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‘‘(5) In order for a library or archives to qualify for
the exemption under this subsection, the collections of that
library or archives shall be—
‘‘(A) open to the public; or
‘‘(B) available not only to researchers affiliated
with the library or archives or with the institution of
which it is a part, but also to other persons doing re-
search in a specialized field.
‘‘(e) LAW ENFORCEMENT AND INTELLIGENCE ACTIVI-
TIES.—This section does not prohibit any lawfully author-
ized investigative, protective, or intelligence activity of an
officer, agent or employee of the United States, a State, or
a political subdivision of a State, or a person acting pursu-
ant to a contract with such entities.
‘‘(f) Notwithstanding the provisions of subsection
(a)(1), a person who has lawfully obtained the right to use
a copy of a computer program may circumvent a techno-
logical protection measure that effectively controls access to
a particular portion of that program for the sole purpose
of identifying and analyzing those elements of the program
that are necessary to achieve interoperability of an inde-
pendently created computer program with other programs,
and that have not previously been readily available to the
person engaging in the circumvention, to the extent any
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such acts of identification and analysis do not constitute
infringement under this title.
‘‘(g) Notwithstanding the provisions of subsections
(a)(2) and (b), a person may develop and employ techno-
logical means to circumvent for the identification and anal-
ysis described in subsection (f), or for the limited purpose
of achieving interoperability of an independently created
computer program with other programs, where such means
are necessary to achieve such interoperability, to the extent
that doing so does not constitute infringement under this
title.
‘‘(h) The information acquired through the acts per-
mitted under subsection (f), and the means permitted under
subsection (g), may be made available to others if the person
referred to in subsections (f) or (g) provides such informa-
tion or means solely for the purpose of achieving interoper-
ability of an independently created computer program with
other programs, and to the extent that doing so does not
constitute infringement under this title, or violate applica-
ble law other than this title.
‘‘(i) For purposes of subsections (f), (g), and (h), the
term ‘‘interoperability’’ means the ability of computer pro-
grams to exchange information, and for such programs mu-
tually to use the information which has been exchanged.
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‘‘(j) In applying subsection (a) to a component or part,
the court may consider the necessity for its intended and
actual incorporation in a technology, product, service or de-
vice, which (i) does not itself violate the provisions of this
chapter and (ii) has the sole purpose to prevent the access
of minors to material on the Internet.
‘‘§ 1202. Integrity of copyright management informa-
tion
‘‘(a) FALSE
COPYRIGHT
MANAGEMENT
INFORMA-
TION.—No person shall knowingly and with the intent to
induce, enable, facilitate or conceal infringement—
‘‘(1) provide copyright management information
that is false, or
‘‘(2) distribute or import for distribution copy-
right management information that is false.
‘‘(b) REMOVAL OR ALTERATION OF COPYRIGHT MAN-
AGEMENT INFORMATION.—No person shall, without the au-
thority of the copyright owner or the law—
‘‘(1) intentionally remove or alter any copyright
management information,
‘‘(2) distribute or import for distribution copy-
right management information knowing that the
copyright management information has been removed
or altered without authority of the copyright owner or
the law, or
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‘‘(3) distribute, import for distribution, or pub-
licly perform works, copies of works, or phonorecords,
knowing that copyright management information has
been removed or altered without authority of the copy-
right owner or the law,
knowing, or, with respect to civil remedies under section
1203, having reasonable grounds to know, that it will in-
duce, enable, facilitate or conceal an infringement of any
right under this title.
‘‘(c) DEFINITION.—As used in this chapter, ‘copyright
management information’ means the following information
conveyed in connection with copies or phonorecords of a
work or performances or displays of a work, including in
digital form—
‘‘(1) the title and other information identifying
the work, including the information set forth on a no-
tice of copyright;
‘‘(2) the name of, and other identifying informa-
tion about, the author of a work;
‘‘(3) the name of, and other identifying informa-
tion about, the copyright owner of the work, including
the information set forth in a notice of copyright;
‘‘(4) with the exception of public performances of
works by radio and television broadcast stations the
name of, and other identifying information about, a
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performer whose performance is fixed in a work other
than an audiovisual work;
‘‘(5) 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 information about, a writer, per-
former, or director who is credited in the audiovisual
work;
‘‘(6) terms and conditions for use of the work;
‘‘(7) identifying numbers or symbols referring to
such information or links to such information; or
‘‘(8) such other information as the Register of
Copyrights may prescribe by regulation, except that
the Register of Copyrights may not require the provi-
sion of any information concerning the user of a
copyrighted work.
