person to circumvent a technological pro-
tection measure that effectively controls
access to a work protected under title 17,
United States Code, if—
(A) the technological protection
measure, or the work it protects, con-
tains the capability of collecting or
disseminating personally identifying
information reflecting the online ac-
tivities of a natural person who seeks
to gain access to the work protected;
(B) in the normal course of its op-
eration, the technological protection
measure, or the work it protects, col-
lects or disseminates personally iden-
tifying information about the person
who seeks to gain access to the work
protected, 
without 
providing 
con-
spicuous notice of such collection or
dissemination to such person, and
without providing such person with
the capability to prevent or restrict
such collection or dissemination;
(C) the act of circumvention has
the sole effect of identifying and dis-
abling the capability described in
subparagraph (A), and has no other
effect on the ability of any person to
gain access to any work; and
(D) the act of circumvention is
carried out solely for the purpose of
preventing the collection or dissemi-
nation of personally identifying infor-
mation about a natural person who
seeks to gain access to the work pro-
tected, and is not in violation of any
other law.
(2) INAPPLICABILITY TO CERTAIN TECH-
NOLOGICAL
PROTECTION
MEASURES.—This
subsection does not apply to a techno-
logical protection measure, or a work it
protects, that does not collect or dissemi-
nate personally identifying information
and that is disclosed to a user as not hav-
ing or using such capability.
SEC. 103. INTEGRITY OF COPYRIGHT MANAGEMENT INFOR-
MATION.
(a) FALSE COPYRIGHT MANAGEMENT INFOR-
MATION.—No person shall knowingly and with
the intent to induce, enable, facilitate, or con-
ceal infringement—
(1) provide copyright management in-
formation that is false, or
(2) distribute or import for distribu-
tion copyright management information
that is false.
(b) REMOVAL OR ALTERATION OF COPYRIGHT
MANAGEMENT INFORMATION.—No person shall,
without the authority of the copyright owner
or the law—
(1) intentionally remove or alter any
copyright management information,
(2) distribute or import for distribu-
tion copyright management information
knowing that the copyright management
information has been removed or altered
without authority of the copyright owner
or the law, or
(3) distribute, import for distribution,
or publicly perform works, copies of
works, or phonorecords, knowing that
copyright management information has
been removed or altered without author-
ity of the copyright owner or the law,
knowing, or, with respect to civil remedies
under section 104, having reasonable grounds
to know, that it will induce, enable, facilitate,
or conceal an infringement of any right under
title 17, United States Code.
(c) DEFINITIONS.—As used in this section—
(1) the terms ‘‘distribute’’, ‘‘publicly
perform’’, ‘‘copies’’, and ‘‘phonorecords’’
have the meanings given those terms in
title 17, United States Code; and
(2) the term ‘‘copyright management
information’’ means any of the following
information conveyed in connection with
copies or phonorecords of a work or per-
formances or displays of a work, includ-
ing in digital form, except that such term
does not include any personally identify-
ing information about a user of a work or
of a copy, phonorecord, performance, or
display of a work:
(A) The title and other informa-
tion identifying the work, including
the information set forth on a notice
of copyright.
(B) The name of, and other identi-
fying information about, the author
of a work.
(C) The name of, and other identi-
fying information about, the copy-
right owner of the work, including
the information set forth in a notice
of copyright.
(D) With the exception of public
performances of works by radio and
television 
broadcast 
stations, 
the
name of, and other identifying infor-
mation about, a performer whose per-
formance is fixed in a work other
than an audiovisual work.
(E) With the exception of public
performances of works by radio and
television broadcast stations, in the
case of an audiovisual work, the
name of, and other identifying infor-
mation about, a writer, performer, or
director who is credited in the audio-
visual work.
(F) Terms and conditions for use
of the work.
Communications Act of 1934), or someone
who provides programming to such sta-
tion or system, shall not be liable for a
violation of subsection (b) if—
(A) avoiding the activity that con-
stitutes such violation is not tech-
nically feasible or would create an
undue financial hardship on such
person; and
(B) such person did not intend, by
engaging in such activity, to induce,
enable, facilitate, or conceal infringe-
ment of a right under title 17, United
States Code.
(2) DIGITAL TRANSMISSIONS.—
(A) If a digital transmission stand-
ard for the placement of copyright
management information for a cat-
egory of works is set in a voluntary,
consensus standard-setting process
involving a representative cross-sec-
tion of broadcast stations or cable
systems and copyright owners of a
category of works that are intended
for public performance by such sta-
tions or systems, a person identified
in paragraph (1) shall not be liable
for a violation of subsection (b) with
respect to the particular copyright
management information addressed
by such standard if—
(i) the placement of such in-
formation by someone other than
such person is not in accordance
with such standard; and
(ii) 
the 
activity 
that 
con-
stitutes such violation is not in-
tended to induce, enable, facili-
tate, or conceal infringement of a
right under title 17, United States
Code.
(B) Until a digital transmission
standard has been set pursuant to
subparagraph (A) with respect to the
placement of copyright management
information for a category or works,
a person identified in paragraph (1)
shall not be liable for a violation of
subsection (b) with respect to such
copyright management information,
if the activity that constitutes such
violation is not intended to induce,
enable, facilitate, or conceal infringe-
ment of a right under title 17, United
States Code, and if—
(i) the transmission of such
information 
by 
such 
person
would result in a perceptible vis-
ual or aural degradation of the
digital signal; or
(ii) the transmission of such
information 
by 
such 
person
would conflict with—
(I) an applicable govern-
ment regulation relating to
transmission of information
in a digital signal;
(II) an applicable indus-
try-wide standard relating to
the transmission of informa-
tion in a digital signal that
was adopted by a voluntary
consensus 
standards 
body
prior to the effective date of
this title; or
(III) an applicable indus-
try-wide standard relating to
the transmission of informa-
tion in a digital signal that
was adopted in a voluntary,
consensus 
standards-setting
process open to participation
by a representative cross-sec-
tion of broadcast stations or
cable systems and copyright
owners of a category of works
that are intended for public
performance by such stations
or systems.
(3) DEFINITIONS.—As used in this sub-
section—
(A) the term ‘‘broadcast station’’
has the meaning given that term in
section 3 of the Communications Act
of 1934 (47 U.S.C. 153)); and
(B) the term ‘‘cable system’’ has
the meaning given that term in sec-
tion 602 of the Communications Act
of 1934 (47 U.S.C. 522)).
SEC. 104. CIVIL REMEDIES.
(a) CIVIL ACTIONS.—Any person injured by
a violation of section 102 or 103, or of any reg-
ulation issued under section 102(a)(1), may
bring a civil action in an appropriate United
States district court for such violation.
(b) POWERS OF THE COURT.—In an action
brought under subsection (a), the court—
(1) may grant temporary and perma-
nent injunctions on such terms as it
deems reasonable to prevent or restrain a
violation, but in no event shall impose a
prior restraint on free speech or the
press protected under the 1st amendment
to the Constitution;
(2) at any time while an action is
pending, may order the impounding, on
such terms as it deems reasonable, of any
device or product that is in the custody
or control of the alleged violator and that
the court has reasonable cause to believe
was involved in a violation;
(3) may award damages under sub-
section (c);
(4) in its discretion may allow the re-
covery of costs by or against any party
other than the United States or an officer
thereof;
(5) in its discretion may award rea-
sonable attorney’s fees to the prevailing
party; and
(6) may, as part of a final judgment or
decree finding a violation, order the re-
medial modification or the destruction of
any device or product involved in the vio-
lation that is in the custody or control of
the violator or has been impounded
under paragraph (2).
