II
Calendar No. 535
105TH CONGRESS
2D SESSION
H. R. 2281
IN THE SENATE OF THE UNITED STATES
AUGUST 31, 1998
Received; read twice and placed on the calendar
AN ACT
To amend title 17, United States Code, to implement the
World Intellectual Property Organization Copyright
Treaty and Performances and Phonograms Treaty, and
for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Digital Millennium
Copyright Act’’.
SEC. 2. TABLE OF CONTENTS.
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I—WIPO COPYRIGHT TREATIES IMPLEMENTATION
Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management information.
Sec. 104. Development and implementation of technological protection meas-
ures.
Sec. 105. Evaluation of impact of copyright law and amendments on electronic
commerce and technological development.
Sec. 106. Effective date.
TITLE II—ONLINE COPYRIGHT INFRINGEMENT LIABILITY
LIMITATION
Sec. 201. Short title.
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.
TITLE III-COMPUTER MAINTENANCE OR REPAIR COPYRIGHT
EXEMPTION
Sec. 301. Short title.
Sec. 302. Limitations on exclusive rights; computer programs.
TITLE IV—MISCELLANEOUS PROVISIONS
Subtitle A—Establishment of the Under Secretary of Commerce for
Intellectual Property Policy
Sec. 401. Under Secretary of Commerce for Intellectual Property Policy.
Sec. 402. Relationship with existing authorities.
Subtitle B—Related Provisions
Sec. 411. Ephemeral recordings.
Sec. 412. Limitations on exclusive rights; distance education.
Sec. 413. Exemption for libraries and archives.
Sec. 414. Fair use.
Sec. 415. Scope of exclusive rights in sound recordings; ephemeral recordings.
Sec. 416. Assumption of contractual obligations related to transfers of rights in
motion pictures.
Sec. 417. First sale clarification.
TITLE V—COLLECTIONS OF INFORMATION ANTIPIRACY ACT
Sec. 501. Short title.
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Sec. 502. Misappropriation of collections of information.
Sec. 503. Conforming amendment.
Sec. 504. Conforming amendments to title 28, United States Code.
Sec. 505. Effective date.
TITLE VI—PROTECTION OF CERTAIN ORIGINAL DESIGNS
Sec. 601. Short title.
Sec. 602. Protection of certain original designs.
Sec. 603. Conforming amendments.
Sec. 604. Effective date.
TITLE I—WIPO COPYRIGHT
TREATIES IMPLEMENTATION
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘WIPO Copyright
Treaties Implementation Act’’.
SEC. 102. TECHNICAL AMENDMENTS.
(a) DEFINITIONS.—Section 101 of title 17, United
States Code, is amended—
(1) by striking the definition of ‘‘Berne Conven-
tion 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 sec-
tion 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 adhering to the Berne
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Convention’’ and inserting ‘‘treaty party or
parties’’;
(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 paragraph (3)
by striking ‘‘For the purposes of section 411,
the ‘country of origin’ of any other Berne Con-
vention work is not the United States.’’;
(3) by inserting after the definition of ‘‘fixed’’
the following:
‘‘The ‘Geneva Phonograms Convention’ is the
Convention for the Protection of Producers of
Phonograms Against Unauthorized Duplication of
Their Phonograms, concluded at Geneva, Switzer-
land, on October 29, 1971.’’;
(4) by inserting after the definition of ‘‘includ-
ing’’ the following:
‘‘An ‘international agreement’ is—
‘‘(1) the Universal Copyright Convention;
‘‘(2) the Geneva Phonograms Convention;
‘‘(3) the Berne Convention;
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‘‘(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 ‘‘trans-
mit’’ the following:
‘‘A ‘treaty party’ is a country or intergovern-
mental 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 Geneva, Switzerland,
on December 20, 1996.’’;
(7) by inserting after the definition of ‘‘The
‘WIPO Copyright Treaty’ ’’ the following:
‘‘The ‘WIPO Performances and Phonograms
Treaty’ is the WIPO Performances and Phonograms
Treaty concluded at Geneva, Switzerland, on Decem-
ber 20, 1996.’’; and
(8) by inserting after the definition of ‘‘work
made for hire’’ the following:
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‘‘The terms ‘WTO Agreement’ and ‘WTO mem-
ber country’ have the meanings given those terms in
paragraphs (9) and (10), respectively, of section 2 of
the Uruguay Round Agreements Act.’’.
(b) SUBJECT MATTER OF COPYRIGHT; NATIONAL
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 in-
serting ‘‘treaty party’’;
(B) in paragraph (2) by striking ‘‘party to
the Universal Copyright Convention’’ and in-
serting ‘‘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’’;
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(F) in paragraph (4) by striking ‘‘Berne
Convention work’’ and inserting ‘‘pictorial,
graphic, or sculptural work that is incorporated
in a building or other structure, or an architec-
tural work that is embodied in a building and
the building or structure 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 sub-
section:
‘‘(d) EFFECT
OF PHONOGRAMS TREATIES.—Not-
withstanding 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 Convention or
the WIPO Performances and Phonograms Treaty.’’.
(c) COPYRIGHT
IN
RESTORED
WORKS.—Section
104A(h) of title 17, United States Code, is amended—
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(1) in paragraph (1), by striking subparagraphs
(A) and (B) and inserting the following:
‘‘(A) a nation adhering to the Berne Con-
vention;
‘‘(B) a WTO member country;
‘‘(C) a nation adhering to the WIPO Copy-
right Treaty;
‘‘(D) a nation adhering to the WIPO Per-
formances and Phonograms Treaty; or
‘‘(E) subject to a Presidential proclamation
under subsection (g).’’;
(2) by amending paragraph (3) to read as fol-
lows:
‘‘(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 enactment of the Uruguay
Round Agreements Act;
‘‘(B) on such date of enactment is, or after
such date of enactment becomes, a nation ad-
hering to the Berne Convention;
‘‘(C) adheres to the WIPO Copyright
Treaty;
‘‘(D) adheres to the WIPO Performances
and Phonograms Treaty; or
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‘‘(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 inserting ‘‘; 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 adher-
ence 
to 
the 
WIPO 
Performances 
and
Phonograms Treaty, is a sound recording.’’;
(4) in paragraph (8)(B)(i)—
(A) by inserting ‘‘of which’’ before ‘‘the
majority’’; and
(B) by striking ‘‘of eligible countries’’; and
(5) by striking paragraph (9).