‘‘(d) LAW ENFORCEMENT AND INTELLIGENCE ACTIVI-
TIES.—This section does not prohibit any lawfully author-
ized investigative, protective, or intelligence activity of an
officer, agent, or employee of the United States, a State,
or a political subdivision of a State, or a person acting
pursuant to a contract with such entities.
‘‘(e) LIMITATIONS ON LIABILITY.—
‘‘(1) ANALOG TRANSMISSIONS.—In the case of an
analog transmission, a person who is making trans-
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missions in its capacity as a radio or television
broadcast station, or as a cable system, or someone
who provides programming to such station or system,
shall not be liable for a violation of subsection (b)
if—
‘‘(A) avoiding the activity that constitutes
such violation is not technically feasible or would
create an undue financial hardship on such per-
son; and
‘‘(B) such person did not intend, by engag-
ing in such activity, to induce, enable, facilitate
or conceal infringement.
‘‘(2) DIGITAL TRANSMISSIONS.—
‘‘(A) If a digital transmission standard for
the placement of copyright management informa-
tion for a category of works is set in a vol-
untary, consensus standard-setting process in-
volving a representative cross-section of radio or
television broadcast stations or cable systems and
copyright owners of a category of works that are
intended for public performance by such stations
or systems, a person identified in subsection
(e)(1) shall not be liable for a violation of sub-
section (b) with respect to the particular copy-
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right management information addressed by
such standard if—
‘‘(i) the placement of such information
by someone other than such person is not in
accordance with such standard; and
‘‘(ii) the activity that constitutes such
violation is not intended to induce, enable,
facilitate or conceal infringement.
‘‘(B) Until a digital transmission standard
has been set pursuant to subparagraph (A) with
respect to the placement of copyright manage-
ment information for a category or works, a per-
son identified in subsection (e)(1) shall not be
liable for a violation of subsection (b) with re-
spect to such copyright management informa-
tion, where the activity that constitutes such vio-
lation is not intended to induce, enable, facilitate
or conceal infringement, if—
‘‘(i) the transmission of such informa-
tion by such person would result in a per-
ceptible visual or aural degradation of the
digital signal; or
‘‘(ii) the transmission of such informa-
tion by such person would conflict with—
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‘‘(I) an applicable government
regulation relating to transmission of
information in a digital signal;
‘‘(II) an applicable industry-wide
standard relating to the transmission
of information in a digital signal that
was adopted by a voluntary consensus
standards body prior to the effective
date of this section; or
‘‘(III) an applicable industry-
wide standard relating to the trans-
mission of information in a digital
signal that was adopted in a vol-
untary, 
consensus 
standards-setting
process open to participation by a rep-
resentative cross-section of radio or tel-
evision broadcast stations or cable sys-
tems and copyright owners of a cat-
egory of works that are intended for
public performance by such stations or
systems.
‘‘§ 1203. Civil remedies
‘‘(a) CIVIL ACTIONS.—Any person injured by a viola-
tion of section 1201 or 1202 may bring a civil action in
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an appropriate United States district court for such viola-
tion.
‘‘(b) POWERS OF THE COURT.—In an action brought
under subsection (a), the court—
‘‘(1) may grant temporary and permanent in-
junctions on such terms as it deems reasonable to pre-
vent or restrain a violation;
‘‘(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 subsection (c);
‘‘(4) in its discretion may allow the recovery of
costs by or against any party other than the United
States or an officer thereof;
‘‘(5) in its discretion may award reasonable at-
torney’s fees to the prevailing party; and
‘‘(6) may, as part of a final judgment or decree
finding a violation, order the remedial modification
or the destruction of any device or product involved
in the violation that is in the custody or control of
the violator or has been impounded under paragraph
(2).