(c) AWARD OF DAMAGES.—
(1) IN GENERAL.—Except as otherwise
provided in this title, a person commit-
ting a violation of section 102 or 103, or
of any regulation issued under section
102(a)(1), is liable for either—
(A) the actual damages and any
additional profits of the violator, as
provided in paragraph (2), or
(B) statutory damages, as pro-
vided in paragraph (3).
(2) ACTUAL DAMAGES.—The court shall
award to the complaining party the ac-
tual damages suffered by the party as a
result of the violation, and any profits of
the violator that are attributable to the
violation and are not taken into account
in computing the actual damages, if the
complaining party elects such damages at
any time before final judgment is en-
tered.
(3) STATUTORY DAMAGES.—
(A) At any time before final judg-
ment is entered, a complaining party
may elect to recover an award of stat-
utory damages for each violation of
section 102, or of a regulation issued
under section 102(a)(1), in the sum of
not less than $200 or more than
$2,500 per act of circumvention, de-
vice, product, component, offer, or
performance of service, as the court
considers just.
(B) At any time before final judg-
ment is entered, a complaining party
may elect to recover an award of stat-
utory damages for each violation of
section 103 in the sum of not less
than $2,500 or more than $25,000.
(4) REPEATED VIOLATIONS.—In any case
in which the injured party sustains the
burden of proving, and the court finds,
that a person has violated section 102 or
103, or any regulation issued under sec-
tion 102(a)(1), within three years after a
final judgment was entered against the
person for another such violation, the
court may increase the award of damages
up to triple the amount that would other-
wise be awarded, as the court considers
just.
(5) INNOCENT VIOLATIONS.—
(A) IN GENERAL.—The court in its
discretion may reduce or remit the
total award of damages in any case in
which the violator sustains the bur-
den of proving, and the court finds,
that the violator was not aware and
had no reason to believe that its acts
constituted a violation.
(B) NONPROFIT LIBRARY, ARCHIVES,
OR EDUCATIONAL INSTITUTIONS.—In the
case of a nonprofit library, archives,
or educational institution, the court
shall remit damages in any case in
which the library, archives, or edu-
cational institution sustains the bur-
den of proving, and the court finds,
that the library, archives, or edu-
cational institution was not aware
and had no reason to believe that its
acts constituted a violation.
SEC. 105. CRIMINAL OFFENSES AND PENALTIES.
(a) IN GENERAL.—Any person who violates
section 102 or 103, or any regulation issued
under section 102(a)(1), willfully and for pur-
poses of commercial advantage or private fi-
nancial gain—
(1) shall be fined not more than
$500,000 or imprisoned for not more than
5 years, or both, for the first offense; and
(2) shall be fined not more than
$1,000,000 or imprisoned for not more
than 10 years, or both, for any subse-
quent offense.
(b) LIMITATION
FOR NONPROFIT LIBRARY,
ARCHIVES, OR EDUCATIONAL INSTITUTION.—Sub-
section (a) shall not apply to a nonprofit li-
brary, archives, or educational institution.
(c) STATUTE OF LIMITATIONS.—No criminal
proceeding shall be brought under this sec-
tion unless such proceeding is commenced
within five years after the cause of action
arose.
SEC. 106. SAVINGS CLAUSE.
Nothing in this title abrogates, dimin-
ishes, or weakens the provisions of, nor pro-
vides any defense or element of mitigation in
a criminal prosecution or civil action under,
any Federal or State law that prevents the
violation of the privacy of an individual in
connection with the individual’s use of the
Internet.
SEC. 107. DEVELOPMENT AND IMPLEMENTATION OF TECH-
NOLOGICAL PROTECTION MEASURES.
(a) STATEMENT OF CONGRESSIONAL POLICY
AND OBJECTIVE.—It is the sense of the Con-
gress that technological protection measures
play a crucial role in safeguarding the inter-
ests of both copyright owners and lawful
users of copyrighted works in digital formats,
by facilitating lawful uses of such works while
protecting the private property interests of
holders of rights under title 17, United States
Code. Accordingly, the expeditious implemen-
tation of such measures, developed by the pri-
vate sector through voluntary industry-led
processes, is a key factor in realizing the full
benefits of making available copyrighted
works through digital networks, including the
benefits set forth in this section.
(b) 
TECHNOLOGICAL
PROTECTION
MEAS-
URES.—The technological protection measures
referred to in subsection (a) shall include, but
not be limited to, those which—
(1) enable nonprofit libraries, for non-
profit purposes, to continue to lend to li-
brary users copies or phonorecords that
such libraries have lawfully acquired, in-
cluding the lending of such copies or
phonorecords in digital formats in a man-
ner that prevents infringement;
(2) effectively protect against the in-
fringement of exclusive rights under title
17, United States Code, and facilitate the
exercise of those exclusive rights; and
(3) promote the development and im-
plementation of diverse methods, mecha-
nisms, and arrangements in the market-
place for making available copyrighted
works in digital formats which provide
opportunities for individual members of
the public to make lawful uses of copy-
righted works in digital formats.
(c) PROCEDURES FOR DEVELOPING AND IM-
PLEMENTING
TECHNOLOGICAL
PROTECTION
MEASURES.—The 
technological 
protection
measures whose development and implemen-
tation the Congress anticipates are those
which—
(1) are developed pursuant to a broad
consensus in an open, fair, voluntary, and
multi-industry process;
(2) are made available on reasonable
and nondiscriminatory terms; and
(3) do not impose substantial costs or
burdens on copyright owners or on man-
ufacturers of hardware or software used
in conjunction with copyrighted works in
digital formats.
(d) OVERSIGHT
AND REPORTING.—(1) The
Secretary of Commerce, in consultation with
the Assistant Secretary of Commerce for Com-
munications and Information and the Reg-
ister of Copyrights, shall review the impact of
the enactment of section 102 of this Act on the
access of individual users to copyrighted
works in digital formats and shall report an-
nually thereon to the Committees on Com-
merce and on the Judiciary of the House of
Representatives and the Committees on Com-
merce, Science, and Transportation and on
the Judiciary of the Senate.
(2) Each report under paragraph (1) shall
address the following issues:
(A) The status of the development and
implementation of technological protec-
tion measures, including measures that
advance the objectives of this section,
and the effectiveness of technological
protection measures in protecting the
private property interests of copyright
owners under title 17, United States
Code.
(B) The degree to which individual
lawful users of copyrighted works—
(i) have access to the Internet and
digital networks generally;
(ii) are dependent upon such ac-
cess for their use of copyrighted
works;
(iii) have available to them other
channels for obtaining and using
copyrighted works, other than the
Internet and digital networks gen-
erally;
(iv) are required to pay copyright
owners or intermediaries for each
lawful use of copyrighted works in
digital formats to which they have ac-
cess; and
(v) are able to utilize nonprofit li-
braries to obtain access, through bor-
rowing without payment by the user,
to copyrighted works in digital for-
mats.