(d) REGISTRATION AND INFRINGEMENT ACTIONS.—
Section 411(a) of title 17, United States Code, is amended
in the first sentence—
(1) by striking ‘‘actions for infringement of
copyright in Berne Convention works whose country
of origin is not the United States and’’; and
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(2) by inserting ‘‘United States’’ after ‘‘no ac-
tion for infringement of the copyright in any’’.
(e) STATUTE OF LIMITATIONS.—Section 507(a) of
title 17, United State Code, is amended by striking ‘‘No’’
and inserting ‘‘Except as expressly provided otherwise in
this title, no’’.
SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPY-
RIGHT MANAGEMENT INFORMATION.
(a) IN GENERAL.—Title 17, United States Code is
amended by adding at the end the following new chapter:
‘‘CHAPTER 12—COPYRIGHT PROTECTION AND
MANAGEMENT SYSTEMS
‘‘Sec.
‘‘1201. Circumvention of copyright protection systems.
‘‘1202. Integrity of copyright management information.
‘‘1203. Civil remedies.
‘‘1204. Criminal offenses and penalties.
‘‘1205. Savings clause.
‘‘1203. Civil remedies.
‘‘§ 1201. Circumvention of copyright protection sys-
tems
‘‘(a) VIOLATIONS REGARDING CIRCUMVENTION OF
TECHNOLOGICAL MEASURES.—(1)(A) No person shall cir-
cumvent a technological measure that effectively controls
access to a work protected under this title. The prohibition
contained in the preceding sentence shall take effect at
the end of the 2-year period beginning on the date of the
enactment of this chapter.
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and Information, and the Register of Copyrights, shall
conduct a rulemaking on the record to make the deter-
mination for purposes of subparagraph (B) of whether
nonprofit libraries, archives, or educational institutions
and other entities described in subparagraph (B) or per-
sons who have gained initial lawful access to a copyrighted
work are, or are likely to be in the succeeding 3-year pe-
riod, adversely affected by the prohibition under subpara-
graph (A) in their ability to make noninfringing uses
under this title of a particular class of copyrighted works.
In conducting such rulemaking, the Secretary shall exam-
ine—
‘‘(i) the availability for use of copyrighted
works;
‘‘(ii) the availability for use of works for non-
profit archival, preservation, and educational pur-
poses;
‘‘(iii) the impact of the prohibition on the cir-
cumvention of technological measures applied to
copyrighted works on criticism, comment, news re-
porting, teaching, scholarship, or research;
‘‘(iv) the effect of circumvention of techno-
logical measures on the market for or value of copy-
righted works; and
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‘‘(v) such other factors as the Secretary, in con-
sultation with the Under Secretary of Commerce for
Intellectual Property Policy, the Assistant Secretary
of Commerce for Communications and Information,
and the Register of Copyrights, considers appro-
priate.
‘‘(D) The Secretary shall publish any class of copy-
righted works for which the Secretary has determined,
pursuant to the rulemaking conducted under subpara-
graph (C), that noninfringing uses by nonprofit libraries,
archives, or educational institutions and other entities de-
scribed in subparagraph (B) or by persons who have
gained initial lawful access to a copyrighted work are, or
are likely to be, adversely affected, and the prohibition
contained in subparagraph (A) shall not apply to such en-
tities with respect to such class of works, or to such per-
sons with respect to such copyrighted work, for the ensu-
ing 3-year period.
‘‘(E) Neither the exception under subparagraph (B)
from the applicability of the prohibition contained in sub-
paragraph (A), nor any determination made in a rule-
making conducted under subparagraph (C), may be used
as a defense in any action to enforce any provision of this
title other than this paragraph.
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‘‘(2) No person shall manufacture, import, offer to
the public, provide, or otherwise traffic in any technology,
product, service, device, component, or part thereof,
that—
‘‘(A) is primarily designed or produced for the
purpose of circumventing a technological measure
that effectively controls access to a work protected
under this title;
‘‘(B) has only limited commercially significant
purpose or use other than to circumvent a techno-
logical measure that effectively controls access to a
work protected under this title; or
‘‘(C) is marketed by that person or another act-
ing in concert with that person with that person’s
knowledge for use in circumventing a technological
measure that effectively controls access to a work
protected under this title.
‘‘(3) As used in this subsection—
‘‘(A) to ‘circumvent a technological measure’
means to descramble a scrambled work, to decrypt
an encrypted work, or otherwise to avoid, bypass, re-
move, deactivate, or impair a technological measure,
without the authority of the copyright owner; and
‘‘(B) a technological measure ‘effectively con-
trols access to a work’ if the measure, in the ordi-
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nary course of its operation, requires the application
of information, or a process or a treatment, with the
authority of the copyright owner, to gain access to
the work.
‘‘(b) ADDITIONAL VIOLATIONS.—(1) No person shall
manufacture, import, offer to the public, provide, or other-
wise traffic in any technology, product, service, device,
component, or part thereof, that—
‘‘(A) is primarily designed or produced for the
purpose of circumventing protection afforded by a
technological measure that effectively protects a
right of a copyright owner under this title in a work
or a portion thereof;
‘‘(B) has only limited commercially significant
purpose or use other than to circumvent protection
afforded by a technological measure that effectively
protects a right of a copyright owner under this title
in a work or a portion thereof; or
‘‘(C) is marketed by that person or another act-
ing in concert with that person with that person’s
knowledge for use in circumventing protection af-
forded by a technological measure that effectively
protects a right of a copyright owner under this title
in a work or a portion thereof.
