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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3880 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  2d Session
                                S. 3880

   To amend title 17, United States Code, to define and provide for 
   accommodation and designation of technical measures to identify, 
     protect, or manage copyrighted works, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 17, 2022

 Mr. Tillis (for himself and Mr. Leahy) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
   To amend title 17, United States Code, to define and provide for 
   accommodation and designation of technical measures to identify, 
     protect, or manage copyrighted works, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Strengthening Measures to Advance 
Rights Technologies Copyright Act of 2022'' or the ``SMART Copyright 
Act of 2022''.

SEC. 2. DEFINITION OF STANDARD TECHNICAL MEASURES.

    Section 512(i) of title 17, United States Code, is amended by 
striking paragraph (2) and inserting the following:
            ``(2) Definition.--In this subsection, the term `standard 
        technical measures' means technical measures that are used by 
        copyright owners to identify or protect copyrighted works, or 
        by service providers to identify or manage copyrighted works on 
        the service, and--
                    ``(A) have been identified or developed pursuant 
                to--
                            ``(i) a broad consensus of copyright owners 
                        and service providers in an open, fair, 
                        voluntary, multi-industry process; or
                            ``(ii) a broad consensus of relevant 
                        copyright owners and relevant service 
                        providers, in an open, fair, voluntary process, 
                        for technical measures that are applicable to a 
                        particular industry, type of work, type or size 
                        of service provider, or type of technical 
                        measure;
                    ``(B) are available to any person on--
                            ``(i) nondiscriminatory terms; and
                            ``(ii)(I) a royalty-free basis; or
                            ``(II) a reasonable royalty basis; and
                    ``(C) do not impose substantial and 
                disproportionate costs on service providers or 
                substantial and disproportionate burdens on their 
                systems or networks.''.

SEC. 3. DESIGNATION OF CERTAIN TECHNICAL MEASURES TO IDENTIFY, PROTECT, 
              OR MANAGE COPYRIGHTED WORKS.