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‘‘(c) AWARD OF DAMAGES.—
‘‘(1) IN GENERAL.—Except as otherwise provided
in this chapter, a person committing a violation of
section 1201 or 1202 is liable for either—
‘‘(A) the actual damages and any addi-
tional profits of the violator, as provided in
paragraph (2), or
‘‘(B) statutory damages, as provided in
paragraph (3).
‘‘(2) ACTUAL DAMAGES.—The court shall award
to the complaining party the actual damages suffered
by the party as a result of the violation, and any
profits of the violator that are attributable to the vio-
lation 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
entered.
‘‘(3) STATUTORY DAMAGES.—
‘‘(A) At any time before final judgment is
entered, a complaining party may elect to re-
cover an award of statutory damages for each
violation of section 1201 in the sum of not less
than $200 or more than $2,500 per act of cir-
cumvention, device, product, component, offer, or
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performance of service, as the court considers
just.
‘‘(B) At any time before final judgment is
entered, a complaining party may elect to re-
cover an award of statutory damages for each
violation of section 1202 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 prov-
ing, and the court finds, that a person has violated
section 1201 or 1202 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 otherwise
be awarded, as the court considers just.
‘‘(5) INNOCENT VIOLATIONS.—
‘‘(A) IN GENERAL.—The court in its discre-
tion may reduce or remit the total award of
damages in any case in which the violator sus-
tains the burden of proving, and the court finds,
that the violator was not aware and had no rea-
son to believe that its acts constituted a viola-
tion.
‘‘(B) NONPROFIT
LIBRARY, ARCHIVES, OR
EDUCATIONAL INSTITUTIONS.—In the case of a
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brought under this section unless such proceeding is com-
menced within five years after the cause of action arose.
‘‘§ 1205. Savings Clause
‘‘Nothing in this chapter abrogates, diminishes or
weakens the provisions of, nor provides any defense or ele-
ment 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 indi-
vidual’s use of the Internet.’’.
SEC. 104. CONFORMING AMENDMENT.
The table of chapters for title 17, United States Code,
is amended by adding at the end the following:
‘‘12. Copyright Protection and Management Systems ..................................
1201’’.
SEC. 105. 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 INTER-
NATIONAL AGREEMENTS.—(1) The following shall take ef-
fect upon entry into force of the WIPO Copyright Treaty
with respect to the United States—
(A) paragraph (5) of the definition of ‘‘inter-
national agreement’’ contained in section 101 of title
17, United States Code, as amended by section
102(a)(8) of this title;
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(B) the amendment made by section 102(a)(10)
of this title;
(C) subparagraph (C) of section 104A(h)(1) of
title 17, United States Code, as amended by section
102(c)(1) of this title; and
(D) subparagraph (C) of section 104A(h)(3) of
title 17, United States Code, as amended by section
102(c)(2) of this title.
(2) The following shall take effect upon the entry into
force of the WIPO Performances and Phonograms Treaty
with respect to the United States—
(A) paragraph (6) of the definition of ‘‘inter-
national agreement’’ contained in section 101 of title
17, United States Code, as amended by section
102(a)(8) of this title;
(B) the amendment made by section 102(a)(11)
of this title;
(C) the amendment made by section 102(b)(7) of
this title;
(D) subparagraph (D) of section 104A(h)(1) of
title 17, United States Code, as amended by section
102(c)(2) of this title;
(E) the amendment made by section 102(c)(4) of
this title; and
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(F) the amendment made by section 102(c)(5) of
this title.
TITLE II—INTERNET COPYRIGHT
INFRINGEMENT LIABILITY
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Internet Copyright In-
fringement Liability Clarification 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 monetary relief, or except
as provided in subsection (i) for injunctive or other equi-
table relief, for infringement for the provider’s transmitting,
routing, or providing connections for, material through a
system or network controlled or operated by or for the serv-
ice provider, or the intermediate and transient storage of
such material in the course of such transmitting, routing
or providing connections, if—
‘‘(1) it was initiated by or at the direction of a
person other than the service provider;
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‘‘(2) it is carried out through an automatic tech-
nical process without selection of such material by the
service provider;
‘‘(3) the service provider does not select the re-
cipients of such material except as an automatic re-
sponse to the request of another;
‘‘(4) no such copy of such material made by the
service provider is maintained on the system or net-
work 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 accessible to the anticipated recipients for
a longer period than is reasonably necessary for the
communication; and
‘‘(5) the material is transmitted without modi-
fication to its content.