‘‘(2) As used in this subsection—
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‘‘(A) to ‘circumvent protection afforded by a
technological measure’ means avoiding, bypassing,
removing, deactivating, or otherwise impairing a
technological measure; and
‘‘(B) a technological measure ‘effectively pro-
tects a right of a copyright owner under this title’
if the measure, in the ordinary course of its oper-
ation, prevents, restricts, or otherwise limits the ex-
ercise of a right of a copyright owner under this
title.
‘‘(c) OTHER RIGHTS, ETC., NOT AFFECTED.—(1)
Nothing in this section shall affect rights, remedies, limi-
tations, or defenses to copyright infringement, including
fair use, under this title.
‘‘(2) Nothing in this section shall enlarge or diminish
vicarious or contributory liability for copyright infringe-
ment in connection with any technology, product, service,
device, component, or part thereof.
‘‘(3) Nothing in this section shall require that the de-
sign of, or design and selection of parts and components
for, a consumer electronics, telecommunications, or com-
puting product provide for a response to any particular
technological measure.
‘‘(4) Nothing in this section shall enlarge or diminish
any rights of free speech or the press for activities using
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consumer electronics, telecommunications, or computing
products.
‘‘(d) EXEMPTION FOR NONPROFIT LIBRARIES, AR-
CHIVES, AND EDUCATIONAL INSTITUTIONS.—(1) A non-
profit library, archives, or educational institution which
gains access to a commercially exploited copyrighted work
solely in order to make a good faith determination of
whether to acquire a copy of that work for the sole purpose
of engaging in conduct permitted under this title shall not
be in violation of subsection (a)(1)(A). A copy of a work
to which access has been gained under this paragraph—
‘‘(A) may not be retained longer than necessary
to make such good faith determination; and
‘‘(B) may not be used for any other purpose.
‘‘(2) The exemption made available under paragraph
(1) shall only apply with respect to a work when an iden-
tical copy of that work is not reasonably available in an-
other form.
‘‘(3) A nonprofit library, archives, or educational in-
stitution that willfully for the purpose of commercial ad-
vantage or financial gain violates paragraph (1)—
‘‘(A) shall, for the first offense, be subject to
the civil remedies under section 1203; and
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‘‘(B) shall, for repeated or subsequent offenses,
in addition to the civil remedies under section 1203,
forfeit the exemption provided under paragraph (1).
‘‘(4) This subsection may not be used as a defense
to a claim under subsection (a)(2) or (b), nor may this
subsection permit a nonprofit library, archives, or edu-
cational institution to manufacture, import, offer to the
public, provide, or otherwise traffic in any technology,
product, service, component, or part thereof, which cir-
cumvents a technological measure.
‘‘(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
research in a specialized field.
‘‘(e) LAW ENFORCEMENT AND INTELLIGENCE AC-
TIVITIES.—This section does not prohibit any lawfully au-
thorized 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 the United States, a
State, or a political subdivision of a State.
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‘‘(3) The information acquired through the acts per-
mitted under paragraph (1), and the means permitted
under paragraph (2), may be made available to others if
the person referred to in paragraphs (1) and (2) provides
such information or means solely for the purpose of
achieving interoperability 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 other applicable law.
‘‘(4) For purposes of this subsection, the term ‘inter-
operability’ means the ability of computer programs to ex-
change information, and of such programs mutually to use
the information which has been exchanged.
‘‘(g) ENCRYPTION RESEARCH.—
‘‘(1) DEFINITIONS.—For purposes of this sub-
section—
‘‘(A) the term ‘encryption research’ means
activities necessary to identify and analyze
flaws and vulnerabilities of encryption tech-
nologies applied to copyrighted works, if these
activities are conducted to advance the state of
knowledge in the field of encryption technology
or to assist in the development of encryption
products; and
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‘‘(B) the term ‘encryption technology’
means the scrambling and descrambling of in-
formation using mathematical formulas or algo-
rithms.
‘‘(2) PERMISSIBLE ACTS OF ENCRYPTION RE-
SEARCH.—Notwithstanding the provisions of sub-
section (a)(1)(A), it is not a violation of that sub-
section for a person to circumvent a technological
measure as applied to a copy, phonorecord, perform-
ance, or display of a published work in the course
of an act of good faith encryption research if—
‘‘(A) the person lawfully obtained the
encrypted copy, phonorecord, performance, or
display of the published work;
‘‘(B) such act is necessary to conduct such
encryption research;
‘‘(C) the person made a good faith effort
to obtain authorization before the circumven-
tion; and
‘‘(D) such act does not constitute infringe-
ment under this title or a violation of applicable
law other than this section, including section
1030 of title 18 and those provisions of title 18
amended by the Computer Fraud and Abuse
Act of 1986.
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‘‘(3) FACTORS IN DETERMINING EXEMPTION.—
In determining whether a person qualifies for the ex-
emption under paragraph (2), the factors to be con-
sidered shall include—
‘‘(A) whether the information derived from
the encryption research was disseminated, and
if so, whether it was disseminated in a manner
reasonably calculated to advance the state of
knowledge or development of encryption tech-
nology, versus whether it was disseminated in a
manner that facilitates infringement under this
title or a violation of applicable law other than
this section, including a violation of privacy or
breach of security;
‘‘(B) whether the person is engaged in a
legitimate course of study, is employed, or is
appropriately trained or experienced, in the
field of encryption technology; and
‘‘(C) whether the person provides the copy-
right owner of the work to which the techno-
logical measure is applied with notice of the
findings and documentation of the research,
and the time when such notice is provided.
