II 

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. 

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 ‘‘Strengthening Meas5 ures to Advance Rights Technologies Copyright Act of 

6 2022’’ or the ‘‘SMART Copyright Act of 2022’’. 


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1 SEC. 2. DEFINITION OF STANDARD TECHNICAL MEASURES. 

2 Section 512(i) of title 17, United States Code, is 

3 amended by striking paragraph (2) and inserting the fol4 lowing: 

5 ‘‘(2) DEFINITION.—In this subsection, the term 

6 ‘standard technical measures’ means technical meas7 ures that are used by copyright owners to identify 

8 or protect copyrighted works, or by service providers 

9 to identify or manage copyrighted works on the serv10 ice, and— 

11 ‘‘(A) have been identified or developed pur12 suant to— 

13 ‘‘(i) a broad consensus of copyright 

14 owners and service providers in an open, 

15 fair, voluntary, multi-industry process; or 

16 ‘‘(ii) a broad consensus of relevant 

17 copyright owners and relevant service pro18 viders, in an open, fair, voluntary process, 

19 for technical measures that are applicable 

20 to a particular industry, type of work, type 

21 or size of service provider, or type of tech22 nical measure; 

23 ‘‘(B) are available to any person on— 

24 ‘‘(i) nondiscriminatory terms; and 

25 ‘‘(ii)(I) a royalty-free basis; or 

26 ‘‘(II) a reasonable royalty basis; and 


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1 ‘‘(C) do not impose substantial and dis2 proportionate costs on service providers or sub3 stantial and disproportionate burdens on their 

4 systems or networks.’’. 

5 SEC. 3. DESIGNATION OF CERTAIN TECHNICAL MEASURES 

6 TO IDENTIFY, PROTECT, OR MANAGE COPY7 RIGHTED WORKS. 

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

9 States Code, is amended by adding at the end the fol10 lowing: 

11 ‘‘§ 514. Designation of certain technical measures to 

12 identify, protect, or manage copyrighted 

13 works 

14 ‘‘(a) DEFINITIONS.—In this section: 

15 ‘‘(1) ACCOMMODATE.—The term ‘accommodate’ 

16 includes adapting, implementing, integrating, adjust17 ing, and conforming. 

18 ‘‘(2) COVERED SERVICE PROVIDER.—The term 

19 ‘covered service provider’ means a service provider to 

20 which a designated technical measure applies. 

21 ‘‘(3) DESIGNATED TECHNICAL MEASURE.—The 

22 term ‘designated technical measure’ means a tech23 nical measure that has been designated by the Li24 brarian in accordance with subsection (c). 


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1 ‘‘(4) LIBRARIAN.—The term ‘Librarian’ means 

2 the Librarian of Congress. 

3 ‘‘(5) PROPOSED TECHNICAL MEASURE.—The 

4 term ‘proposed technical measure’ means a technical 

5 measure that is proposed by a person under sub6 section (d)(1). 

7 ‘‘(6) REGISTER.—The term ‘Register’ means 

8 the Register of Copyrights. 

9 ‘‘(7) SERVICE PROVIDER.—The term ‘service 

10 provider’— 

11 ‘‘(A) means a provider of online services or 

12 network access, or the operator of facilities 

13 therefor, that provides storage at the direction 

14 of a user of material that resides on a system 

15 or network controlled or operated by or for the 

16 service provider; and 

17 ‘‘(B) includes a provider described in sub18 paragraph (A) that offers the transmission, 

19 routing, or providing of connections for digital 

20 online communications, between or among 

21 points specified by a user, of material of the 

22 user’s choosing, without modification to the 

23 content of the material as sent or received. 

24 ‘‘(8) TECHNICAL MEASURE.—The term ‘tech25 nical measure’ means a technical measure that— 


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1 ‘‘(A) is used by— 

2 ‘‘(i) a copyright owner to identify or 

3 protect a copyrighted work; or 

4 ‘‘(ii) a service provider to identify or 

5 manage a copyrighted work; and 

6 ‘‘(B) may vary across types and sizes of 

7 service providers. 

8 ‘‘(b) ACCOMMODATION OF DESIGNATED TECHNICAL

9 MEASURES.—A covered service provider shall use com10 mercially reasonable efforts to accommodate and not inter11 fere with designated technical measures that apply to that 

12 covered service provider. 