‘‘(b) SYSTEM CACHING.—A service provider shall not
be liable for monetary relief, or except as provided in sub-
section (i) for injunctive or other equitable relief, for in-
fringement 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 service provider,
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‘‘(2) such material is transmitted from the per-
son described in paragraph (1) through such system
or network to someone other than that person at the
direction of such other person,
‘‘(3) the storage is carried out through an auto-
matic technical process for the purpose of making
such material available to users of such system or net-
work who subsequently request access to that material
from the person described in paragraph (1):
Provided further, That—
‘‘(4) such material is transmitted to such subse-
quent users without modification to its content from
the manner in which the material otherwise was
transmitted from the person described in paragraph
(1);
‘‘(5) such service provider complies with rules
concerning the refreshing, reloading or other updating
of such material when specified by the person making
that material available online in accordance with an
accepted industry standard data communications
protocol for the system or network through which that
person makes the material available: Provided fur-
ther, That the rules are not used by the person de-
scribed in paragraph (1) to prevent or unreasonably
impair such intermediate storage;
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‘‘(6) such service provider does not interfere with
the ability of technology associated with such material
that returns to the person described in paragraph (1)
the information that would have been available to
such person if such material had been obtained by
such subsequent users directly from such person: Pro-
vided further, That such technology—
‘‘(A) does not significantly interfere with
the performance of the provider’s system or net-
work or with the intermediate storage of the ma-
terial;
‘‘(B) is consistent with accepted industry
standard communications protocols; and
‘‘(C) does not extract information from the
provider’s system or network other than the in-
formation 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 paragraph (1)
does not currently condition access to such mate-
rial; or
‘‘(B) if access to such material is so condi-
tioned by such person, by a current individual
pre-condition, such as a pre-condition based on
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payment of a fee, or provision of a password or
other information, the service 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 conditions; and
‘‘(8) if the person described in paragraph (1)
makes that material available online without the au-
thorization of the copyright owner, then the service
provider responds expeditiously to remove, or disable
access to, the material that is claimed to be infringing
upon notification of claimed infringements described
in subsection (c)(3): Provided further, That the mate-
rial has previously been removed from the originating
site, and the party giving the notification includes in
the notification a statement confirming that such ma-
terial has been removed or access to it has been dis-
abled or ordered to be removed or have access dis-
abled.
‘‘(c) INFORMATION STORED
ON SERVICE PROVID-
ERS.—
‘‘(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 direction of a
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user of material that resides on a system or network
controlled or operated by or for the service provider,
if the service provider—
‘‘(A)(i) does not have actual knowledge that
the material or activity is infringing,
‘‘(ii) in the absence of such actual knowl-
edge, 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 di-
rectly attributable to the infringing activity,
where the service provider has the right and abil-
ity to control such activity; and
‘‘(C) in the instance of a notification of
claimed infringement as described in paragraph
(3), responds expeditiously to remove, or disable
access to, the material that is claimed to be in-
fringing or to be the subject of infringing activ-
ity.
‘‘(2) DESIGNATED AGENT.—The limitations on
liability established in this subsection apply only if
the service provider has designated an agent to receive
notifications of claimed infringement described in
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paragraph (3), by substantially making the name, ad-
dress, phone number, electronic mail address of such
agent, and other contact information deemed appro-
priate by the Register of Copyrights, available
through its service, including on its website, and by
providing such information to the Copyright Office.