(C) The degree to which infringement
of copyrighted works in digital formats is
occurring.
(D) Whether and the extent to which
section 102, and the regulations issued
under section 102(a)(1), are asserted as a
basis for liability in claims brought
against persons conducting research and
development, including reverse engineer-
ing of copyrighted works, and the extent
to which such claims constitute a serious
impediment to the development and pro-
duction of competitive goods and serv-
ices.
(E) The degree to which individual
users of copyrighted materials in digital
formats are able effectively to protect
themselves against the use of techno-
logical protection measures to carry out
or facilitate the undisclosed collection
and dissemination of personally identify-
ing information concerning the access to
and use of such materials by such users.
(F) Such other issues as the Secretary
of Commerce, in consultation with the
Assistant Secretary of Commerce for
Communications and Information and
the Register of Copyrights, identifies as
relevant to the impact of the enactment
of section 102 on the access of individual
users to copyrighted works in digital for-
mats.
(3) The first report under this subsection
shall be submitted not later than one year
after the date of the enactment of this Act,
and the last such report shall be submitted
not later than three years after the date of the
enactment of this Act.
(4) The reports under this subsection may
include such recommendations for additional
legislative action as the Secretary of Com-
merce and the Register of Copyrights con-
sider advisable in order to further the objec-
tives of this section.
SEC. 108. TECHNICAL AMENDMENTS.
(a) DEFINITIONS.—Section 101 of title 17,
United States Code, is amended—
(1) by striking the definition of
‘‘Berne Convention work’’;
(2) in the definition of ‘‘The ‘country
of origin’ of a Berne Convention work’’—
(A) by striking ‘‘The ‘country of
origin’ of a Berne Convention work,
for purposes of section 411, is the
United States if’’ and inserting ‘‘For
purposes of section 411, a work is a
‘United States work’ only if’’;
(B) in paragraph (1)—
(i) in subparagraph (B) by
striking ‘‘nation or nations adher-
ing to the Berne Convention’’ and
inserting ‘‘treaty party or par-
ties’’;
(ii) in subparagraph (C) by
striking ‘‘does not adhere to the
Berne Convention’’ and inserting
‘‘is not a treaty party’’; and
(iii) in subparagraph (D) by
striking ‘‘does not adhere to the
Berne Convention’’ and inserting
‘‘is not a treaty party’’; and
(C) in the matter following para-
graph (3) by striking ‘‘For the pur-
poses of section 411, the ‘country of
origin’ of any other Berne Convention
work is not the United States.’’;
(3) by inserting after the definition of
‘‘fixed’’ the following:
‘‘The ‘Geneva Phonograms Conven-
tion’ is the Convention for the Protection
of Producers of Phonograms Against Un-
authorized 
Duplication 
of 
Their
Phonograms, concluded at Geneva, Swit-
zerland, on October 29, 1971.’’;
(4) by inserting after the definition of
‘‘including’’ the following:
‘‘An ‘international agreement’ is—
‘‘(1) the Universal Copyright Con-
vention;
‘‘(2) the Geneva Phonograms Con-
vention;
‘‘(3) the Berne Convention;
‘‘(4) the WTO Agreement;
‘‘(5) the WIPO Copyright Treaty;
‘‘(6) the WIPO Performances and
Phonograms Treaty; and
‘‘(7) any other copyright treaty to
which the United States is a party.’’;
(5) by inserting after the definition of
‘‘transmit’’ the following:
‘‘A ‘treaty party’ is a country or inter-
governmental organization other than
the United States that is a party to an
international agreement.’’;
(6) by inserting after the definition of
‘‘widow’’ the following:
‘‘The ‘WIPO Copyright Treaty’ is the
WIPO Copyright Treaty concluded at Ge-
neva, 
Switzerland, 
on 
December 
20,
1996.’’;
(7) by inserting after the definition of
‘‘The ‘WIPO Copyright Treaty’ ’’ the fol-
lowing:
‘‘The 
‘WIPO 
Performances 
and
Phonograms Treaty’ is the WIPO Per-
formances and Phonograms Treaty con-
cluded at Geneva, Switzerland, on De-
cember 20, 1996.’’; and
(8) by inserting after the definition of
‘‘work made for hire’’ the following:
‘‘The terms ‘WTO Agreement’ and
‘WTO member country’ have the mean-
ings given those terms in paragraphs (9)
and (10), respectively, of section 2 of the
Uruguay Round Agreements Act.’’.
(b) SUBJECT MATTER
OF COPYRIGHT; NA-
TIONAL ORIGIN.—Section 104 of title 17, United
States Code, is amended—
(1) in subsection (b)—
(A) in paragraph (1) by striking
‘‘foreign nation that is a party to a
copyright treaty to which the United
States is also a party’’ and inserting
‘‘treaty party’’;
(B) in paragraph (2) by striking
‘‘party to the Universal Copyright
Convention’’ and inserting ‘‘treaty
party’’;
(C) by redesignating paragraph
(5) as paragraph (6);
(D) by redesignating paragraph
(3) as paragraph (5) and inserting it
after paragraph (4);
(E) by inserting after paragraph
(2) the following:
‘‘(3) the work is a sound recording
that was first fixed in a treaty party; or’’;
(F) in paragraph (4) by striking
‘‘Berne Convention work’’ and insert-
ing ‘‘pictorial, graphic, or sculptural
work that is incorporated in a build-
ing or other structure, or an architec-
tural work that is embodied in a
building and the building or struc-
ture is located in the United States or
a treaty party’’; and
(G) by inserting after paragraph
(6), as so redesignated, the following:
‘‘For purposes of paragraph (2), a work that
is published in the United States or a treaty
party within 30 days after publication in a
foreign nation that is not a treaty party shall
be considered to be first published in the
United States or such treaty party, as the case
may be.’’; and
(2) by adding at the end the following
new subsection:
‘‘(d) EFFECT OF PHONOGRAMS TREATIES.—
Notwithstanding the provisions of subsection
(b), no works other than sound recordings
shall be eligible for protection under this title
solely by virtue of the adherence of the
United States to the Geneva Phonograms Con-
vention or the WIPO Performances and
Phonograms Treaty.’’.