13 ‘‘(c) AUTHORITY OF THE LIBRARIAN.— 

14 ‘‘(1) DESIGNATION OF TECHNICAL MEAS15 URES.—The Librarian may, at the recommendation 

16 of the Register, and as provided in subsections (d) 

17 and (e)— 

18 ‘‘(A) designate proposed technical meas19 ures that— 

20 ‘‘(i) are available to any person on— 

21 ‘‘(I) nondiscriminatory terms; 

22 and 

23 ‘‘(II)(aa) a royalty-free basis; or 

24 ‘‘(bb) a reasonable royalty basis; 

25 and 


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1 ‘‘(ii) do not impose substantial and 

2 disproportionate costs on service providers 

3 or substantial and disproportionate bur4 dens on their systems or networks; 

5 ‘‘(B) rescind previously designated tech6 nical measures; or 

7 ‘‘(C) revise previously designated technical 

8 measures. 

9 ‘‘(2) PRESCRIPTION OF RULES.—The Librar10 ian, upon consultation with the Register, shall pre11 scribe rules that— 

12 ‘‘(A) implement subsections (d) and (e); 

13 and 

14 ‘‘(B) provide for the protection of confiden15 tial and sensitive information provided to the 

16 Librarian— 

17 ‘‘(i) as part of a petition under sub18 section (d); or 

19 ‘‘(ii) during a rulemaking under sub20 section (e). 

21 ‘‘(d) PETITIONS.— 

22 ‘‘(1) IN GENERAL.—Not later than 1 year after 

23 the date of enactment of the SMART Copyright Act 

24 of 2022 and every 3 years thereafter, the Librarian 

25 shall accept petitions, from owners of copyrighted 


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1 works, service providers, and other stakeholders, 

2 proposing the designation of a technical measure or 

3 the rescission or revision of a designated technical 

4 measure. 

5 ‘‘(2) PETITION REQUIREMENTS.—In the case of 

6 a petition submitted to the Librarian under para7 graph (1) proposing the designation of a technical 

8 measure or review of a designated technical meas9 ure, as appropriate, the petition shall detail with 

10 specificity— 

11 ‘‘(A) the type of copyrighted works, or any 

12 subset thereof, intended to be covered by the 

13 technical measure; 

14 ‘‘(B) the type of service provider, or any 

15 subset thereof, intended to be covered by the 

16 technical measure; and 

17 ‘‘(C) how the proposed technical measure 

18 or the designated technical measure proposed to 

19 be revised meets both the definition of ‘tech20 nical measure’ under subsection (a) and the cri21 teria set forth in subsection (c)(1)(A). 

22 ‘‘(3) EVALUATION OF PETITION.—After each 

23 deadline under paragraph (1), the Librarian shall 

24 evaluate each petition received under that paragraph 

25 and take appropriate action as follows: 


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1 ‘‘(A) The Librarian may begin a rule2 making process to— 

3 ‘‘(i) designate a proposed technical 

4 measure; or 

5 ‘‘(ii) rescind or revise a designated 

6 technical measure. 

7 ‘‘(B) The Librarian shall reject without a 

8 rulemaking proceeding a petition that proposes 

9 the designation or revision of a privately owned 

10 technical measure, unless the petition is filed or 

11 joined by the owner of the technical measure 

12 proposed to be designated or revised. 

13 ‘‘(e) RULEMAKING PROCESS.— 

14 ‘‘(1) PUBLIC COMMENT.—For any proposed 

15 technical measure or designated technical measure 

16 for which the Librarian has begun a rulemaking 

17 process under subsection (d)(3)(A), the public com18 ment process shall include not less than 1 public 

19 hearing convened by the Register, which shall in20 clude written input from relevant technical experts. 

21 ‘‘(2) FACTORS FOR EXAMINATION BY REG22 ISTER.—For any rulemaking process the Librarian 

23 has begun under subsection (d)(3)(A), with respect 

24 to each technical measure, the Register shall exam25 ine— 


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1 ‘‘(A) the availability and use of the tech2 nical measure to identify, manage, or protect 

3 particular types of copyrighted works on par4 ticular types of services; 

5 ‘‘(B) the terms on which the technical 

6 measure is and will be made available to any 

7 person under subsection (c)(1)(A)(i), including 

8 whether there are any intellectual property 

9 rights that need to be licensed by service pro10 viders to accommodate the technical measure; 

11 ‘‘(C) the total cost that accommodating or 

12 not interfering with the technical measure may 

13 impose on the type of service providers de14 scribed in the petition; 

15 ‘‘(D) the burden the technical measure 

16 may impose on the systems or networks of serv17 ice providers, as compared to— 

18 ‘‘(i) the total amount of alleged or 

19 demonstrated infringing activity occurring 

20 over systems or networks controlled by the 

21 type of service providers described in the 

22 petition; 