    (a) In General.--Chapter 5 of title 17, United States Code, is 
amended by adding at the end the following:
``Sec. 514. Designation of certain technical measures to identify, 
              protect, or manage copyrighted works
    ``(a) Definitions.--In this section:
            ``(1) Accommodate.--The term `accommodate' includes 
        adapting, implementing, integrating, adjusting, and conforming.
            ``(2) Covered service provider.--The term `covered service 
        provider' means a service provider to which a designated 
        technical measure applies.
            ``(3) Designated technical measure.--The term `designated 
        technical measure' means a technical measure that has been 
        designated by the Librarian in accordance with subsection (c).
            ``(4) Librarian.--The term `Librarian' means the Librarian 
        of Congress.
            ``(5) Proposed technical measure.--The term `proposed 
        technical measure' means a technical measure that is proposed 
        by a person under subsection (d)(1).
            ``(6) Register.--The term `Register' means the Register of 
        Copyrights.
            ``(7) Service provider.--The term `service provider'--
                    ``(A) means a provider of online services or 
                network access, or the operator of facilities therefor, 
                that provides storage at the direction of a user of 
                material that resides on a system or network controlled 
                or operated by or for the service provider; and
                    ``(B) includes a provider described in subparagraph 
                (A) that offers the transmission, routing, or providing 
                of connections for digital online communications, 
                between or among points specified by a user, of 
                material of the user's choosing, without modification 
                to the content of the material as sent or received.
            ``(8) Technical measure.--The term `technical measure' 
        means a technical measure that--
                    ``(A) is used by--
                            ``(i) a copyright owner to identify or 
                        protect a copyrighted work; or
                            ``(ii) a service provider to identify or 
                        manage a copyrighted work; and
                    ``(B) may vary across types and sizes of service 
                providers.
    ``(b) Accommodation of Designated Technical Measures.--A covered 
service provider shall use commercially reasonable efforts to 
accommodate and not interfere with designated technical measures that 
apply to that covered service provider.
    ``(c) Authority of the Librarian.--
            ``(1) Designation of technical measures.--The Librarian 
        may, at the recommendation of the Register, and as provided in 
        subsections (d) and (e)--
                    ``(A) designate proposed technical measures that--
                            ``(i) are available to any person on--
                                    ``(I) nondiscriminatory terms; and
                                    ``(II)(aa) a royalty-free basis; or
                                    ``(bb) a reasonable royalty basis; 
                                and
                            ``(ii) do not impose substantial and 
                        disproportionate costs on service providers or 
                        substantial and disproportionate burdens on 
                        their systems or networks;
                    ``(B) rescind previously designated technical 
                measures; or
                    ``(C) revise previously designated technical 
                measures.
            ``(2) Prescription of rules.--The Librarian, upon 
        consultation with the Register, shall prescribe rules that--
                    ``(A) implement subsections (d) and (e); and
                    ``(B) provide for the protection of confidential 
                and sensitive information provided to the Librarian--
                            ``(i) as part of a petition under 
                        subsection (d); or
                            ``(ii) during a rulemaking under subsection 
                        (e).
    ``(d) Petitions.--
            ``(1) In general.--Not later than 1 year after the date of 
        enactment of the SMART Copyright Act of 2022 and every 3 years 
        thereafter, the Librarian shall accept petitions, from owners 
        of copyrighted works, service providers, and other 
        stakeholders, proposing the designation of a technical measure 
        or the rescission or revision of a designated technical 
        measure.
            ``(2) Petition requirements.--In the case of a petition 
        submitted to the Librarian under paragraph (1) proposing the 
        designation of a technical measure or review of a designated 
        technical measure, as appropriate, the petition shall detail 
        with specificity--
                    ``(A) the type of copyrighted works, or any subset 
                thereof, intended to be covered by the technical 
                measure;
                    ``(B) the type of service provider, or any subset 
                thereof, intended to be covered by the technical 
                measure; and
                    ``(C) how the proposed technical measure or the 
                designated technical measure proposed to be revised 
                meets both the definition of `technical measure' under 
                subsection (a) and the criteria set forth in subsection 
                (c)(1)(A).
            ``(3) Evaluation of petition.--After each deadline under 
        paragraph (1), the Librarian shall evaluate each petition 
        received under that paragraph and take appropriate action as 
        follows:
                    ``(A) The Librarian may begin a rulemaking process 
                to--
                            ``(i) designate a proposed technical 
                        measure; or
                            ``(ii) rescind or revise a designated 
                        technical measure.
                    ``(B) The Librarian shall reject without a 
                rulemaking proceeding a petition that proposes the 
                designation or revision of a privately owned technical 
                measure, unless the petition is filed or joined by the 
                owner of the technical measure proposed to be 
                designated or revised.
    ``(e) Rulemaking Process.--
            ``(1) Public comment.--For any proposed technical measure 
        or designated technical measure for which the Librarian has 
        begun a rulemaking process under subsection (d)(3)(A), the 
        public comment process shall include not less than 1 public 
        hearing convened by the Register, which shall include written 
        input from relevant technical experts.
            ``(2) Factors for examination by register.--For any 
        rulemaking process the Librarian has begun under subsection 
        (d)(3)(A), with respect to each technical measure, the Register 
        shall examine--
                    ``(A) the availability and use of the technical 
                measure to identify, manage, or protect particular 
                types of copyrighted works on particular types of 
                services;
                    ``(B) the terms on which the technical measure is 
                and will be made available to any person under 
                subsection (c)(1)(A)(i), including whether there are 
                any intellectual property rights that need to be 
                licensed by service providers to accommodate the 
                technical measure;
                    ``(C) the total cost that accommodating or not 
                interfering with the technical measure may impose on 
