 date of this section; or

5 ‘‘(III) an applicable industry-wide

6 standard relating to the transmission

7 of information in a digital signal that

8 was adopted in a voluntary, consensus

9 standards-setting process open to par10 ticipation by a representative cross11 section of radio or television broadcast

12 stations or cable systems and copy13 right owners of a category of works

14 that are intended for public perform15 ance by such stations or systems.

16 ‘‘§ 1203. Civil remedies

17 ‘‘(a) CIVIL ACTIONS.—Any person injured by a viola18 tion of section 1201 or 1202 may bring a civil action in

19 an appropriate United States district court for such viola20 tion.

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

22 under subsection (a), the court—

23 ‘‘(1) may grant temporary and permanent in24 junctions on such terms as it deems reasonable to

25 prevent or restrain a violation;
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1 ‘‘(2) at any time while an action is pending,

2 may order the impounding, on such terms as it

3 deems reasonable, of any device or product that is

4 in the custody or control of the alleged violator and

5 that the court has reasonable cause to believe was

6 involved in a violation;

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

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

9 costs by or against any party other than the United

10 States or an officer thereof;

11 ‘‘(5) in its discretion may award reasonable at12 torney’s fees to the prevailing party; and

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

14 finding a violation, order the remedial modification

15 or the destruction of any device or product involved

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

17 the violator or has been impounded under paragraph

18 (2).

19 ‘‘(c) AWARD OF DAMAGES.—

20 ‘‘(1) IN GENERAL.—Except as otherwise pro21 vided in this chapter, a person committing a viola22 tion of section 1201 or 1202 is liable for either—

23 ‘‘(A) the actual damages and any addi24 tional profits of the violator, as provided in

25 paragraph (2), or
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1 ‘‘(B) statutory damages, as provided in

2 paragraph (3).

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

4 award to the complaining party the actual damages

5 suffered by the party as a result of the violation,

6 and any profits of the violator that are attributable

7 to the violation and are not taken into account in

8 computing the actual damages, if the complaining

9 party elects such damages at any time before final

10 judgment is entered.

11 ‘‘(3) STATUTORY DAMAGES.—

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

13 entered, a complaining party may elect to re14 cover an award of statutory damages for each

15 violation of section 1201 in the sum of not less

16 than $200 or more than $2,500 per act of cir17 cumvention, device, product, component, offer,

18 or performance of service, as the court consid19 ers just.

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

21 entered, a complaining party may elect to re22 cover an award of statutory damages for each

23 violation of section 1202 in the sum of not less

24 than $2,500 or more than $25,000.
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1 ‘‘(4) REPEATED VIOLATIONS.—In any case in

2 which the injured party sustains the burden of prov3 ing, and the court finds, that a person has violated

4 section 1201 or 1202 within three years after a final

5 judgment was entered against the person for another

6 such violation, the court may increase the award of

7 damages up to triple the amount that would other8 wise be awarded, as the court considers just.

9 ‘‘(5) INNOCENT VIOLATIONS.—

10 ‘‘(A) IN GENERAL.—The court in its dis11 cretion may reduce or remit the total award of

12 damages in any case in which the violator sus13 tains the burden of proving, and the court

14 finds, that the violator was not aware and had

15 no reason to believe that its acts constituted a

16 violation.

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

18 EDUCATIONAL INSTITUTIONS.—In the case of a

19 nonprofit library, archives, or educational insti20 tution, the court shall remit damages in any

21 case in which the library, archives, or edu22 cational institution sustains the burden of prov23 ing, and the court finds, that the library, ar24 chives, or educational institution was not aware
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1 and had no reason to believe that its acts con2 stituted a violation.

3 ‘‘§ 1204. Criminal offenses and penalties

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

5 1201 or 1202 willfully and for purposes of commercial ad6 vantage or private financial gain—

7 ‘‘(1) shall be fined not more than $500,000 or

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

9 the first offense; and

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

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

12 any subsequent offense.

13 ‘‘(b) LIMITATION FOR NONPROFIT LIBRARY, AR14 CHIVES, OR EDUCATIONAL INSTITUTION.—Subsection (a)

15 shall not apply to a nonprofit library, archives, or edu16 cational institution.