‘‘(4) USE OF TECHNOLOGICAL MEANS FOR RE-
SEARCH
ACTIVITIES.—Notwithstanding the provi-
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sions of subsection (a)(2), it is not a violation of
that subsection for a person to—
‘‘(A) develop and employ technological
means to circumvent a technological measure
for the sole purpose of that person performing
the acts of good faith encryption research de-
scribed in paragraph (2); and
‘‘(B) provide the technological means to
another person with whom he or she is working
collaboratively for the purpose of conducting the
acts of good faith encryption research described
in paragraph (2) or for the purpose of having
that other person verify his or her acts of good
faith encryption research described in para-
graph (2).
‘‘(5) REPORT TO CONGRESS.—Not later than 1
year after the date of the enactment of this chapter,
the Under Secretary of Commerce for Intellectual
Property Policy, the Assistant Secretary of Com-
merce for Communications and Information, and the
Register of Copyrights shall jointly report to the
Congress on the effect this subsection has had on—
‘‘(A) encryption research and the develop-
ment of encryption technology;
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‘‘(B) the adequacy and effectiveness of
technological measures designed to protect
copyrighted works; and
‘‘(C) 
protection 
of 
copyright 
owners
against the unauthorized access to their
encrypted copyrighted works.
The report shall include legislative recommendations,
if any.
‘‘(h) EXCPETIONS REGARDING MINORS.—(1) In ap-
plying subsection (a) to a component or part, the court
may consider the necessity for its intended and actual in-
corporation in a technology, product, service, or device,
which—
‘‘(A) does not itself violate the provisions of this
title; and
‘‘(B) has the sole purpose to prevent the access
of minors to material on the Internet.
‘‘(2) Notwithstanding the provisions of subsection
(a)(1)(A), it is not a violation of that subsection for a par-
ent to circumvent a technological measure that effectively
controls access to a test, examination, or other evaluation
of his or her minor child’s abilities that is given by a non-
profit educational institution if—
‘‘(A) the parent made a good faith effort to ob-
tain authorization before the circumvention; and
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‘‘(B) such act is necessary to obtain a copy of
such test, examination, or other evaluation.
‘‘(i) PROTECTION OF PERSONALLY IDENTIFYING IN-
FORMATION.—
(1) 
CIRCUMVENTION
PERMITTED.—Notwith-
standing the provisions of subsection (a)(1)(A), it is
not a violation of that subsection for a person to cir-
cumvent a technological measure that effectively
controls access to a work protected under this title,
if—
‘‘(A) the technological measure, or the
work it protects, contains the capability of col-
lecting or disseminating personally identifying
information reflecting the online activities of a
natural person who seeks to gain access to the
work protected;
‘‘(B) in the normal course of its operation,
the technological measure, or the work it pro-
tects, collects or disseminates personally identi-
fying information about the person who seeks to
gain access to the work protected, without pro-
viding conspicuous notice of such collection or
dissemination to such person, and without pro-
viding such person with the capability to pre-
vent or restrict such collection or dissemination;
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‘‘(C) the act of circumvention has the sole
effect of identifying and disabling 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 col-
lection or dissemination of personally identify-
ing information about a natural person who
seeks to gain access to the work protected, and
is not in violation of any other law.
‘‘(2) INAPPLICABILITY
TO
CERTAIN
TECHNO-
LOGICAL
MEASURES.—This subsection does not
apply to a technological measure, or a work it pro-
tects, that does not collect or disseminate personally
identifying information and that is disclosed to a
user as not having or using such capability.
‘‘§ 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
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‘‘(2) distribute or import for distribution copy-
right 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 distribution copy-
right management information knowing that the
copyright management information has been re-
moved or altered without authority of the copyright
owner or the law, or
‘‘(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 au-
thority of the copyright 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 section, the term
‘copyright management information’ means any of the fol-
lowing information conveyed in connection with copies or
phonorecords of a work or performances or displays of a
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work, including in digital form, except that such term does
not include any personally identifying information about
a user of a work or of a copy, phonorecord, performance,
or display of a work:
‘‘(1) The title and other information identifying
the work, including the information set forth on a
notice of copyright.
‘‘(2) The name of, and other identifying infor-
mation about, the author of a work.
‘‘(3) The name of, and other identifying infor-
mation about, the copyright owner of the work, in-
cluding the information set forth in a notice of copy-
right.
‘‘(4) With the exception of public performances
of works by radio and television broadcast stations,
the name of, and other identifying information
about, a 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.
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‘‘(7) Identifying numbers or symbols referring
to such information or links to such information.
‘‘(8) Such other information as the Register of
Copyrights may prescribe by regulation, except that
the Register of Copyrights may not require the pro-
vision of any information concerning the user of a
copyrighted work.
‘‘(d) LAW ENFORCEMENT AND INTELLIGENCE AC-
TIVITIES.—This section does not prohibit any lawfully au-
thorized 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 the United States, a
State, or a political subdivision of a State.
‘‘(e) LIMITATIONS ON LIABILITY.—
‘‘(1) ANALOG TRANSMISSIONS.—In the case of
an analog transmission, a person who is making
transmissions in its capacity as a broadcast station,
or as a cable system, or someone who provides pro-
gramming to such station or system, shall not be lia-
ble 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 person; and
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‘‘(B) such person did not intend, by engag-
ing in such activity, to induce, enable, facilitate,
or conceal infringement of a right under this
title.
‘‘(2) DIGITAL TRANSMISSIONS.—
‘‘(A) If a digital transmission standard for
the placement of copyright management infor-
mation for a category of works is set in a vol-
untary, consensus standard-setting process in-
volving a representative cross-section of broad-
cast stations or cable systems and copyright
owners of a category of works that are intended
for public performance by such stations or sys-
tems, a person identified in paragraph (1) shall
not be liable for a violation of subsection (b)
with respect to the particular copyright man-
agement information addressed by such stand-
ard 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 of a
right under this title.