(c) COPYRIGHT IN RESTORED WORKS.—Sec-
tion 104A(h) of title 17, United States Code, is
amended—
(1) in paragraph (1), by striking sub-
paragraphs (A) and (B) and inserting the
following:
‘‘(A) a nation adhering to the
Berne Convention;
‘‘(B) a WTO member country;
‘‘(C) a nation adhering to the
WIPO Copyright Treaty;
‘‘(D) a nation adhering to the
WIPO Performances and Phonograms
Treaty; or
‘‘(E) subject to a Presidential
proclamation under subsection (g).’’;
(2) by amending paragraph (3) to
read as follows:
‘‘(3) The term ‘eligible country’ means
a nation, other than the United States,
that—
‘‘(A) becomes a WTO member
country after the date of the enact-
ment of the Uruguay Round Agree-
ments Act;
‘‘(B) on such date of enactment is,
or after such date of enactment be-
comes, a nation adhering to the
Berne Convention;
‘‘(C) adheres to the WIPO Copy-
right Treaty;
‘‘(D) adheres to the WIPO Per-
formances and Phonograms Treaty;
or
‘‘(E) after such date of enactment
becomes subject to a proclamation
under subsection (g).’’;
(3) in paragraph (6)—
(A) in subparagraph (C)(iii) by
striking ‘‘and’’ after the semicolon;
(B) at the end of subparagraph
(D) by striking the period and insert-
ing ‘‘; and’’; and
(C) by adding after subparagraph
(D) the following:
‘‘(E) if the source country for the
work is an eligible country solely by
virtue of its adherence to the WIPO
Performances and Phonograms Trea-
ty, is a sound recording.’’;
(4) in paragraph (8)(B)(i)—
(A) by inserting ‘‘of which’’ before
‘‘the majority’’; and
(B) by striking ‘‘of eligible coun-
tries’’; and
(5) by striking paragraph (9).
(d) REGISTRATION
AND INFRINGEMENT AC-
TIONS.—Section 411(a) of title 17, United
States Code, is amended in the first sen-
tence—
(1) by striking ‘‘actions for infringe-
ment of copyright in Berne Convention
works whose country of origin is not the
United States and’’; and
(2) by inserting ‘‘United States’’ after
‘‘no action for infringement of the copy-
right in any’’.
(e) 
STATUTE
OF
LIMITATIONS.—Section
507(a) of title 17, United State Code, is amend-
ed by striking ‘‘No’’ and inserting ‘‘Except as
expressly provided otherwise in this title, no’’.
SEC. 109. EFFECTIVE DATE.
(a) IN GENERAL.—Subject to subsection (b),
the amendments made by this title shall take
effect on the date of the enactment of this Act.
(b) AMENDMENTS
RELATING
TO
CERTAIN
INTERNATIONAL AGREEMENTS.—(1) The follow-
ing shall take effect upon the entry into force
of the WIPO Copyright Treaty with respect to
the United States:
(A) Paragraph (5) of the definition of
‘‘international agreement’’ contained in
section 101 of title 17, United States Code,
as amended by section 108(a)(4) of this
Act.
(B) The amendment made by section
108(a)(6) of this Act.
(C) 
Subparagraph 
(C) 
of 
section
104A(h)(1) of title 17, United States Code,
as amended by section 108(c)(1) of this
Act.
(D) 
Subparagraph 
(C) 
of 
section
104A(h)(3) of title 17, United States Code,
as amended by section 108(c)(2) of this
Act.
(2) The following shall take effect upon
the entry into force of the WIPO Perform-
ances and Phonograms Treaty with respect to
the United States:
(A) Paragraph (6) of the definition of
‘‘international agreement’’ contained in
section 101 of title 17, United States Code,
as amended by section 108(a)(4) of this
Act.
(B) The amendment made by section
108(a)(7) of this Act.
(C) The amendment made by section
108(b)(2) of this Act.
(D) 
Subparagraph 
(D) 
of 
section
104A(h)(1) of title 17, United States Code,
as amended by section 108(c)(1) of this
Act.
(E) 
Subparagraph 
(D) 
of 
section
104A(h)(3) of title 17, United States Code,
as amended by section 108(c)(2) of this
Act.
(F) The amendments made by section
108(c)(3) of this Act.
TITLE II—INTERNET COPYRIGHT
INFRINGEMENT LIABILITY
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Internet
Copyright Infringement Liability Clarifica-
tion Act of 1998’’.
SEC. 202. LIMITATIONS ON LIABILITY FOR INTERNET COPY-
RIGHT INFRINGEMENT.
(a) IN GENERAL.—Chapter 5 of title 17,
United States Code, is amended by adding
after section 511 the following new section:
‘‘§ 512. Liability of service providers for online in-
fringement of copyright
‘‘(a) DIGITAL NETWORK COMMUNICATIONS.—
A service provider shall not be liable for mon-
etary relief, or except as provided in sub-
section (i) for injunctive or other equitable re-
lief, for infringement for the provider’s trans-
mitting, routing, or providing connections for,
material through a system or network con-
trolled or operated by or for the service pro-
vider, or the intermediate and transient stor-
age of such material in the course of such
transmitting, routing or providing connec-
tions, if—
‘‘(1) it was initiated by or at the direc-
tion of a person other than the service
provider;
‘‘(2) it is carried out through an auto-
matic technical process without selection
of such material by the service provider;
‘‘(3) the service provider does not se-
lect the recipients of such material ex-
cept as an automatic response to the re-
quest of another;
‘‘(4) no such copy of such material
made by the service provider is main-
tained on the system or network in a
manner ordinarily accessible to anyone
other than anticipated recipients, and no
such copy is maintained on the system or
network in a manner ordinarily acces-
sible to the anticipated recipients for a
longer period than is reasonably nec-
essary for the communication; and
‘‘(5) the material is transmitted with-
out modification to its content.
‘‘(b) SYSTEM CACHING.—A service provider
shall not be liable for monetary relief, or ex-
cept as provided in subsection (i) for injunc-
tive or other equitable relief, for infringement
for the intermediate and temporary storage of
material on the system or network controlled
or operated by or for the service provider:
Provided, That—
‘‘(1) such material is made available
online by a person other than such serv-
ice provider,
‘‘(2) such material is transmitted from
the person described in paragraph (1)
through such system or network to some-
one other than that person at the direc-
tion of such other person,
‘‘(3) the storage is carried out through
an automatic technical process for the
purpose of making such material avail-
able to users of such system or network
who subsequently request access to that
material from the person described in
paragraph (1):
Provided further, That—
‘‘(4) such material is transmitted to
such subsequent users without modifica-
tion to its content from the manner in
which the material otherwise was trans-
mitted from the person described in para-
graph (1);
‘‘(5) such service provider complies
with rules concerning the refreshing, re-
loading or other updating of such mate-
rial when specified by the person making
that material available online in accord-
ance with an accepted industry standard
data communications protocol for the
system or network through which that
person makes the material available: Pro-
vided further, That the rules are not used
by the person described in paragraph (1)
to prevent or unreasonably impair such
intermediate storage;
‘‘(6) such service provider does not
interfere with the ability of technology
associated with such material that re-
turns to the person described in para-
graph (1) the information that would
have been available to such person if
such material had been obtained by such
subsequent users directly from such per-
son: Provided further, That such tech-
nology—
‘‘(A) does not significantly inter-
fere with the performance of the pro-
vider’s system or network or with the
intermediate storage of the material;
‘‘(B) is consistent with accepted
industry 
standard 
communications
protocols; and
‘‘(C) does not extract information
from the provider’s system or net-
work other than the information that
would have been available to such
person if such material had been
accessed by such users directly from
such person;
‘‘(7) either—
‘‘(A) the person described in para-
graph (1) does not currently condi-
tion access to such material; or
‘‘(B) if access to such material is
so conditioned by such person, by a
current 
individual 
pre-condition,
such as a pre-condition based on pay-
ment of a fee, or provision of a pass-
word or other information, the serv-
ice provider permits access to the
stored material in significant part
only to users of its system or network
that have been so authorized and
only in accordance with those condi-
tions; and
‘‘(8) if the person described in para-
graph (1) makes that material available
online without the authorization of the
copyright owner, then the service pro-
vider responds expeditiously to remove,
or disable access to, the material that is
claimed to be infringing upon notifica-
tion of claimed infringements described
in subsection (c)(3): Provided further,
That the material has previously been re-
moved from the originating site, and the
party giving the notification includes in
the notification a statement confirming
that such material has been removed or
access to it has been disabled or ordered
to be removed or have access disabled.