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

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

19 be brought under this section unless such proceeding is

20 commenced within five years after the cause of action

21 arose.’’.

22 ‘‘§ 1205. Savings Clause

23 ‘‘Nothing in this chapter abrogates, diminishes or

24 weakens the provisions of, nor provides any defense or ele25 ment of mitigation in a criminal prosecution or civil action
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1 under, any federal or state law that prevents the violation

2 of the privacy of an individual in connection with the indi3 vidual’s use of the Internet.’’.

4 SEC. 104. CONFORMING AMENDMENT.

5 The table of chapters for Title 17, United States

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

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

7 SEC. 105. EFFECTIVE DATE.

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

9 amendments made by this title shall take effect on the

10 date of the enactment of this Act.

11 (b) AMENDMENTS RELATING TO CERTAIN INTER12 NATIONAL AGREEMENTS.—(1) The following shall take ef13 fect upon entry into force of the WIPO Copyright Treaty

14 with respect to the United States:

15 (A) paragraph (5) of the definition of ‘‘inter16 national agreement’’ contained in section 101 of title

17 17, United States Code, as amended by section

18 102(a)(8) of this title.

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

20 of this title;

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

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

23 102(c)(1) of this title; and
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1 (D) subparagraph (C) of section 104A(h)(3) of

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

3 102(c)(2) of this title.

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

5 force of the WIPO Performances and Phonograms Treaty

6 with respect to the United States:

7 (A) paragraph (6) of the definition of ‘‘inter8 national agreement’’ contained in section 101 of title

9 17, United States Code, as amended by section

10 102(a)(8) of this title.

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

12 of this title;

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

14 of this title;

15 (D) Subparagraph (D) of section 104A(h)(1) of

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

17 102(c)(2) of this title; and

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

19 of this title; and

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

21 of this title.
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1 TITLE II—INTERNET COPYRIGHT

2 INFRINGEMENT LIABILITY

3 SEC. 201. SHORT TITLE.

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

5 Infringement Liability Clarification Act of 1998’’.

6 SEC. 202. LIMITATIONS ON LIABILITY FOR INTERNET COPY7 RIGHT INFRINGEMENT.

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

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

10 following new section:

11 ‘‘§ 512. Liability of service providers for online in12 fringement of copyright

13 ‘‘(a) DIGITAL NETWORK COMMUNICATIONS.—A serv14 ice provider shall not be liable for monetary relief, or ex15 cept as provided in subsection (i) for injunctive or other

16 equitable relief, for infringement for the provider’s trans17 mitting, routing, or providing connections for, material

18 through a system or network controlled or operated by or

19 for the service provider, or the intermediate and transient

20 storage of such material in the course of such transmit21 ting, routing or providing connections, if—

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

23 person other than the service provider;
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1 ‘‘(2) it is carried out through an automatic

2 technical process without selection of such material

3 by the service provider;

4 ‘‘(3) the service provider does not select the re5 cipients of such material except as an automatic re6 sponse to the request of another;

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

8 service provider is maintained on the system or net9 work in a manner ordinarily accessible to anyone

10 other than anticipated recipients, and no such copy

11 is maintained on the system or network in a manner

12 ordinarily accessible to the anticipated recipients for

13 a longer period than is reasonably necessary for the

14 communication; and

15 ‘‘(5) the material is transmitted without modi16 fication to its content.

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

18 be liable for monetary relief, or except as provided in sub19 section (i) for injunctive or other equitable relief, for in20 fringement for the intermediate and temporary storage of

21 material on the system or network controlled or operated

22 by or for the service provider, where (i) such material is

23 made available online by a person other than such service

24 provider, (ii) such material is transmitted from the person

25 described in clause (i) through such system or network
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1 to someone other than that person at the direction of such

2 other person, and (iii) the storage is carried out through

3 an automatic technical process for the purpose of making

4 such material available to users of such system or network

5 who subsequently request access to that material from the

6 person described in clause (i), provided that:

7 ‘‘(1) such material is transmitted to such subse8 quent users without modification to its content from

9 the manner in which the material otherwise was

10 transmitted from the person described in clause (i);

11 ‘‘(2) such service provider complies with rules

12 concerning the refreshing, reloading or other updat13 ing of such material when specified by the person