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‘‘(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
person identified in paragraph (1) shall not be
liable for a violation of subsection (b) with re-
spect to such copyright management informa-
tion, if the activity that constitutes such viola-
tion is not intended to induce, enable, facilitate,
or conceal infringement of a right under this
title, and 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 infor-
mation by such person would conflict
with—
‘‘(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
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standards body prior to the effective
date of this chapter; or
‘‘(III) an applicable industry-wide
standard relating to the transmission
of information in a digital signal that
was adopted in a voluntary, consensus
standards-setting process open to par-
ticipation by a representative cross-
section 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.
‘‘(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 mean-
ing given that term in section 602 of the Com-
munications Act of 1934 (47 U.S.C. 522)).
‘‘§ 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
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 Constitu-
tion;
‘‘(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
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in the violation 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 pro-
vided in this title, 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 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 entered.
‘‘(3) STATUTORY DAMAGES.—(A) At any time
before final judgment is entered, a complaining
party may elect to recover 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
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act of circumvention, device, product, component,
offer, or performance of service, as the court consid-
ers just.
‘‘(B) At any time before final judgment is en-
tered, a complaining party may elect to recover an
award of statutory damages for each violation of sec-
tion 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 other-
wise be awarded, as the court considers just.
‘‘(5) INNOCENT VIOLATIONS.—
‘‘(A) IN GENERAL.—The court in its dis-
cretion 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 reason to believe that its acts constituted a
violation.
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‘‘(B) NONPROFIT LIBRARY, ARCHIVES, OR
EDUCATIONAL INSTITUTIONS.—In the case of a
nonprofit library, archives, or educational insti-
tution, the court shall remit damages in any
case in which the library, archives, or edu-
cational institution sustains the burden of prov-
ing, and the court finds, that the library, ar-
chives, or educational institution was not aware
and had no reason to believe that its acts con-
stituted a violation.
‘‘§ 1204. Criminal offenses and penalties
‘‘(a) IN GENERAL.—Any person who violates section
1201 or 1202 willfully and for purposes of commercial ad-
vantage or private financial 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 subsequent offense.
‘‘(b) LIMITATION
FOR NONPROFIT LIBRARY, AR-
CHIVES, OR EDUCATIONAL INSTITUTION.—Subsection (a)
shall not apply to a nonprofit library, archives, or edu-
cational institution.
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‘‘(c) STATUTE OF LIMITATIONS.—No criminal pro-
ceeding shall be brought under this section unless such
proceeding is commenced 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.’’.
(b) CONFORMING AMENDMENT.—The table of chap-
ters for title 17, United States Code, is amended by add-
ing after the item relating to chapter 11 the following:
‘‘12. Copyright Protection and Management Systems ......... 1201’’.
SEC. 104. DEVELOPMENT AND IMPLEMENTATION OF TECH-
NOLOGICAL PROTECTION MEASURES.
(a) STATEMENT OF CONGRESSIONAL POLICY AND
OBJECTIVE.—It is the sense of the Congress that techno-
logical measures that effectively control access to works
protected under title 17, United States Code, or that effec-
tively protect a right of a copyright owner under such title
play a crucial role in safeguarding the interests 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
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of rights under title 17, United States Code. Accordingly,
the expeditious implementation of such measures, devel-
oped by the private sector 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 MEASURES.—The technological
measures referred to in subsection (a) shall include, but
not be limited to, those which—
(1) enable nonprofit libraries, for nonprofit pur-
poses, to continue to lend to library users copies or
phonorecords that such libraries have lawfully ac-
quired, including the lending of such copies or
phonorecords in digital formats in a manner that
prevents infringement;
(2) effectively protect against the infringement
of exclusive rights under title 17, United States
Code, and facilitate the exercise of those exclusive
rights; and
(3) promote the development and implementa-
tion of diverse methods, mechanisms, and arrange-
ments in the marketplace for making available copy-
righted works in digital formats which provide op-
portunities for individual members of the public to
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make lawful uses of copyrighted works in digital for-
mats.
(c) PROCEDURES
FOR DEVELOPING
AND IMPLE-
MENTING
TECHNOLOGICAL
MEASURES.—The techno-
logical measures whose development and implementation
the Congress anticipates include, but are not limited to,
those which—
(1) are developed pursuant to a broad consen-
sus in an open, fair, voluntary, and multi-industry
process;
(2) are made available on reasonable and non-
discriminatory terms; and
(3) do not impose substantial costs or burdens
on copyright owners or on manufacturers of hard-
ware or software used in conjunction with copy-
righted works in digital formats.
(d) OVERSIGHT AND REPORTING.—(1) The Under
Secretary of Commerce for Intellectual Property Policy,
the Assistant Secretary of Commerce for Communications
and Information, and the Register of Copyrights shall
jointly review the impact of the enactment of section 1201
of title 17, United States Code, on the access of individual
users to copyrighted works in digital formats and shall
jointly report annually thereon to the Committees on the
Judiciary and on Commerce of the House of Representa-
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tives and the Committees on the Judiciary and on Com-
merce, Science, and Transportation of the Senate.
(2) Each report under paragraph (1) shall address
the following issues:
(A) The status of the development and imple-
mentation of technological measures described in
this section, including measures that advance the ob-
jectives of this section, and the effectiveness of such
technological 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 access 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
generally;
(iv) are required to pay copyright owners
or intermediaries for each lawful use of copy-
righted works in digital formats to which they
have access; and
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(v) are able to utilize nonprofit libraries to
obtain access, through borrowing without pay-
ment by the user, to copyrighted works in digi-
tal formats.
(C) The degree to which infringement of copy-
righted works in digital formats is occurring.