‘‘(c) INFORMATION STORED ON SERVICE PRO-
VIDERS.—
‘‘(1) IN GENERAL.—A service provider
shall not be liable for monetary relief, or
except as provided in subsection (i) for
injunctive or other equitable relief, for
infringement for the storage at the direc-
tion of a user of material that resides on
a system or network controlled or oper-
ated by or for the service provider, if the
service provider—
‘‘(A)(i) 
does 
not 
have 
actual
knowledge that the material or activ-
ity is infringing,
‘‘(ii) in the absence of such actual
knowledge, is not aware of facts or
circumstances from which infringing
activity is apparent, or
‘‘(iii) 
if 
upon 
obtaining 
such
knowledge or awareness, the service
provider acts expeditiously to remove
or disable access to, the material;
‘‘(B) does not receive a financial
benefit directly attributable to the in-
fringing activity, where the service
provider has the right and ability to
control such activity; and
‘‘(C) in the instance of a notifica-
tion of claimed infringement as de-
scribed in paragraph (3), responds ex-
peditiously to remove, or disable ac-
cess to, the material that is claimed
to be infringing or to be the subject
of infringing activity.
‘‘(2) DESIGNATED
AGENT.—The limita-
tions on liability established in this sub-
section apply only if the service provider
has designated an agent to receive notifi-
cations 
of 
claimed 
infringement 
de-
scribed in paragraph (3), by substantially
making the name, address, phone num-
ber, electronic mail address of such
agent, and other contact information
deemed appropriate by the Register of
Copyrights, available through its service,
including on its website, and by provid-
ing such information to the Copyright Of-
fice. The Register of Copyrights shall
maintain a current directory of agents
available to the public for inspection, in-
cluding through the Internet, in both
electronic and hard copy formats.
‘‘(3) ELEMENTS OF NOTIFICATION.—
‘‘(A) To be effective under this
subsection, a notification of claimed
infringement means any written com-
munication provided to the service
provider’s designated agent that in-
cludes substantially the following—
‘‘(i) a physical or electronic
signature of a person authorized
to act on behalf of the owner of
an exclusive right that is alleg-
edly infringed;
‘‘(ii) identification of the copy-
righted work claimed to have
been infringed, or, if multiple
such works at a single online site
are covered by a single notifica-
tion, a representative list of such
works at that site;
‘‘(iii) identification of the ma-
terial that is claimed to be in-
fringing or to be the subject of in-
fringing activity that is to be re-
moved or access to which is to be
disabled, and information reason-
ably sufficient to permit the serv-
ice provider to locate the mate-
rial;
‘‘(iv) information reasonably
sufficient to permit the service
provider to contact the complain-
ing party, such as an address,
telephone number, and, if avail-
able an electronic mail address at
which the complaining party may
be contacted;
‘‘(v) a statement that the com-
plaining party has a good faith
belief that use of the material in
the manner complained of is not
authorized 
by 
the 
copyright
owner, or its agent, or the law;
and
‘‘(vi) a statement that the in-
formation in the notification is
accurate, and under penalty of
perjury, 
that 
the 
complaining
party has the authority to enforce
the 
owner’s 
rights 
that 
are
claimed to be infringed.
‘‘(B) A notification from the copy-
right owner or from a person author-
ized to act on behalf of the copyright
owner that fails substantially to con-
form to the provisions of paragraph
(3)(A) shall not be considered under
paragraph 
(1)(A) 
in 
determining
whether a service provider has actual
knowledge or is aware of facts or cir-
cumstances from which infringing ac-
tivity is apparent: Provided, That the
provider promptly attempts to con-
tact the complaining party or takes
other reasonable steps to assist in the
receipt of notice under paragraph
(3)(A) when the notice is provided to
the 
service 
provider’s 
designated
agent and substantially satisfies the
provisions of paragraphs (3)(A) (ii),
(iii), and (iv).
‘‘(d) 
INFORMATION
LOCATION
TOOLS.—A
service provider shall not be liable for mone-
tary relief, or except as provided in sub-
section (i) for injunctive or other equitable re-
lief, for infringement for the provider refer-
ring or linking users to an online location
containing infringing material or activity by
using information location tools, including a
directory, index, reference, pointer or hyper-
text link, if the provider—
‘‘(1) does not have actual knowledge
that the material or activity is infringing
or, in the absence of such actual knowl-
edge, is not aware of facts or cir-
cumstances from which infringing activ-
ity is apparent;
‘‘(2) does not receive a financial bene-
fit directly attributable to the infringing
activity, where the service provider has
the right and ability to control such ac-
tivity; and
‘‘(3) responds expeditiously to remove
or disable the reference or link upon no-
tification of claimed infringement as de-
scribed in subsection (c)(3): Provided,
That for the purposes of this paragraph,
the element in subsection (c)(3)(A)(iii)
shall be identification of the reference or
link, to material or activity claimed to be
infringing, that is to be removed or ac-
cess to which is to be disabled, and infor-
mation reasonably sufficient to permit
the service provider to locate such ref-
erence or link.
‘‘(e) 
MISREPRESENTATIONS.—Any 
person
who 
knowingly 
materially 
misrepresents
under this section—
‘‘(1) that material or activity is in-
fringing, or
‘‘(2) that material or activity was re-
moved 
or 
disabled 
by 
mistake 
or
misidentification,
shall be liable for any damages, including
costs and attorneys’ fees, incurred by the al-
leged infringer, by any copyright owner or
copyright owner’s authorized licensee, or by
the service provider, who is injured by such
misrepresentation, as the result of the service
provider relying upon such misrepresenta-
tion in removing or disabling access to the
material or activity claimed to be infringing,
or in replacing the removed material or ceas-
ing to disable access to it.
‘‘(f) REPLACEMENT
OF REMOVED
OR DIS-
ABLED MATERIAL AND LIMITATION ON OTHER LI-
ABILITY.—
‘‘(1) Subject to paragraph (2) of this
subsection, a service provider shall not
be liable to any person for any claim
based on the service provider’s good faith
disabling of access to, or removal of, ma-
terial or activity claimed to be infringing
or based on facts or circumstances from
which infringing activity is apparent, re-
gardless of whether the material or activ-
ity is ultimately determined to be infring-
ing.