14 making that material available online in accordance

15 with an accepted industry standard data commu16 nications protocol for the system or network through

17 which that person makes the material available; pro18 vided that the rules are not used by the person de19 scribed in clause (i) to prevent or unreasonably im20 pair such intermediate storage;

21 ‘‘(3) such service provider does not interfere

22 with the ability of technology associated with such

23 material that returns to the person described in

24 clause (i) the information that would have been

25 available to such person if such material had been
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1 obtained by such subsequent users directly from

2 such person, provided that such technology—

3 ‘‘(A) does not significantly interfere with

4 the performance of the provider’s system or

5 network or with the intermediate storage of the

6 material;

7 ‘‘(B) is consistent with accepted industry

8 standard communications protocols; and

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

10 provider’s system or network other than the in11 formation that would have been available to

12 such person if such material had been accessed

13 by such users directly from such person;

14 ‘‘(4) either—

15 ‘‘(A) the person described in clause (i)

16 does not currently condition access to such ma17 terial; or

18 ‘‘(B) if access to such material is so condi19 tioned by such person, by a current individual

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

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

22 other information, the service provider permits

23 access to the stored material in significant part

24 only to users of its system or network that have
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1 been so authorized and only in accordance with

2 those conditions; and

3 ‘‘(5) if the person described in clause (i) makes

4 that material available online without the authoriza5 tion of the copyright owner, then the service provider

6 responds expeditiously to remove, or disable access

7 to, the material that is claimed to be infringing upon

8 notification of claimed infringements described in

9 subsection (c)(3); provided that the material has

10 previously been removed from the originating site,

11 and the party giving the notification includes in the

12 notification a statement confirming that such mate13 rial has been removed or access to it has been dis14 abled or ordered to be removed or have access dis15 abled.

16 ‘‘(c) INFORMATION STORED ON SERVICE PROVID17 ERS.—

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

19 be liable for monetary relief, or except as provided

20 in subsection (i) for injunctive or other equitable re21 lief, for infringement for the storage at the direction

22 of a user of material that resides on a system or net23 work controlled or operated by or for the service pro24 vider, if the service provider—
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1 ‘‘(A)(i) does not have actual knowledge

2 that the material or activity is infringing,

3 ‘‘(ii) in the absence of such actual knowl4 edge, is not aware of facts or circumstances

5 from which infringing activity is apparent, or

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

7 awareness, the service provider acts expedi8 tiously to remove or disable access to, the mate9 rial;

10 ‘‘(B) does not receive a financial benefit di11 rectly attributable to the infringing activity,

12 where the service provider has the right and

13 ability to control such activity; and

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

15 claimed infringement as described in paragraph

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

17 access to, the material that is claimed to be in18 fringing or to be the subject of infringing activ19 ity.

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

21 liability established in this subsection apply only if

22 the service provider has designated an agent to re23 ceive notifications of claimed infringement described

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

25 address, phone number, electronic mail address of
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1 such agent, and other contact information deemed

2 appropriate by the Register of Copyrights, available

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

4 providing such information to the Copyright Office.

5 The Register of Copyrights shall maintain a current

6 directory of agents available to the public for inspec7 tion, including through the Internet, in both elec8 tronic and hard copy formats.

9 ‘‘(3) ELEMENTS OF NOTIFICATION.—

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

11 a notification of claimed infringement means

12 any written communication provided to the

13 service provider’s designated agent that includes

14 substantially the following:

15 ‘‘(i) a physical or electronic signature

16 of a person authorized to act on behalf of

17 the owner of an exclusive right that is al18 legedly infringed;

19 ‘‘(ii) identification of the copyrighted

20 work claimed to have been infringed, or, if

21 multiple such works at a single online site

22 are covered by a single notification, a rep23 resentative list of such works at that site;

24 ‘‘(iii) identification of the material

25 that is claimed to be infringing or to be
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1 the subject of infringing activity that is to

2 be removed or access to which is to be dis3 abled, and information reasonably suffi4 cient to permit the service provider to lo5 cate the material;

6 ‘‘(iv) information reasonably sufficient

7 to permit the service provider to contact

8 the complaining party, such as an address,

9 telephone number, and, if available an elec10 tronic mail address at which the complain11 ing party may be contacted;

12 ‘‘(v) a statement that the complaining

13 party has a good faith belief that use of

14 the material in the manner complained of

15 is not authorized by the copyright owner,

16 or its agent, or the law; and

17 ‘‘(vi) a statement that the information

18 in the notification is accurate, and under

19 penalty of perjury, that the complaining

20 party has the authority to enforce the own21 er’s rights that are claimed to be infringed.