The Register of Copyrights shall maintain a current
directory of agents available to the public for inspec-
tion, including 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 communication provided to the service
provider’s designated agent that includes sub-
stantially 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 copyrighted
work claimed to have been infringed, or, if
multiple such works at a single online site
are covered by a single notification, a rep-
resentative list of such works at that site;
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‘‘(iii) identification of the material
that is claimed to be infringing or to be the
subject of infringing activity that is to be
removed or access to which is to be disabled,
and information reasonably sufficient to
permit the service provider to locate the ma-
terial;
‘‘(iv) information reasonably sufficient
to permit the service provider to contact the
complaining party, such as an address, tele-
phone number, and, if available an elec-
tronic mail address at which the complain-
ing party may be contacted;
‘‘(v) a statement that the complaining
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 information
in the notification is accurate, and under
penalty of perjury, that the complaining
party has the authority to enforce the own-
er’s rights that are claimed to be infringed.
‘‘(B) A notification from the copyright
owner or from a person authorized to act on be-
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half of the copyright owner that fails substan-
tially to conform 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 activity is ap-
parent: Provided, That the provider promptly at-
tempts to contact 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 pro-
vider shall not be liable for monetary relief, or except as
provided in subsection (i) for injunctive or other equitable
relief, for infringement for the provider referring or linking
users to an online location containing infringing material
or activity by using information location tools, including
a directory, index, reference, pointer or hypertext link, if
the provider—
‘‘(1) does not have actual knowledge that the ma-
terial or activity is infringing or, in the absence of
such actual knowledge, is not aware of facts or cir-
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cumstances from which infringing activity is appar-
ent;
‘‘(2) does not receive a financial benefit directly
attributable to the infringing activity, where the serv-
ice provider has the right and ability to control such
activity; and
‘‘(3) responds expeditiously to remove or disable
the reference or link upon notification of claimed in-
fringement as described 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 access to
which is to be disabled, and information reasonably
sufficient to permit the service provider to locate such
reference or link.
‘‘(e) MISREPRESENTATIONS.—Any person who know-
ingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or dis-
abled by mistake or misidentification,
shall be liable for any damages, including costs and attor-
neys’ fees, incurred by the alleged infringer, by any copy-
right owner or copyright owner’s authorized licensee, or by
the service provider, who is injured by such misrepresenta-
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tion, as the result of the service provider relying upon such
misrepresentation in removing or disabling access to the
material or activity claimed to be infringing, or in replac-
ing the removed material or ceasing to disable access to it.
‘‘(f) REPLACEMENT OF REMOVED OR DISABLED MATE-
RIAL AND LIMITATION ON OTHER LIABILITY.—
‘‘(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, material or ac-
tivity claimed to be infringing or based on facts or
circumstances from which infringing activity is ap-
parent, regardless of whether the material or activity
is ultimately determined to be infringing.
‘‘(2) Paragraph (1) of this subsection shall not
apply with respect to material residing at the direc-
tion of a subscriber of the service provider on a sys-
tem 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 no-
tify the subscriber that it has removed or dis-
abled access to the material;
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‘‘(g) IDENTIFICATION
OF DIRECT INFRINGER.—The
copyright owner or a person authorized to act on the own-
er’s behalf may request an order for release of identification
of an alleged infringer by filing—
(1) a copy of a notification described in sub-
section (c)(3)(A), including a proposed order, and
(2) a sworn declaration that the purpose of the
order is to obtain the identity of an alleged infringer
and that such information will only be used for the
purpose of this title, with the clerk of any United
States district court.
The order shall authorize and order the service provider re-
ceiving the notification to disclose expeditiously to the copy-
right owner or person authorized by the copyright owner
information sufficient to identify the alleged direct in-
fringer 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 accompanying
notification satisfies the provisions of subsection (c)(3)(A)
and the accompanying declaration is properly executed.
Upon receipt of the order, either accompanying or subse-
quent to the receipt of a notification described in subsection
(c)(3)(A), a service provider shall expeditiously give to the
copyright owner or person authorized by the copyright
owner the information required by the order, notwithstand-
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ing any other provision of law and regardless of whether
the service provider responds to the notification.
‘‘(h) CONDITIONS FOR ELIGIBILITY.—
‘‘(1) ACCOMMODATION
OF
TECHNOLOGY.—The
limitations on liability established by this section
shall apply only if the service provider—
‘‘(A) has adopted and reasonably imple-
mented, and informs subscribers 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 subsection.