23 ‘‘(ii) the revenue and other financial 

24 resources of the type of service providers 

25 described in the petition; and 


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1 ‘‘(iii) any mitigation of costs or other 

2 benefits or savings that the type of service 

3 providers described in the petition may 

4 achieve by accommodating or not inter5 fering with the technical measure; 

6 ‘‘(E) in the case of a proposed technical 

7 measure, whether the proposed technical meas8 ure is also a standard technical measure, as de9 fined in section 512(i), to avoid designating a 

10 technical measure that is otherwise a standard 

11 technical measure; 

12 ‘‘(F) the positive or negative impact the 

13 technical measure may have on criticism, com14 ment, news reporting, teaching, scholarship, re15 search, increasing information sharing, or other 

16 relevant public interest considerations; 

17 ‘‘(G) whether the technical measure poses 

18 an undue cybersecurity threat (as defined in 

19 section 102 of the Cybersecurity Information 

20 Sharing Act of 2015 (6 U.S.C 1501)) to, or 

21 would create a security vulnerability (as defined 

22 in such section 102) for, the information sys23 tems of the affected service providers; 

24 ‘‘(H) the impact the technical measure 

25 may have on privacy and data protection; 


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1 ‘‘(I) the impact the technical measure may 

2 have on competition among service providers, 

3 and the impact it may have on competition 

4 among copyright owners; 

5 ‘‘(J) whether certain categories or types of 

6 service providers should be exempt from the 

7 subset of service providers covered by a des8 ignation, such as— 

9 ‘‘(i) libraries; 

10 ‘‘(ii) educational institutions; or 

11 ‘‘(iii) corporate or not-for-profit 

12 websites that permit user comments or 

13 posts, but have never or rarely had infring14 ing activity on their services; and 

15 ‘‘(K) in the case of a proposed technical 

16 measure, whether— 

17 ‘‘(i) the proposed technical measure 

18 may conflict or interfere with other pro19 posed technical measures or designated 

20 technical measures; or 

21 ‘‘(ii) multiple proposed technical 

22 measures and designated technical meas23 ures should be subsumed under a broader 

24 category of designated technical measures. 

25 ‘‘(3) RECOMMENDATION.— 


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1 ‘‘(A) IN GENERAL.—The Register shall 

2 make a recommendation that includes written 

3 input from the Chief Technology Advisor to the 

4 Librarian on each proposed technical measure, 

5 and each designated technical measure pro6 posed to be revised or rescinded, that is consid7 ered under the rulemaking process under this 

8 subsection, after consulting with, and reporting 

9 and commenting on the views of, the following, 

10 as appropriate: 

11 ‘‘(i) The Director of the National In12 stitute of Standards and Technology. 

13 ‘‘(ii) The Assistant Secretary of Com14 merce for Communications and Informa15 tion. 

16 ‘‘(iii) The Attorney General, for the 

17 purpose of providing an analysis of the im18 pact a proposed technical measure may 

19 have on competition among service pro20 viders or copyright owners, as appropriate. 

21 ‘‘(iv) Any relevant cybersecurity agen22 cy. 

23 ‘‘(B) RESOLUTION OF DISAGREEMENT.—If 

24 there is substantial disagreement between the 

25 recommendation of the Register and any of the 


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1 views expressed by the agencies consulted under 

2 subparagraph (A), the Librarian shall explain 

3 in writing the reasons for the resolution of the 

4 disagreement as part of the decision under 

5 paragraph (4). 

6 ‘‘(4) DECISION.—If, at the conclusion of the 

7 rulemaking process under this subsection, the Li8 brarian determines that the record supports the des9 ignation of a proposed technical measure, or a re10 scission or revision of a designated technical meas11 ure, the Librarian shall— 

12 ‘‘(A)(i) for a proposed technical measure, 

13 designate the proposed technical measure; or 

14 ‘‘(ii) for a designated technical measure 

15 proposed to be revised, designate the revised 

16 technical measure; 

17 ‘‘(B) for a proposed technical measure or 

18 a designated technical measure proposed to be 

19 revised— 

20 ‘‘(i) describe, as part of the designa21 tion under subparagraph (A), the type of 

22 copyrighted work, or any subset thereof, 

23 and the covered service providers to which 

24 the technical measure applies; and 


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1 ‘‘(ii) include in the description under 

2 clause (i), as appropriate, any category or 

3 subset of type of service provider that is 

4 exempt from the designation, such that the 

5 requirement under subsection (b) does not 

6 apply to those service providers; 