22 ‘‘(B) A notification from the copyright

23 owner or from a person authorized to act on be24 half of the copyright owner that fails substan25 tially to conform to the provisions of paragraph
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1 (3)(A) shall not be considered under paragraph

2 (1)(A) in determining whether a service pro3 vider has actual knowledge or is aware of facts

4 or circumstances from which infringing activity

5 is apparent, provided that the provider prompt6 ly attempts to contact the complaining party or

7 takes other reasonable steps to assist in the re8 ceipt of notice under paragraph (3)(A) when

9 the notice is provided to the service provider’s

10 designated agent and substantially satisfies the

11 provisions of subparagraphs (3)(A)(ii), (iii), and

12 (iv).

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

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

15 as provided in subsection (i) for injunctive or other equi16 table relief, for infringement for the provider referring or

17 linking users to an online location containing infringing

18 material or activity by using information location tools, in19 cluding a directory, index, reference, pointer or hypertext

20 link, if the provider—

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

22 material or activity is infringing or, in the absence

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

24 circumstances from which infringing activity is ap25 parent;
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1 ‘‘(2) does not receive a financial benefit directly

2 attributable to the infringing activity, where the

3 service provider has the right and ability to control

4 such activity; and

5 ‘‘(3) responds expeditiously to remove or disable

6 the reference or link upon notification of claimed in7 fringement as described in subsection (c)(3); pro8 vided that for the purposes of this paragraph, the

9 element in subsection (c)(3)(A)(iii) shall be identi10 fication of the reference or link, to material or activ11 ity claimed to be infringing, that is to be removed

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

13 reasonably sufficient to permit the service provider

14 to locate such reference or link.

15 ‘‘(e) MISREPRESENTATIONS.—Any person who know16 ingly materially misrepresents under this section (1) that

17 material or activity is infringing, or (2) that material or

18 activity was removed or disabled by mistake or

19 misidentification, shall be liable for any damages, includ20 ing costs and attorneys’ fees, incurred by the alleged in21 fringer, by any copyright owner or copyright owner’s au22 thorized licensee, or by the service provider, who is injured

23 by such misrepresentation, as the result of the service pro24 vider relying upon such misrepresentation in removing or

25 disabling access to the material or activity claimed to be
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1 infringing, or in replacing the removed material or ceasing

2 to disable access to it.

3 ‘‘(f) REPLACEMENT OF REMOVED OR DISABLED MA4 TERIAL AND LIMITATION ON OTHER LIABILITY.—

5 ‘‘(1) Subject to paragraph (2) of this sub6 section, a service provider shall not be liable to any

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

8 good faith disabling of access to, or removal of, ma9 terial or activity claimed to be infringing or based on

10 facts or circumstances from which infringing activity

11 is apparent, regardless of whether the material or

12 activity is ultimately determined to be infringing.

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

14 apply with respect to material residing at the direc15 tion of a subscriber of the service provider on a sys16 tem or network controlled or operated by or for the

17 service provider that is removed, or to which access

18 is disabled by the service provider pursuant to a no19 tice provided under subsection (c)(1)(C), unless the

20 service provider—

21 ‘‘(A) takes reasonable steps promptly to

22 notify the subscriber that it has removed or dis23 abled access to the material;

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

25 described in paragraph (3), promptly provides
40

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1 the person who provided the notice under sub2 section (c)(1)(C) with a copy of the counter no3 tice, and informs such person that it will re4 place the removed material or cease disabling

5 access to it in ten business days; and

6 ‘‘(C) replaces the removed material and

7 ceases disabling access to it not less than ten,

8 nor more than fourteen, business days following

9 receipt of the counter notice, unless its des10 ignated agent first receives notice from the per11 son who submitted the notification under sub12 section (c)(1)(C) that such person has filed an

13 action seeking a court order to restrain the sub14 scriber from engaging in infringing activity re15 lating to the material on the service provider’s

16 system or network.