‘‘(2) Paragraph (1) of this subsection
shall not apply with respect to material
residing at the direction of a subscriber
of the service provider on a system or
network controlled or operated by or for
the service provider that is removed, or
to which access is disabled by the service
provider pursuant to a notice provided
under subsection (c)(1)(C), unless the
service provider—
‘‘(A) 
takes 
reasonable 
steps
promptly to notify the subscriber that
it has removed or disabled access to
the material;
‘‘(B) upon receipt of a counter no-
tice as described in paragraph (3),
promptly provides the person who
provided the notice under subsection
(c)(1)(C) with a copy of the counter
notice, and informs such person that
it will replace the removed material
or cease disabling access to it in ten
business days; and
‘‘(C) replaces the removed mate-
rial and ceases disabling access to it
not less than 10, nor more than 14,
business days following receipt of the
counter notice, unless its designated
agent first receives notice from the
person who submitted the notifica-
tion under subsection (c)(1)(C) that
such person has filed an action seek-
ing a court order to restrain the sub-
scriber from engaging in infringing
activity relating to the material on
the service provider’s system or net-
work.
‘‘(3) To be effective under this sub-
section, a counter notification means any
written communication provided to the
service provider’s designated agent that
includes substantially the following:
‘‘(A) A physical or electronic sig-
nature of the subscriber.
‘‘(B) Identification of the material
that has been removed or to which
access has been disabled and the lo-
cation at which such material ap-
peared before it was removed or ac-
cess was disabled.
‘‘(C) A statement under penalty of
perjury that the subscriber has a
good faith belief that the material
was removed or disabled as a result
of mistake or misidentification of the
material to be removed or disabled.
‘‘(D) The subscriber’s name, ad-
dress and telephone number, and a
statement that the subscriber con-
sents to the jurisdiction of Federal
Court for the judicial district in
which the address is located, or if the
subscriber’s address is outside of the
United States, for any judicial district
in which the service provider may be
found, and that the subscriber will
accept service of process from the
person who provided notice under
subsection (c)(1)(C) or agent of such
person.
‘‘(4) A service provider’s compliance
with paragraph (2) shall not subject the
service provider to liability for copyright
infringement with respect to the material
identified in the notice provided under
subsection (c)(1)(C).
‘‘(g) 
IDENTIFICATION
OF
DIRECT
IN-
FRINGER.—The copyright owner or a person
authorized to act on the owner’s behalf may
request an order for release of identification
of an alleged infringer by filing—
‘‘(1) a copy of a notification described
in subsection (c)(3)(A), including a pro-
posed order, and
‘‘(2) a sworn declaration that the pur-
pose of the order is to obtain the identity
of an alleged infringer and that such in-
formation will only be used for the pur-
pose of this title, with the clerk of any
United States district court.
The order shall authorize and order the serv-
ice provider receiving the notification to dis-
close expeditiously to the copyright owner or
person authorized by the copyright owner in-
formation sufficient to identify the alleged di-
rect infringer of the material described in the
notification to the extent such information is
available to the service provider. The order
shall be expeditiously issued if the accom-
panying notification satisfies the provisions
of subsection (c)(3)(A) and the accompanying
declaration is properly executed. Upon re-
ceipt of the order, either accompanying or
subsequent to the receipt of a notification de-
scribed in subsection (c)(3)(A), a service pro-
vider shall expeditiously give to the copyright
owner or person authorized by the copyright
owner the information required by the order,
notwithstanding any other provision of law
and regardless of whether the service pro-
vider responds to the notification.
‘‘(h) CONDITIONS FOR ELIGIBILITY.—
‘‘(1) 
ACCOMMODATION
OF
TECH-
NOLOGY.—The limitations on liability es-
tablished by this section shall apply only
if the service provider—
‘‘(A) has adopted and reasonably
implemented, and informs subscrib-
ers of the service of, a policy for the
termination of subscribers of the
service who are repeat infringers;
and
‘‘(B) accommodates and does not
interfere 
with 
standard 
technical
measures as defined in this sub-
section.
‘‘(2) DEFINITION.—As used in this sec-
tion, ‘standard technical measures’ are
technical measures, used by copyright
owners to identify or protect copyrighted
works, that—
‘‘(A) have been developed pursu-
ant to a broad consensus of copyright
owners and service providers in an
open, fair, voluntary, multi-industry
standards process;
‘‘(B) are available to any person
on reasonable and nondiscriminatory
terms; and
‘‘(C) do not impose substantial
costs on service providers or substan-
tial burdens on their systems or net-
works.
‘‘(i) INJUNCTIONS.—The following rules
shall apply in the case of any application for
an injunction under section 502 against a
service provider that is not subject to mone-
tary remedies by operation of this section.
‘‘(1) SCOPE OF RELIEF.—
‘‘(A) With respect to conduct other
than that which qualifies for the limi-
tation on remedies as set forth in sub-
section (a), the court may only grant
injunctive relief with respect to a
service provider in one or more of the
following forms—
‘‘(i) an order restraining it
from providing access to infring-
ing material or activity residing
at a particular online site on the
provider’s system or network;
‘‘(ii) an order restraining it
from providing access to an iden-
tified subscriber of the service
provider’s system or network who
is engaging in infringing activity
by terminating the specified ac-
counts of such subscriber; or
‘‘(iii) such other injunctive
remedies as the court may con-
sider necessary to prevent or re-
strain infringement of specified
copyrighted material at a particu-
lar online location: Provided, That
such remedies are the least bur-
densome to the service provider
that are comparably effective for
that purpose.
‘‘(B) If the service provider quali-
fies for the limitation on remedies de-
scribed in subsection (a), the court
may only grant injunctive relief in
one or both of the following forms—
‘‘(i) an order restraining it
from providing access to an iden-
tified subscriber of the service
provider’s system or network who
is using the provider’s service to
engage in infringing activity by
terminating 
the 
specified 
ac-
counts of such subscriber; or
‘‘(ii) an order restraining it
from providing access, by taking
specified 
reasonable 
steps 
to
block access, to a specific, identi-
fied, foreign online location.
‘‘(2) CONSIDERATIONS.—The court, in
considering the relevant criteria for in-
junctive relief under applicable law, shall
consider—
‘‘(A) whether such an injunction,
either alone or in combination with
other such injunctions issued against
the same service provider under this
subsection, would significantly bur-
den either the provider or the oper-
ation of the provider’s system or net-
work;
‘‘(B) the magnitude of the harm
likely to be suffered by the copyright
owner in the digital network environ-
ment if steps are not taken to prevent
or restrain the infringement;
‘‘(C) whether implementation of
such an injunction would be tech-
nically feasible and effective, and
100
would not interfere with access to
noninfringing material at other on-
line locations; and
‘‘(D) whether other less burden-
some and comparably effective means
of preventing or restraining access to
the infringing material are available.
‘‘(3) NOTICE AND EX PARTE ORDERS.—In-
junctive relief under this subsection shall
not be available without notice to the
service provider and an opportunity for
such provider to appear, except for or-
ders ensuring the preservation of evi-
dence or other orders having no material
adverse effect on the operation of the
service provider’s communications net-
work.
‘‘(j) DEFINITIONS.—
‘‘(1)(A) As used in subsection (a), the
term ‘service provider’ means an entity
offering the transmission, routing or pro-
viding of connections for digital online
communications, 
between 
or 
among
points specified by a user, of material of
the user’s choosing, without modification
101
to the content of the material as sent or
received.
‘‘(B) As used in any other subsection
of this section, the term ‘service provider’
means a provider of online services or
network access, or the operator of facili-
ties therefor, and includes an entity de-
scribed in the preceding paragraph of
this subsection.