7 ‘‘(C) for a designated technical measure 

8 proposed to be rescinded, rescind the technical 

9 measure; 

10 ‘‘(D) for a proposed technical measure or 

11 a designated technical measure proposed to be 

12 revised, provide examples or a definition with 

13 specificity for what ‘accommodate’ means for 

14 the technical measure, taking into account how 

15 different covered service providers to which the 

16 technical measure applies may have to accom17 modate differently based on their size or other 

18 relevant characteristics; 

19 ‘‘(E) publish a list of designated technical 

20 measures, including the description required 

21 under subparagraph (B)(i), in effect after the 

22 Librarian has designated, revised, and re23 scinded technical measures under this para24 graph in the Federal Register and publish and 


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1 maintain the list on the website of the Library 

2 of Congress; and 

3 ‘‘(F) for a proposed technical measure or 

4 a revised designated technical measure, publish 

5 a deadline, which shall not be earlier than 1 

6 year after the date of publication, by which 

7 service providers shall implement the designated 

8 technical measure. 

9 ‘‘(f) PUBLIC INFORMATION.—To assist the public in 

10 understanding the requirements under this section, the 

11 Register shall— 

12 ‘‘(1) publish on the website of the Copyright 

13 Office an index of cases relating to the requirements; 

14 and 

15 ‘‘(2) update the list published under paragraph 

16 (1) not less frequently than annually. 

17 ‘‘(g) AUTHORIZATION OF APPROPRIATIONS.— 

18 ‘‘(1) IN GENERAL.—There is authorized to be 

19 appropriated to carry out this section— 

20 ‘‘(A) $900,000 for fiscal year 2023; and 

21 ‘‘(B) subject to paragraph (2), $700,000 

22 for fiscal year 2024 and each fiscal year there23 after. 

24 ‘‘(2) ADJUSTMENT FOR INFLATION.—The 

25 amount authorized to be appropriated under paraVerDate Sep 11 2014 17:03 Mar 21, 2022 Jkt 029200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S3880.IS S3880

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1 graph (1)(B) for fiscal year 2025 and each fiscal 

2 year thereafter shall be adjusted annually to reflect 

3 the change in the Consumer Price Index for All 

4 Urban Consumers published by the Bureau of Labor 

5 Statistics. 

6 ‘‘(h) APPEAL TO DISTRICT OF COLUMBIA CIRCUIT.— 

7 Not later than 90 days after the date on which the Librar8 ian publishes a decision regarding a technical measure 

9 under subsection (e)(4), any covered service provider to 

10 which the technical measure applies and any party that 

11 submitted a petition under subsection (d) regarding the 

12 technical measure may appeal the decision to the United 

13 States Court of Appeals for the District of Columbia Cir14 cuit. 

15 ‘‘(i) CIVIL REMEDIES.— 

16 ‘‘(1) CIVIL ACTIONS.—A copyright owner ag17 grieved by a violation of subsection (b) by a covered 

18 service provider may bring a civil action against the 

19 covered service provider in an appropriate United 

20 States district court. 

21 ‘‘(2) AUTHORITY OF THE COURT.—In an action 

22 brought under paragraph (1), the court may— 

23 ‘‘(A) grant a temporary or permanent in24 junction on such terms as it determines reason25 able to prevent or restrain a violation; 


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1 ‘‘(B) award damages, in accordance with 

2 paragraph (3); 

3 ‘‘(C) allow, in its discretion, the recovery of 

4 costs by or against any party other than the 

5 United States or an officer of the United 

6 States; and 

7 ‘‘(D) award, in its discretion, reasonable 

8 attorney fees or expert witness fees to the pre9 vailing party. 

10 ‘‘(3) AWARD OF DAMAGES.— 

11 ‘‘(A) IN GENERAL.—Except as provided in 

12 subparagraph (B) or otherwise provided in this 

13 title, in an action brought by a copyright owner 

14 against a service provider under paragraph (1), 

15 the court shall award to the copyright owner 

16 the actual damages suffered by the copyright 

17 owner as a result of the violation. 

18 ‘‘(B) STATUTORY DAMAGES.— 

19 ‘‘(i) IN GENERAL.—In an action 

20 brought under paragraph (1), the copy21 right owner may elect to recover, in lieu of 

22 actual damages, an award of statutory 

23 damages in an amount that is— 


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1 ‘‘(I) not less than $200 and not 

2 more than $25,000 per violation, as 

3 the court considers just; and 

4 ‘‘(II) not more than $150,000 in 

5 the aggregate. 