‘‘(2) DEFINITION.—As used in this section,
‘standard technical measures’ are technical measures,
used by copyright owners to identify or protect copy-
righted works, that—
‘‘(A) have been developed pursuant to a
broad consensus of copyright owners and service
providers in an open, fair, voluntary, multi-in-
dustry standards process;
‘‘(B) are available to any person on reason-
able and nondiscriminatory terms; and
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‘‘(C) do not impose substantial costs on
service providers or substantial burdens on their
systems or networks.
‘‘(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 limitation on rem-
edies as set forth in subsection (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 pro-
viding access to infringing material or ac-
tivity residing at a particular online site on
the provider’s system or network;
‘‘(ii) an order restraining it from pro-
viding access to an identified subscriber of
the service provider’s system or network who
is engaging in infringing activity by termi-
nating the specified accounts of such sub-
scriber; or
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‘‘(iii) such other injunctive remedies as
the court may consider necessary to prevent
or restrain infringement of specified copy-
righted material at a particular online lo-
cation: Provided, That such remedies are
the least burdensome to the service provider
that are comparably effective for that pur-
pose.
‘‘(B) If the service provider qualifies for the
limitation on remedies described in subsection
(a), the court may only grant injunctive relief in
one or both of the following forms—
‘‘(i) an order restraining it from pro-
viding access to an identified subscriber of
the service provider’s system or network who
is using the provider’s service to engage in
infringing activity by terminating the spec-
ified accounts of such subscriber; or
‘‘(ii) an order restraining it from pro-
viding access, by taking specified reasonable
steps to block access, to a specific, identified,
foreign online location.
‘‘(2) CONSIDERATIONS.—The court, in consider-
ing the relevant criteria for injunctive relief under
applicable law, shall consider—
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‘‘(A) whether such an injunction, either
alone or in combination with other such injunc-
tions issued against the same service provider
under this subsection, would significantly burden
either the provider or the operation of the pro-
vider’s system or network;
‘‘(B) the magnitude of the harm likely to be
suffered by the copyright owner in the digital
network environment if steps are not taken to
prevent or restrain the infringement;
‘‘(C) whether implementation of such an in-
junction would be technically feasible and effec-
tive, and would not interfere with access to non-
infringing material at other online locations;
and
‘‘(D) whether other less burdensome and
comparably effective means of preventing or re-
straining access to the infringing material are
available.
‘‘(3) NOTICE AND EX PARTE ORDERS.—Injunc-
tive relief under this subsection shall not be available
without notice to the service provider and an oppor-
tunity for such provider to appear, except for orders
ensuring the preservation of evidence or other orders
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having no material adverse effect on the operation of
the service provider’s communications network.
‘‘(j) DEFINITIONS.—
‘‘(1)(A) As used in subsection (a), the term ‘serv-
ice provider’ means an entity offering the trans-
mission, routing or providing of connections for digi-
tal 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.
‘‘(B) As used in any other subsection of this sec-
tion, the term ‘service provider’ means a provider of
online services or network access, or the operator of
facilities therefor, and includes an entity described 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 qualify for limitation of
liability under this section shall not bear adversely upon
the consideration of a defense by the service provider that
the service provider’s conduct is not infringing under this
title or any other defense.
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‘‘(l) PROTECTION OF PRIVACY.—Nothing in this sec-
tion shall be construed to condition the applicability of sub-
sections (a) through (d) on—
‘‘(1) a service provider monitoring its service or
affirmatively seeking facts indicating infringing ac-
tivity except to the extent consistent with a standard
technical measure complying with the provisions of
subsection (h); or
‘‘(2) a service provider accessing, removing, 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. Wheth-
er a service provider qualifies for the limitation on liability
in any one such subsection shall be based solely on the cri-
teria in each such subsection and shall not affect a deter-
mination of whether such service provider qualifies for the
limitations on liability under any other such subsection.’’.
SEC. 203. CONFORMING AMENDMENT.
The table of sections for chapter 5 of title 17, United
States Code, is amended by adding at the end the following:
‘‘512. Liability of service providers for online infringement of copyright.’’.
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SEC. 204. LIABILITY OF EDUCATIONAL INSTITUTIONS FOR
ONLINE INFRINGEMENT OF COPYRIGHT.