‘‘(2) As used in this section, the term
‘monetary relief’ means damages, costs,
attorneys’ fees, and any other form of
monetary payment.
‘‘(k) OTHER DEFENSES NOT AFFECTED.—The
failure of a service provider’s conduct to qual-
ify for limitation of liability under this section
shall not bear adversely upon the consider-
ation of a defense by the service provider that
the service provider’s conduct is not infring-
ing under this title or any other defense.
‘‘(l) PROTECTION OF PRIVACY.—Nothing in
this section shall be construed to condition
the applicability of subsections (a) through
(d) on—
102
‘‘(1) a service provider monitoring its
service or affirmatively seeking facts in-
dicating infringing activity except to the
extent consistent with a standard tech-
nical measure complying with the provi-
sions of subsection (h); or
‘‘(2) a service provider accessing, re-
moving, or disabling access to material
where such conduct is prohibited by law.
‘‘(m) RULE OF CONSTRUCTION.—Subsections
(a), (b), (c), and (d) are intended to describe
separate and distinct functions for purposes
of analysis under this section. Whether a serv-
ice provider qualifies for the limitation on li-
ability in any one such subsection shall be
based solely on the criteria in each such sub-
section and shall not affect a determination of
whether such service provider qualifies for
the limitations on liability under any other
such subsection.’’.
(b) CONFORMING AMENDMENT.—The table of
sections for chapter 5 of title 17, United States
Code, is amended by adding at the end the fol-
lowing:
‘‘512. Liability of service providers for online infringement of
copyright.’’.
103
SEC. 203. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER
PROGRAMS.
Section 117 of title 17, United States Code,
is amended—
(1) by striking ‘‘Notwithstanding’’ and in-
serting the following:
‘‘(a) MAKING OF ADDITIONAL COPY OR ADAP-
TATION BY OWNER OF COPY.—Notwithstanding’’;
(2) by striking ‘‘Any exact’’ and inserting
the following:
‘‘(b) LEASE, SALE, OR OTHER TRANSFER OF
ADDITIONAL COPY OR ADAPTATION.—Any exact’’;
and
(3) by adding at the end the following:
‘‘(c) MACHINE MAINTENANCE OR REPAIR.—
Notwithstanding the provisions of section
106, it is not an infringement for the owner or
lessee of a machine to make or authorize the
making of a copy of a computer program if
such copy is made solely by virtue of the acti-
vation of a machine that lawfully contains an
authorized copy of the computer program, for
purposes only of maintenance or repair of
that machine, if—
‘‘(1) such new copy is used in no other
manner and is destroyed immediately
104
after the maintenance or repair is com-
pleted; and
‘‘(2) with respect to any computer
program or part thereof that is not nec-
essary for that machine to be activated,
such program or part thereof is not
accessed or used other than to make such
new copy by virtue of the activation of
the machine.
‘‘(d) DEFINITIONS.—For purposes of this
section—
‘‘(1) the ‘maintenance’ of a machine is
the servicing of the machine in order to
make it work in accordance with its
original specifications and any changes
to those specifications authorized for
that machine; and
‘‘(2) the ‘repair’ of a machine is the re-
storing of the machine to the state of
working in accordance with its original
specifications and any changes to those
specifications authorized for that ma-
chine.’’.
105
SEC. 204. LIABILITY OF EDUCATIONAL INSTITUTIONS FOR
ONLINE INFRINGEMENT OF COPYRIGHT.
(a) RECOMMENDATIONS
BY
REGISTER
OF
COPYRIGHTS.—Not later than six months after
the date of the enactment of this Act, the Reg-
ister of Copyrights, after consultation with
representatives of copyright owners and non-
profit educational institutions, shall submit to
the Congress recommendations regarding the
liability of nonprofit educational institutions
for copyright infringement committed with
the use of computer systems for which such
an institution is a service provider, as that
term is defined in section 512 of title 17,
United States Code (as added by section 202
of this Act), including recommendations for
legislation that the Register of Copyrights
considers appropriate regarding such liabil-
ity, if any.
(b) 
FACTORS.—In 
formulating 
rec-
ommendations under subsection (a), the Reg-
ister of Copyrights shall consider, where rel-
evant—
(1) current law regarding the direct,
vicarious, and contributory liability of
nonprofit educational institutions for in-
106
fringement by faculty, administrative em-
ployees, students, graduate students, and
students who are employees of such non-
profit educational institutions;
(2) other users of their computer sys-
tems for whom nonprofit educational in-
stitutions may be responsible;
(3) the unique nature of the relation-
ship between nonprofit educational insti-
tutions and faculty;
(4) 
what 
policies 
nonprofit 
edu-
cational institutions should adopt regard-
ing copyright infringement by users of
their computer systems;
(5) what technological measures are
available to monitor infringing uses;
(6) what monitoring of their com-
puter systems by nonprofit educational
institutions is appropriate;
(7) what due process nonprofit edu-
cational institutions should afford in dis-
abling access by users of their computer
systems who are alleged to have commit-
ted copyright infringement;
107
(8) what distinctions, if any, should
be drawn between computer systems
which may be accessed from outside the
nonprofit 
educational 
systems, 
those
which may not, and combinations there-
of;
(9) the tradition of academic freedom;
and
(10) such other issues relating to the
liability of nonprofit educational institu-
tions for copyright infringement commit-
ted with the use of computer systems for
which such an institution is a service
provider that the Register considers ap-
propriate.
SEC. 205. EVALUATION OF IMPACT OF COPYRIGHT LAW
AND AMENDMENTS ON ELECTRONIC COM-
MERCE 
AND 
TECHNOLOGICAL 
DEVELOP-
MENT.
(a) FINDINGS.—In order to maintain strong
protection for intellectual property and pro-
mote the development of electronic commerce
and the technologies to support that com-
merce, the Congress must have accurate and
current information on the effects of intellec-
108
tual property protection on electronic com-
merce and technology. The emergence of digi-
tal technology and the proliferation of copy-
righted works in digital media, along with the
amendments to copyright law contained in
this Act, make it appropriate for the Congress
to review these issues to ensure that neither
copyright law nor electronic commerce inhib-
its the development of the other.
(b) EVALUATION
BY SECRETARY
OF COM-
MERCE.—The Secretary of Commerce, in con-
sultation with the Assistant Secretary of Com-
merce for Communications and Information
and the Register of Copyrights, shall evalu-
ate—
(1) the effects of this Act and the
amendments made by this Act on the de-
velopment of electronic commerce and
associated technology; and
(2) the relationship between existing
and emergent technology and existing
copyright law.
(c) REPORT TO CONGRESS.—The Secretary
of Commerce shall, not later than 1 year after
the date of the enactment of this Act, submit
109
to the Congress a report on the evaluation
conducted under subsection (b), including
any legislative recommendations the Sec-
retary may have.
SEC. 206. EFFECTIVE DATE.
This title and the amendments made by
this title shall take effect on the date of the
enactment of this Act.
TITLE 
III—EPHEMERAL 
RE-
CORDINGS; 
DISTANCE 
EDU-
CATION; EXEMPTION FOR LI-
BRARIES AND ARCHIVES
SEC. 301. EPHEMERAL RECORDINGS.