                the type of service providers described in the 
                petition;
                    ``(D) the burden the technical measure may impose 
                on the systems or networks of service providers, as 
                compared to--
                            ``(i) the total amount of alleged or 
                        demonstrated infringing activity occurring over 
                        systems or networks controlled by the type of 
                        service providers described in the petition;
                            ``(ii) the revenue and other financial 
                        resources of the type of service providers 
                        described in the petition; and
                            ``(iii) any mitigation of costs or other 
                        benefits or savings that the type of service 
                        providers described in the petition may achieve 
                        by accommodating or not interfering with the 
                        technical measure;
                    ``(E) in the case of a proposed technical measure, 
                whether the proposed technical measure is also a 
                standard technical measure, as defined in section 
                512(i), to avoid designating a technical measure that 
                is otherwise a standard technical measure;
                    ``(F) the positive or negative impact the technical 
                measure may have on criticism, comment, news reporting, 
                teaching, scholarship, research, increasing information 
                sharing, or other relevant public interest 
                considerations;
                    ``(G) whether the technical measure poses an undue 
                cybersecurity threat (as defined in section 102 of the 
                Cybersecurity Information Sharing Act of 2015 (6 U.S.C 
                1501)) to, or would create a security vulnerability (as 
                defined in such section 102) for, the information 
                systems of the affected service providers;
                    ``(H) the impact the technical measure may have on 
                privacy and data protection;
                    ``(I) the impact the technical measure may have on 
                competition among service providers, and the impact it 
                may have on competition among copyright owners;
                    ``(J) whether certain categories or types of 
                service providers should be exempt from the subset of 
                service providers covered by a designation, such as--
                            ``(i) libraries;
                            ``(ii) educational institutions; or
                            ``(iii) corporate or not-for-profit 
                        websites that permit user comments or posts, 
                        but have never or rarely had infringing 
                        activity on their services; and
                    ``(K) in the case of a proposed technical measure, 
                whether--
                            ``(i) the proposed technical measure may 
                        conflict or interfere with other proposed 
                        technical measures or designated technical 
                        measures; or
                            ``(ii) multiple proposed technical measures 
                        and designated technical measures should be 
                        subsumed under a broader category of designated 
                        technical measures.
            ``(3) Recommendation.--
                    ``(A) In general.--The Register shall make a 
                recommendation that includes written input from the 
                Chief Technology Advisor to the Librarian on each 
                proposed technical measure, and each designated 
                technical measure proposed to be revised or rescinded, 
                that is considered under the rulemaking process under 
                this subsection, after consulting with, and reporting 
                and commenting on the views of, the following, as 
                appropriate:
                            ``(i) The Director of the National 
                        Institute of Standards and Technology.
                            ``(ii) The Assistant Secretary of Commerce 
                        for Communications and Information.
                            ``(iii) The Attorney General, for the 
                        purpose of providing an analysis of the impact 
                        a proposed technical measure may have on 
                        competition among service providers or 
                        copyright owners, as appropriate.
                            ``(iv) Any relevant cybersecurity agency.
                    ``(B) Resolution of disagreement.--If there is 
                substantial disagreement between the recommendation of 
                the Register and any of the views expressed by the 
                agencies consulted under subparagraph (A), the 
                Librarian shall explain in writing the reasons for the 
                resolution of the disagreement as part of the decision 
                under paragraph (4).
            ``(4) Decision.--If, at the conclusion of the rulemaking 
        process under this subsection, the Librarian determines that 
        the record supports the designation of a proposed technical 
        measure, or a rescission or revision of a designated technical 
        measure, the Librarian shall--
                    ``(A)(i) for a proposed technical measure, 
                designate the proposed technical measure; or
                    ``(ii) for a designated technical measure proposed 
                to be revised, designate the revised technical measure;
                    ``(B) for a proposed technical measure or a 
                designated technical measure proposed to be revised--
                            ``(i) describe, as part of the designation 
                        under subparagraph (A), the type of copyrighted 
                        work, or any subset thereof, and the covered 
                        service providers to which the technical 
                        measure applies; and
                            ``(ii) include in the description under 
                        clause (i), as appropriate, any category or 
                        subset of type of service provider that is 
                        exempt from the designation, such that the 
                        requirement under subsection (b) does not apply 
                        to those service providers;
                    ``(C) for a designated technical measure proposed 
                to be rescinded, rescind the technical measure;
                    ``(D) for a proposed technical measure or a 
                designated technical measure proposed to be revised, 
                provide examples or a definition with specificity for 
                what `accommodate' means for the technical measure, 
                taking into account how different covered service 
                providers to which the technical measure applies may 
                have to accommodate differently based on their size or 
                other relevant characteristics;
                    ``(E) publish a list of designated technical 
                measures, including the description required under 
                subparagraph (B)(i), in effect after the Librarian has 
                designated, revised, and rescinded technical measures 
                under this paragraph in the Federal Register and 
                publish and maintain the list on the website of the 
                Library of Congress; and
                    ``(F) for a proposed technical measure or a revised 