(D) Whether and the extent to which section
1201 of title 17, United States Code, is asserted as
a basis for liability in claims brought against per-
sons conducting research and development, including
reverse engineering of copyrighted works, and the
extent to which such claims constitute a serious im-
pediment to the development and production of com-
petitive goods and services.
(E) The degree to which individual users of
copyrighted materials in digital formats are able ef-
fectively to protect themselves against the use of
technological measures to carry out or facilitate the
undisclosed collection and dissemination of person-
ally identifying information concerning the access to
and use of such materials by such users.
(F) Such other issues as the Under Secretary
of Commerce for Intellectual Property Policy, the
Assistant Secretary of Commerce for Communica-
tions and Information, and the Register of Copy-
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rights identify as relevant to the impact of the en-
actment of section 1201 of title 17, United States
Code, on the access of individual users to copy-
righted works in digital formats.
(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 Under Secretary of Commerce for Intellectual Prop-
erty Policy, the Assistant Secretary of Commerce for Com-
munications and Information, and the Register of Copy-
rights consider advisable in order to further the objectives
of this section.
SEC. 105. EVALUATION OF IMPACT OF COPYRIGHT LAW
AND AMENDMENTS ON ELECTRONIC COM-
MERCE 
AND 
TECHNOLOGICAL 
DEVELOP-
MENT.
(a) EVALUATION BY UNDER SECRETARY OF COM-
MERCE AND REGISTER OF COPYRIGHTS.—The Under Sec-
retary of Commerce for Intellectual Property Policy, the
Assistant Secretary of Commerce for Communications and
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Information, and the Register of Copyrights shall jointly
evaluate—
(1) the effects of the amendments made by this
title and the development of electronic commerce
and associated technology on the operation of sec-
tions 109 and 117 of title 17, United States Code;
and
(2) the relationship between existing and emer-
gent technology and the operation of sections 109
and 117 of title 17, United States Code.
(c) REPORT TO CONGRESS.—The Under Secretary of
Commerce for Intellectual Property Policy, the Assistant
Secretary of Commerce for Communications and Informa-
tion, and the Register of Copyrights shall, not later than
24 months after the date of the enactment of this Act,
submit to the Congress a joint report on the evaluation
conducted under subsection (b), including any legislative
recommendations the Under Secretary, the Assistant Sec-
retary, and the Register may have.
SEC. 106. EFFECTIVE DATE.
(a) IN GENERAL.—Subject to subsection (b), this
title and the amendments made by this title shall take ef-
fect on the date of the enactment of this Act.
(b) AMENDMENTS RELATING TO CERTAIN INTER-
NATIONAL AGREEMENTS.—(1) The following shall take ef-
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fect upon the 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)(4) of this Act.
(B) The amendment made by section 102(a)(6)
of this Act.
(C) Subparagraph (C) of section 104A(h)(1) of
title 17, United States Code, as amended by section
102(c)(1) of this Act.
(D) Subparagraph (C) of section 104A(h)(3) of
title 17, United States Code, as amended by section
102(c)(2) of this Act.
(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)(4) of this Act.
(B) The amendment made by section 102(a)(7)
of this Act.
(C) The amendment made by section 102(b)(2)
of this Act.
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(D) Subparagraph (D) of section 104A(h)(1) of
title 17, United States Code, as amended by section
102(c)(1) of this Act.
(E) Subparagraph (D) of section 104A(h)(3) of
title 17, United States Code, as amended by section
102(c)(2) of this Act.
(F) The amendments made by section 102(c)(3)
of this Act.
TITLE 
II—ONLINE 
COPYRIGHT
INFRINGEMENT 
LIABILITY
LIMITATION
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Online Copyright In-
fringement Liability Limitation Act’’.
SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT IN-
FRINGEMENT.
(a) IN GENERAL.—Chapter 5 of title 17, United
States Code, is amended by adding after section 511 the
following new section:
‘‘§ 512. Limitations on liability relating to material
online
‘‘(a) TRANSITORY DIGITAL NETWORK COMMUNICA-
TIONS.—A service provider shall not be liable for monetary
relief, or, except as provided in subsection (i), for injunc-
tive or other equitable relief, for infringement of copyright
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by reason of the provider’s transmitting, routing, or pro-
viding connections for, material through a system or net-
work controlled or operated by or for the service provider,
or by reason of the intermediate and transient storage of
that material in the course of such transmitting, routing,
or providing connections, if—
‘‘(1) the transmission of the material was initi-
ated by or at the direction of a person other than
the service provider;
‘‘(2) the transmission, routing, provision of con-
nections, or storage is carried out through an auto-
matic technical process without selection of the ma-
terial by the service provider;
‘‘(3) the service provider does not select the re-
cipients of the material except as an automatic re-
sponse to the request of another person;
‘‘(4) no copy of the material made by the serv-
ice provider in the course of such intermediate or
transient storage is maintained 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 accessible to such anticipated recipients
for a longer period than is reasonably necessary for
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the transmission, routing, or provision of connec-
tions; and
‘‘(5) the material is transmitted through the
system or network without modification of its con-
tent.
‘‘(b) SYSTEM CACHING.—
‘‘(1) LIMITATION ON LIABILITY.—A service pro-
vider shall not be liable for monetary relief, or, ex-
cept as provided in subsection (i), for injunctive or
other equitable relief, for infringement of copyright
by reason of the intermediate and temporary storage
of material on a system or network controlled or op-
erated by or for the service provider in a case in
which—
‘‘(A) the material is made available online
by a person other than the service provider,
‘‘(B) the material is transmitted from the
person described in subparagraph (A) through
the system or network to a person other than
the person described in subparagraph (A) at
the direction of that other person, and
‘‘(C) the storage is carried out through an
automatic technical process for the purpose of
making the material available to users of the
system or network who, after the material is
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transmitted as described in subparagraph (B),
request access to the material from the person
described in subparagraph (A),
if the conditions set forth in paragraph (2) are met.