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

18 counter notification means any written communica19 tion provided to the service provider’s designated

20 agent that includes substantially the following:

21 ‘‘(A) a physical or electronic signature of

22 the subscriber;

23 ‘‘(B) identification of the material that has

24 been removed or to which access has been dis25 abled and the location at which such material
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1 appeared before it was removed or access was

2 disabled;

3 ‘‘(C) a statement under penalty of perjury

4 that the subscriber has a good faith belief that

5 the material was removed or disabled as a re6 sult of mistake or misidentification of the mate7 rial to be removed or disabled;

8 ‘‘(D) the subscriber’s name, address and

9 telephone number, and a statement that the

10 subscriber consents to the jurisdiction of Fed11 eral Court for the judicial district in which the

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

13 is outside of the United States, for any judicial

14 district in which the service provider may be

15 found, and that the subscriber will accept serv16 ice of process from the person who provided no17 tice under subsection (c)(1)(C) or agent of such

18 person.

19 ‘‘(4) A service provider’s compliance with para20 graph (2) shall not subject the service provider to li21 ability for copyright infringement with respect to the

22 material identified in the notice provided under sub23 section (c)(1)(C).

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

25 copyright owner or a person authorized to act on the own-
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1 er’s behalf may request an order for release of identifica2 tion of an alleged infringer by filing (i) a copy of a notifi3 cation described in subsection (c)(3)(A), including a pro4 posed order, and (ii) a sworn declaration that the purpose

5 of the order is to obtain the identity of an alleged infringer

6 and that such information will only be used for the pur7 pose of this title, with the clerk of any United States dis8 trict court. The order shall authorize and order the service

9 provider receiving the notification to disclose expeditiously

10 to the copyright owner or person authorized by the copy11 right owner information sufficient to identify the alleged

12 direct infringer of the material described in the notifica13 tion to the extent such information is available to the serv14 ice provider. The order shall be expeditiously issued if the

15 accompanying notification satisfies the provisions of sub16 section (c)(3)(A) and the accompanying declaration is

17 properly executed. Upon receipt of the order, either ac18 companying or subsequent to the receipt of a notification

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

20 expeditiously give to the copyright owner or person author21 ized by the copyright owner the information required by

22 the order, notwithstanding any other provision of law and

23 regardless of whether the service provider responds to the

24 notification.

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-
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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-
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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-
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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

22 of 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
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1 transmission, routing or providing of connections for

2 digital online communications, between or among

3 points specified by a user, of material of the user’s

4 choosing, without modification to the content of the

5 material as sent or received.

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

7 section, the term ‘‘service provider’’ means a pro8 vider of online services or network access, or the op9 erator of facilities therefor, and includes an entity

10 described in the preceding paragraph of this sub11 section.

12 ‘‘(2) As used in this section, the term ‘‘mone13 tary relief’’ means damages, costs, attorneys’ fees,

14 and 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 17 U.S.C. § 512 (as amended by this Act), including

6 recommendations for legislation the Register of Copy7 rights considers appropriate regarding such liability, if

8 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;
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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 amend25 ed 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 ‘‘Where a transmitting organization entitled to make

13 a copy or phonorecord under section 112(a)(1) in connec14 tion with the transmission to the public of a performance

15 or display of a work pursuant to that section is prevented

16 from making such copy or phonorecord by reason of the

17 application by the copyright owner of technical measures

18 that prevent the reproduction of the work, such copyright

19 owner shall make available to the transmitting organiza20 tion the necessary means for permitting the making of

21 such copy or phonorecord within the meaning of that sec22 tion, provided that it is technologically feasible and eco23 nomically reasonable for the copyright owner to do so, and

24 provided further that, if such copyright owner fails to do

25 so in a timely manner in light of the transmitting organi-
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1 zation’s reasonable business requirements, the transmit2 ting organization shall not be liable for a violation of sec3 tion 1201(a)(1) of this title for engaging in such activities

4 as are necessary to make such copies or phonorecords as

5 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 clause

13 (3) the following: ‘‘if such notice appears on the

14 copy or phonorecord that is reproduced under

15 the provisions of this section, or a legend stat16 ing 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.’’.