Section 112(a) of title 17, United States
Code, is amended—
(1) by redesignating paragraphs (1),
(2), and (3) as subparagraphs (A), (B), and
(C), respectively;
(2) by inserting ‘‘(1)’’ after ‘‘(a)’’; and
(3) by inserting after ‘‘114(a),’’ the fol-
lowing: ‘‘or for a transmitting organiza-
tion that is a broadcast radio or tele-
vision station licensed as such by the
Federal 
Communications 
Commission
that broadcasts a performance of a sound
110
recording in a digital format on a non-
subscription basis,’’; and
(4) by adding at the end the follow-
ing:
‘‘(2) In a case in which a transmitting or-
ganization entitled to make a copy or phono-
record under paragraph (1) in connection
with the transmission to the public of a per-
formance or display of a work described in
that paragraph is prevented from making
such copy or phonorecord by reason of the ap-
plication by the copyright owner of technical
measures that prevent the reproduction of
the work, the copyright owner shall make
available to the transmitting organization the
necessary means for permitting the making of
such copy or phonorecord within the meaning
of that paragraph, if it is technologically fea-
sible and economically reasonable for the
copyright owner to do so. If the copyright
owner fails to do so in a timely manner in
light of the transmitting organization’s rea-
sonable business requirements, the transmit-
ting organization shall not be liable for a vio-
lation of the regulations issued under section
111
102(a)(1)(A) of the WIPO Copyright Treaties
Implementation Act for engaging in such ac-
tivities as are necessary to make such copies
or phonorecords as permitted under para-
graph (1) of this subsection.’’.
SEC. 302. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE
EDUCATION.
(a) RECOMMENDATIONS BY NATIONAL TELE-
COMMUNICATIONS
AND INFORMATION ADMINIS-
TRATION.—Not later than 6 months after the
date of the enactment of this Act, the Assist-
ant Secretary of Commerce for Communica-
tions and Information, after consultation with
representatives of copyright owners, non-
profit educational institutions, and nonprofit
libraries and archives, shall submit to the
Congress recommendations on how to pro-
mote distance education through digital tech-
nologies, including interactive digital net-
works, while maintaining an appropriate bal-
ance between the rights of copyright owners
and the needs of users of copyrighted works.
Such recommendations shall include any leg-
islation the Assistant Secretary considers ap-
propriate to achieve the foregoing objective.
112
(b) 
FACTORS.—In 
formulating 
rec-
ommendations under subsection (a), the As-
sistant Secretary of Commerce for Commu-
nications and Information shall consider—
(1) the need for an exemption from
exclusive rights of copyright owners for
distance education through digital net-
works;
(2) the categories of works to be in-
cluded under any distance education ex-
emption;
(3) the extent of appropriate quan-
titative limitations on the portions of
works that may be used under any dis-
tance education exemption;
(4) the parties who should be entitled
to the benefits of any distance education
exemption;
(5) the parties who should be des-
ignated as eligible recipients of distance
education materials under any distance
education exemption;
(6) whether and what types of techno-
logical measures can or should be em-
ployed to safeguard against unauthorized
113
access to, and use or retention of, copy-
righted materials as a condition to eligi-
bility for any distance education exemp-
tion, including, in light of developing
technological capabilities, the exemption
set out in section 110(2) of title 17, United
States Code;
(7) the extent to which the availabil-
ity of licenses for the use of copyrighted
works in distance education through
interactive digital networks should be
considered in assessing eligibility for any
distance education exemption; and
(8) such other issues relating to dis-
tance education through interactive digi-
tal networks that the Assistant Secretary
considers appropriate.
SEC. 303. EXEMPTION FOR LIBRARIES AND ARCHIVES.
Section 108 of title 17, United States Code,
is amended—
(1) in subsection (a)—
(A) by striking ‘‘Notwithstanding’’
and inserting ‘‘Except as otherwise
provided in this title and notwith-
standing’’;
114
(B) by inserting after ‘‘no more
than one copy or phonorecord of a
work’’ the following: ‘‘, except as pro-
vided in subsections (b) and (c)’’; and
(C) in paragraph (3) by inserting
after ‘‘copyright’’ the following: ‘‘that
appears on the copy or phonorecord
that is reproduced under the provi-
sions of this section, or includes a leg-
end stating that the work may be pro-
tected by copyright if no such notice
can be found on the copy or phono-
record that is reproduced under the
provisions of this section’’;
(2) in subsection (b)—
(A) by striking ‘‘a copy or phono-
record’’ and inserting ‘‘three copies or
phonorecords’’;
(B) 
by 
striking 
‘‘in 
facsimile
form’’; and
(C) by striking ‘‘if the copy or
phonorecord reproduced is currently
in the collections of the library or ar-
chives.’’ and inserting ‘‘if—
115
‘‘(1) the copy or phonorecord repro-
duced is currently in the collections of
the library or archives; and
‘‘(2) any such copy or phonorecord
that is reproduced in digital format is not
otherwise distributed in that format and
is not made available to the public in that
format outside the premises of the library
or archives.’’; and
(3) in subsection (c)—
(A) by striking ‘‘a copy or phono-
record’’ and inserting ‘‘three copies or
phonorecords’’;
(B) 
by 
striking 
‘‘in 
facsimile
form’’;
(C) by inserting ‘‘or if the existing
format in which the work is stored
has become obsolete,’’ after ‘‘stolen,’’;
and
(D) by striking ‘‘if the library or
archives has, after a reasonable ef-
fort, determined that an unused re-
placement cannot be obtained at a
fair price.’’ and inserting ‘‘if—
116
‘‘(1) the library or archives has, after
a reasonable effort, determined that an
unused replacement cannot be obtained
at a fair price; and
‘‘(2) any such copy or phonorecord
that is reproduced in digital format is not
made available to the public in that for-
mat except for use on the premises of the
library or archives in lawful possession
of such copy.’’; and
(E) by adding at the end the fol-
lowing:
‘‘For purposes of this subsection, a format
shall be considered obsolete if the machine or
device necessary to render perceptible a work
stored in that format is no longer manufac-
tured or is no longer reasonably available in
the commercial marketplace.’’.
TITLE IV—RELATED PROVISIONS
SEC. 401. REPORT BY NATIONAL TELECOMMUNICATIONS
AND INFORMATION ADMINISTRATION.
Not later than 6 months after the date of
the enactment of this Act, the Assistant Sec-
retary of Commerce for Communications and
Information shall report to the Congress on
117
appropriate mechanisms to encourage the de-
velopment of access protocols, encryption
testing methods, and security testing methods
which would allow lawful access to, with ap-
propriate safeguards to prevent the unlawful
copying of, encrypted works. The Assistant
Secretary shall include in such report rec-
ommendations on proposed amendments to
this Act, if any, for achieving such result and
for mechanisms to ensure that such safe-
guards—
(1) would be developed pursuant to a
broad consensus of copyright owners and
cryptographic researchers and security
administrators in an open, fair, voluntary
standards-setting process;
(2) to the extent feasible, would pro-
tect copyright owners against the unau-
thorized distribution or reproduction of
their encrypted works; and
(3) would not limit encryption re-
search, to the extent such research is per-
mitted by law as of the enactment of this
Act.