(2) CONDITIONS.—The conditions referred to in
paragraph (1) are that—
‘‘(A) the material described in paragraph
(1) is transmitted to the subsequent users de-
scribed in paragraph (1)(C) without modifica-
tion to its content from the manner in which
the material was transmitted from the person
described in paragraph (1)(A);
‘‘(B) the service provider described in
paragraph (1) complies with rules concerning
the refreshing, reloading, or other updating of
the material when specified by the person mak-
ing the material available online in accordance
with a generally accepted industry standard
data communications protocol for the system or
network through which that person makes the
material available, except that this subpara-
graph applies only if those rules are not used
by the person described in paragraph (1)(A) to
prevent or unreasonably impair the intermedi-
ate storage to which this subsection applies;
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‘‘(C) the service provider does not interfere
with the ability of technology associated with
the material to return to the person described
in paragraph (1)(A) the information that would
have been available to that person if the mate-
rial had been obtained by the subsequent users
described in paragraph (1)(C) directly from
that person, except that this subparagraph ap-
plies only if that technology—
‘‘(i) does not significantly interfere
with the performance of the provider’s sys-
tem or network or with the intermediate
storage of the material;
‘‘(ii) is consistent with generally ac-
cepted industry standard communications
protocols; and
‘‘(iii) does not extract information
from the provider’s system or network
other than the information that would have
been available to the person described in
paragraph (1)(A) if the subsequent users
had gained access to the material directly
from that person;
‘‘(D) if the person described in paragraph
(1)(A) has in effect a condition that a person
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must meet prior to having access to the mate-
rial, such as a condition based on payment of
a fee or provision of a password or other infor-
mation, the service provider permits access to
the stored material in significant part only to
users of its system or network that have met
those conditions and only in accordance with
those conditions; and
‘‘(E) if the person described in paragraph
(1)(A) makes that material available online
without the authorization of the copyright
owner of the material, the service provider re-
sponds expeditiously to remove, or disable ac-
cess to, the material that is claimed to be in-
fringing upon notification of claimed infringe-
ment as described in subsection (c)(3), except
that this subparagraph applies only if—
‘‘(i) the material has previously been
removed from the originating site or access
to it has been disabled, or a court has or-
dered that the material be removed from
the originating site or that access to the
material on the originating site be dis-
abled; and
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‘‘(ii) the party giving the notification
includes in the notification a statement
confirming that the material has been re-
moved from the originating site or access
to it has been disabled or that a court has
ordered that the material be removed from
the originating site or that access to the
material on the originating site be dis-
abled.
‘‘(c) INFORMATION RESIDING ON SYSTEMS OR
NETWORKS AT DIRECTION OF USERS.—
‘‘(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 re-
lief, for infringement of copyright by reason of the
storage at the direction of a user of material that re-
sides on a system or network controlled or operated
by or for the service provider, if the service pro-
vider—
‘‘(A)(i) does not have actual knowledge
that the material or an activity using the mate-
rial on the system or network 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
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‘‘(iii) upon obtaining such knowledge or
awareness, acts expeditiously to remove, or dis-
able access to, the material;
‘‘(B) does not receive a financial benefit di-
rectly attributable to the infringing activity, in
a case in which the service provider has the
right and ability to control such activity; and
‘‘(C) upon notification of claimed infringe-
ment as described in paragraph (4), responds
expeditiously to remove, or disable access to,
the material that is claimed to be infringing or
to be the subject of infringing activity.
‘‘(2) LIMITATION ON LIABILITY OF NONPROFIT
EDUCATIONAL
INSTITUTIONS.—A nonprofit edu-
cational institution that is a service provider shall
not be liable for monetary relief, or, except as pro-
vided in subsection (i), for injunctive or other equi-
table relief, by reason of the acts or omissions of a
faculty member, administrative employee, student, or
graduate student, unless such faculty member, ad-
ministrative employee, student, or graduate student
is exercising managerial or operational responsibil-
ities that directly relate to the institution’s function
as a service provider.
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‘‘(3) DESIGNATED AGENT.—The limitations on
liability established in this subsection apply to a
service provider only if the service provider has des-
ignated an agent to receive notifications of claimed
infringement described in paragraph (4), by making
available through its service, including on its website
in a location accessible to the public, and by provid-
ing to the Copyright Office, substantially the follow-
ing information:
‘‘(A) the name, address, phone number,
and electronic mail address of the agent.
‘‘(B) other contact information which the
Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current
directory of agents available to the public for inspec-
tion, including through the Internet, in both elec-
tronic and hard copy formats, and may require pay-
ment of a fee by service providers to cover the costs
of maintaining the directory.
‘‘(4) ELEMENTS OF NOTIFICATION.—
‘‘(A) To be effective under this subsection,
a notification of claimed infringement must be
a written communication provided to the des-
ignated agent of a service provider that includes
substantially the following:
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‘‘(i) A physical or electronic signature
of a person authorized to act on behalf of
the owner of an exclusive right that is al-
legedly infringed.
‘‘(ii) Identification of the copyrighted
work claimed to have been infringed, or, if
multiple copyrighted works at a single on-
line site are covered by a single notifica-
tion, a representative list of such works at
that site.
‘‘(iii) Identification of the material
that is claimed to be infringing or to be
the subject of infringing activity and 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 material.
‘‘(iv) Information reasonably sufficient
to permit the service provider to contact
the complaining party, such as an address,
telephone number, and, if available, an
electronic mail address at which the com-
plaining party may be contacted.
‘‘(v) A statement that the complaining
party has a good faith belief that use of
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promptly attempts to contact the person mak-
ing the notification or takes other reasonable
steps to assist in the receipt of notification that
substantially complies with all the provisions of
subparagraph (A).