6 ‘‘(ii) REPEATED VIOLATIONS.— 

7 ‘‘(I) 2 OR MORE VIOLATIONS.— 

8 If, in an action brought against a 

9 service provider under paragraph (1), 

10 the copyright owner proves that the 

11 service provider violated subsection 

12 (b) not less than 1 time during the 3- 

13 year period beginning on the date of 

14 a final judgment entered against the 

15 service provider for a violation of that 

16 subsection, the copyright owner may 

17 elect to recover an award of statutory 

18 damages in an amount that is— 

19 ‘‘(aa) not less than $5,000 

20 and not more than $400,000 per 

21 violation, as the court considers 

22 just; and 

23 ‘‘(bb) not more than 

24 $800,000 in the aggregate. 


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1 ‘‘(II) 3 OR MORE VIOLATIONS.— 

2 If, in an action brought against a 

3 service provider under paragraph (1), 

4 the copyright owner proves that the 

5 service provider violated subsection 

6 (b) not fewer than 2 times during the 

7 5-year period beginning on the date of 

8 a final judgment entered against the 

9 service provider for a violation of that 

10 subsection, the court may increase the 

11 award of damages to not more than 

12 triple the amount that would other13 wise be awarded under subparagraph 

14 (A) or subclause (I) of this clause, as 

15 the court considers just. 

16 ‘‘(C) INNOCENT VIOLATIONS.—The court, 

17 in its discretion, may reduce or remit the total 

18 award of damages in any action brought 

19 against a service provider under paragraph 

20 (1)— 

21 ‘‘(i) in which the service provider 

22 proves by a preponderance of the evidence 

23 that the service provider was not aware 

24 and had no reason to believe that its acts 

25 constituted a violation of subsection (b); or 


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1 ‘‘(ii) for reasons of equity. 

2 ‘‘(j) NO IMPACT ON SAFE HARBOR.— 

3 ‘‘(1) IN GENERAL.—Nothing in this section 

4 shall be construed to alter the scope of the safe har5 bors set forth in subsections (a) through (e) of sec6 tion 512, or to impose a condition on eligibility for 

7 those safe harbors. 

8 ‘‘(2) NO DEFENSE TO LIABILITY.—The safe 

9 harbors set forth in subsections (a) through (e) of 

10 section 512 shall not constitute a defense to liability 

11 under this section. 

12 ‘‘(k) LIMITATION OF LIABILITY.—Notwithstanding 

13 subsection (i), no covered service provider shall be held 

14 liable in a civil action on account of— 

15 ‘‘(1) any action voluntarily taken in good faith 

16 under this section to restrict access to or availability 

17 of material; or 

18 ‘‘(2) any action taken under this section to en19 able or make available to covered service providers 

20 the technical means to restrict access to material de21 scribed in paragraph (1).’’. 

22 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

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

24 States Code, is amended by adding at the end the fol25 lowing: 


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‘‘514. Designation of certain technical measures to identify, protect, or manage 

copyrighted works.’’. 

1 SEC. 4. ADVISORS. 

2 (a) ADVISORS TO THE REGISTER.—Chapter 7 of title 

3 17, United States Code, is amended by adding at the end 

4 the following: 

5 ‘‘§ 711. Advisors to the Register 

6 ‘‘(a) CHIEF ECONOMIST.—Not later than 180 days 

7 after the date of enactment of the SMART Copyright Act 

8 of 2022, the Register shall appoint a Chief Economist 

9 within the Office of the Register, who shall advise the Reg10 ister on issues related to economic policy and copyright. 

11 ‘‘(b) CHIEF TECHNOLOGY ADVISOR.— 

12 ‘‘(1) IN GENERAL.—Not later than 180 days 

13 after the date of enactment of the SMART Copy14 right Act of 2022, the Register shall appoint a Chief 

15 Technology Advisor, who shall advise the Register on 

16 technology issues related to copyright law, including 

17 by evaluating and providing advice on the factors in 

18 section 514(e)(2). 

19 ‘‘(2) QUALIFICATIONS.—The individual ap20 pointed as Chief Technology Advisor under para21 graph (1) shall have significant technical expertise, 

22 including experience with computer software, stand23 ards, and technological measures relevant to copy24 right law. 


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1 ‘‘(3) TERM.—The individual appointed as Chief 

2 Technology Advisor under paragraph (1) shall serve 

3 for a limited term to be determined by the Register, 

4 but not to exceed 5 years.’’. 

5 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

6 The table of sections for chapter 7 of title 17, United 

7 States Code, is amended by adding at the end the fol8 lowing: 

‘‘711. Advisors to the Register.’’. 

Æ 


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