                designated technical measure, publish a deadline, which 
                shall not be earlier than 1 year after the date of 
                publication, by which service providers shall implement 
                the designated technical measure.
    ``(f) Public Information.--To assist the public in understanding 
the requirements under this section, the Register shall--
            ``(1) publish on the website of the Copyright Office an 
        index of cases relating to the requirements; and
            ``(2) update the list published under paragraph (1) not 
        less frequently than annually.
    ``(g) Authorization of Appropriations.--
            ``(1) In general.--There is authorized to be appropriated 
        to carry out this section--
                    ``(A) $900,000 for fiscal year 2023; and
                    ``(B) subject to paragraph (2), $700,000 for fiscal 
                year 2024 and each fiscal year thereafter.
            ``(2) Adjustment for inflation.--The amount authorized to 
        be appropriated under paragraph (1)(B) for fiscal year 2025 and 
        each fiscal year thereafter shall be adjusted annually to 
        reflect the change in the Consumer Price Index for All Urban 
        Consumers published by the Bureau of Labor Statistics.
    ``(h) Appeal to District of Columbia Circuit.--Not later than 90 
days after the date on which the Librarian publishes a decision 
regarding a technical measure under subsection (e)(4), any covered 
service provider to which the technical measure applies and any party 
that submitted a petition under subsection (d) regarding the technical 
measure may appeal the decision to the United States Court of Appeals 
for the District of Columbia Circuit.
    ``(i) Civil Remedies.--
            ``(1) Civil actions.--A copyright owner aggrieved by a 
        violation of subsection (b) by a covered service provider may 
        bring a civil action against the covered service provider in an 
        appropriate United States district court.
            ``(2) Authority of the court.--In an action brought under 
        paragraph (1), the court may--
                    ``(A) grant a temporary or permanent injunction on 
                such terms as it determines reasonable to prevent or 
                restrain a violation;
                    ``(B) award damages, in accordance with paragraph 
                (3);
                    ``(C) allow, in its discretion, the recovery of 
                costs by or against any party other than the United 
                States or an officer of the United States; and
                    ``(D) award, in its discretion, reasonable attorney 
                fees or expert witness fees to the prevailing party.
            ``(3) Award of damages.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B) or otherwise provided in this title, 
                in an action brought by a copyright owner against a 
                service provider under paragraph (1), the court shall 
                award to the copyright owner the actual damages 
                suffered by the copyright owner as a result of the 
                violation.
                    ``(B) Statutory damages.--
                            ``(i) In general.--In an action brought 
                        under paragraph (1), the copyright owner may 
                        elect to recover, in lieu of actual damages, an 
                        award of statutory damages in an amount that 
                        is--
                                    ``(I) not less than $200 and not 
                                more than $25,000 per violation, as the 
                                court considers just; and
                                    ``(II) not more than $150,000 in 
                                the aggregate.
                            ``(ii) Repeated violations.--
                                    ``(I) 2 or more violations.--If, in 
                                an action brought against a service 
                                provider under paragraph (1), the 
                                copyright owner proves that the service 
                                provider violated subsection (b) not 
                                less than 1 time during the 3-year 
                                period beginning on the date of a final 
                                judgment entered against the service 
                                provider for a violation of that 
                                subsection, the copyright owner may 
                                elect to recover an award of statutory 
                                damages in an amount that is--
                                            ``(aa) not less than $5,000 
                                        and not more than $400,000 per 
                                        violation, as the court 
                                        considers just; and
                                            ``(bb) not more than 
                                        $800,000 in the aggregate.
                                    ``(II) 3 or more violations.--If, 
                                in an action brought against a service 
                                provider under paragraph (1), the 
                                copyright owner proves that the service 
                                provider violated subsection (b) not 
                                fewer than 2 times during the 5-year 
                                period beginning on the date of a final 
                                judgment entered against the service 
                                provider for a violation of that 
                                subsection, the court may increase the 
                                award of damages to not more than 
                                triple the amount that would otherwise 
                                be awarded under subparagraph (A) or 
                                subclause (I) of this clause, as the 
                                court considers just.
                    ``(C) Innocent violations.--The court, in its 
                discretion, may reduce or remit the total award of 
                damages in any action brought against a service 
                provider under paragraph (1)--
                            ``(i) in which the service provider proves 
                        by a preponderance of the evidence that the 
                        service provider was not aware and had no 
                        reason to believe that its acts constituted a 
                        violation of subsection (b); or
                            ``(ii) for reasons of equity.
    ``(j) No Impact on Safe Harbor.--
            ``(1) In general.--Nothing in this section shall be 
        construed to alter the scope of the safe harbors set forth in 
        subsections (a) through (e) of section 512, or to impose a 
        condition on eligibility for those safe harbors.
            ``(2) No defense to liability.--The safe harbors set forth 
        in subsections (a) through (e) of section 512 shall not 
        constitute a defense to liability under this section.
    ``(k) Limitation of Liability.--Notwithstanding subsection (i), no 
covered service provider shall be held liable in a civil action on 
account of--
            ``(1) any action voluntarily taken in good faith under this 
        section to restrict access to or availability of material; or
            ``(2) any action taken under this section to enable or make 
        available to covered service providers the technical means to 
        restrict access to material described in paragraph (1).''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 5 of title 17, United States Code, is amended by adding at the 
end the following:

``514. Designation of certain technical measures to identify, protect, 
                            or manage copyrighted works.''.

SEC. 4. ADVISORS.

    (a) Advisors to the Register.--Chapter 7 of title 17, United States 
Code, is amended by adding at the end the following:
``Sec. 711. Advisors to the Register
    ``(a) Chief Economist.--Not later than 180 days after the date of 
enactment of the SMART Copyright Act of 2022, the Register shall 
appoint a Chief Economist within the Office of the Register, who shall 
advise the Register on issues related to economic policy and copyright.
    ``(b) Chief Technology Advisor.--
            ``(1) In general.--Not later than 180 days after the date 
        of enactment of the SMART Copyright Act of 2022, the Register 
        shall appoint a Chief Technology Advisor, who shall advise the 
        Register on technology issues related to copyright law, 
        including by evaluating and providing advice on the factors in 
        section 514(e)(2).
            ``(2) Qualifications.--The individual appointed as Chief 
        Technology Advisor under paragraph (1) shall have significant 
        technical expertise, including experience with computer 
        software, standards, and technological measures relevant to 
        copyright law.
            ``(3) Term.--The individual appointed as Chief Technology 
        Advisor under paragraph (1) shall serve for a limited term to 
        be determined by the Register, but not to exceed 5 years.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 7 of title 17, United States Code, is amended by adding at the 
end the following:

``711. Advisors to the Register.''.
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