‘‘(d) INFORMATION LOCATION TOOLS.—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 of copyright by reason of the
provider referring or linking users to an online location
containing infringing material or infringing activity, by
using information location tools, including a directory,
index, reference, pointer, or hypertext link, if the service
provider—
‘‘(1)(A) does not have actual knowledge that
the material or activity is infringing;
‘‘(B) in the absence of such actual knowledge,
is not aware of facts or circumstances from which
infringing activity is apparent; or
‘‘(C) upon obtaining such knowledge or aware-
ness, acts expeditiously to remove, or disable access
to, the material;
‘‘(2) does not receive a financial benefit directly
attributable to the infringing activity, in a case in
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which the service provider has the right and ability
to control such activity; and
‘‘(3) upon notification of claimed infringement
as described in subsection (c)(4), responds expedi-
tiously to remove, or disable access to, the material
that is claimed to be infringing or to be the subject
of infringing activity, except that, for purposes of
this paragraph, the information described in sub-
section (c)(4)(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
that 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
disabled 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 a service provider, who is injured by such misrepresen-
tation, as the result of the service provider relying upon
such misrepresentation in removing or disabling access to
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the material or activity claimed to be infringing, or in re-
placing the removed material or ceasing to disable access
to it.
‘‘(f) REPLACEMENT OF REMOVED OR DISABLED MA-
TERIAL AND LIMITATION ON OTHER LIABILITY.—
‘‘(1) NO LIABILITY FOR TAKING DOWN GEN-
ERALLY.—Subject to paragraph (2), a service pro-
vider 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 activity
claimed to be infringing or based on facts or cir-
cumstances from which infringing activity is appar-
ent, regardless of whether the material or activity is
ultimately determined to be infringing.
‘‘(2) EXCEPTION.—Paragraph (1) 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 no-
tice provided under subsection (c)(1)(C), unless the
service provider—
‘‘(A) takes reasonable steps promptly to
notify the subscriber that it has removed or dis-
abled access to the material;
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‘‘(B) upon receipt of a counter notification
described in paragraph (3), promptly provides
the person who provided the notification under
subsection (c)(1)(C) with a copy of the counter
notification, and informs that person that it will
replace the removed material or cease disabling
access to it in 10 business days; and
‘‘(C) replaces the removed material and
ceases disabling access to it not less than 10,
nor more than 14, business days following re-
ceipt of the counter notice, unless its designated
agent first receives notice from the person who
submitted the notification under subsection
(c)(1)(C) that such person has filed an action
seeking a court order to restrain the subscriber
from engaging in infringing activity relating to
the material on the service provider’s system or
network.
‘‘(3) CONTENTS OF COUNTER NOTIFICATION.—
To be effective under this subsection, a counter noti-
fication must be a written communication provided
to the service provider’s designated agent that in-
cludes substantially the following:
‘‘(A) A physical or electronic signature of
the subscriber.
HR 2281 PCS
‘‘(B) Identification of the material that has
been removed or to which access has been dis-
abled and the location at which the material ap-
peared before it was removed or access to it 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 re-
sult of mistake or misidentification of the mate-
rial to be removed or disabled.
‘‘(D) The subscriber’s name, address, and
telephone number, and a statement that the
subscriber consents to the jurisdiction of Fed-
eral District Court for the judicial district in
which the address is located, or if the subscrib-
er’s address is outside of the United States, for
any judicial district in which the service pro-
vider may be found, and that the subscriber will
accept service of process from the person who
provided notification under subsection (c)(1)(C)
or an agent of such person.
‘‘(4) LIMITATION
ON
OTHER
LIABILITY.—A
service provider’s compliance with paragraph (2)
shall not subject the service provider to liability for
copyright infringement with respect to the material
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identified in the notice provided under subsection
(c)(1)(C).
‘‘(g) SUBPOENA TO IDENTIFY INFRINGER.—
‘‘(1) REQUEST.—A copyright owner or a person
authorized to act on the owner’s behalf may request
the clerk of any United States district court to issue
a subpoena to a service provider for identification of
an alleged infringer in accordance with this sub-
section.
‘‘(2) CONTENTS
OF
REQUEST.—The request
may be made by filing with the clerk—
‘‘(A) a copy of a notification described in
subsection (c)(4)(A);
‘‘(B) a proposed subpoena; and
‘‘(C) a sworn declaration to the effect that
the purpose for which the subpoena is sought is
to obtain the identity of an alleged infringer
and that such information will only be used for
the purpose of protecting rights under this title.
‘‘(3) CONTENTS OF SUBPOENA.—The subpoena
shall authorize and order the service provider receiv-
ing the notification and the subpoena to expedi-
tiously disclose to the copyright owner or person au-
thorized by the copyright owner information suffi-
cient to identify the alleged infringer of the material
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described in the notification to the extent such infor-
mation is available to the service provider.
‘‘(4) BASIS FOR GRANTING SUBPOENA.—If the
notification filed satisfies the provisions of sub-
section (c)(4)(A), the proposed subpoena is in proper
form, and the accompanying declaration is properly
executed, the clerk shall expeditiously issue and sign
the proposed subpoena and return it to the requester
for delivery to the service provider.
‘‘(5) ACTIONS OF SERVICE PROVIDER RECEIV-
ING SUBPOENA.—Upon receipt of the issued sub-
poena, either accompanying or subsequent to the re-
ceipt of a notification described in subsection
(c)(4)(A), the service provider shall expeditiously
disclose to the copyright owner or person authorized
by the copyright owner the information required by
the subpoena, notwithstanding any other provision of
law and regardless of whether the service provider
responds to the notification.
‘‘(6) RULES APPLICABLE TO SUBPOENA.—Un-
less otherwise provided by this section or by applica-
ble rules of the court, the procedure for issuance and
delivery of the subpoena, and the remedies for non-
compliance with the subpoena, shall be governed to
the greatest extent practicable by those provisions of