(a) Not later than six months after the date of enact-
ment of this Act, the Register of Copyrights, after consulta-
tion with representatives of copyright owners and nonprofit
educational institutions, shall submit to the Congress rec-
ommendations regarding the liability of nonprofit edu-
cational institutions for copyright infringement committed
with the use of computer systems for which such an institu-
tion is a service provider, as that term is defined in section
512 of title 17, United States Code, (as amended by this
Act), including recommendations for legislation the Register
of Copyrights considers appropriate regarding such liabil-
ity, if any.
(b) In formulating recommendations, the Register of
Copyrights shall consider, where relevant—
(1) current law regarding the direct, vicarious,
and contributory liability of nonprofit educational
institutions for infringement by faculty, administra-
tive employees, students, graduate students, and stu-
dents who are employees of a nonprofit educational
institution;
(2) other users of their computer systems for
whom nonprofit educational institutions may be re-
sponsible;
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(3) the unique nature of the relationship between
nonprofit educational institutions and faculty;
(4) what policies nonprofit educational institu-
tions should adopt regarding copyright infringement
by users of their computer systems;
(5) what technological measures are available to
monitor infringing uses;
(6) what monitoring of their computer systems
by nonprofit educational institutions is appropriate;
(7) what due process nonprofit educational insti-
tutions should afford in disabling access by users of
their computer systems who are alleged to have com-
mitted copyright infringement;
(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 thereof;
(9) the tradition of academic freedom; and
(10) such other issues relating to the liability of
nonprofit educational institutions for copyright in-
fringement committed with the use of computer sys-
tems for which such an institution is a service pro-
vider that the Register considers appropriate.
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SEC. 205. 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—COMPUTER
MAINTENANCE OR REPAIR
SEC. 301. LIMITATION ON EXCLUSIVE RIGHTS; COMPUTER
PROGRAMS.
Section 117 of title 17, United States Code, is amend-
ed—
(1) by striking ‘‘Notwithstanding’’ and inserting
the following:
‘‘(a) MAKING OF ADDITIONAL COPY OR ADAPTATION
BY OWNER OF COPY.—Notwithstanding’’;
(2) by striking ‘‘Any exact’’ and inserting the
following:
‘‘(b) LEASE, SALE, OR OTHER TRANSFER OF ADDI-
TIONAL COPY OR ADAPTATION.—Any exact’’; and
(3) by adding at the end the following new sub-
sections:
‘‘(c) MACHINE MAINTENANCE OR REPAIR.—Notwith-
standing the provisions of section 106, it is not an infringe-
ment for an owner or lessee of a machine to make or author-
ize the making of a copy of a computer program if such
copy is made solely by virtue of the activation of a machine
that lawfully contains an authorized copy of the computer
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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 after the maintenance
or repair is completed; and
‘‘(2) with respect to any computer program or
part thereof that is not necessary 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 serv-
icing of the machine in order to make it work in ac-
cordance with its original specifications and any
changes to those specifications authorized for that ma-
chine; and
‘‘(2) the ‘repair’ of a machine is the restoring of
the machine to the state of working in accordance
with its original specifications and any changes to
those specifications authorized for that machine.’’.
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TITLE IV—EPHEMERAL RECORD-
INGS; DISTANCE EDUCATION;
EXEMPTION FOR LIBRARIES
AND ARCHIVES
SEC. 401. EPHEMERAL RECORDINGS.
Section 112 of title 17, United States Code, is amended
by—
(1) redesignating section 112(a) as 112(a)(1),
and renumbering sections 112(a) (1), (2), and (3) as
sections 112(a)(1) (A), (B), and (C), respectively;
(2) in section 112(a)(1), after the reference to
section 114(a), add the words ‘‘or for a transmitting
organization that is a broadcast radio or television
station licensed as such by the Federal Communica-
tions Commission that broadcasts a performance of a
sound recording in a digital format on a nonsubscrip-
tion basis,’’;
(3) adding new section 112(a)(2) as follows:
‘‘(2) Where a transmitting organization entitled to
make a copy or phonorecord under section 112(a)(1) in con-
nection with the transmission to the public of a performance
or display of a work pursuant to that section 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, such copyright owner