Digital Millennium Copyright Act
PL 105-304 (H.R.2281), enacted 10/28/1998

112 STAT. 2860 
PUBLIC LAW 105-304^OCT. 28, 1998 
Public Law 105-304 
105th Congress 
An Act 
_. 
„ 
iQQS 
'^^ amend title 17, United States Code, to implement the World Intellectual Property 
—_— ' 
Organization Copyright Treaty and Performances and Phonograms Treaty, and 
[H.R. 2281] 
for other purposes. 
17 u s e 101 note. 
Be it enacted by the Senate and House of Representatives 
of 
United States of America in Congress assembled, 
n O N 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 TREATIES IMPLEMENTATION 
Sec, 101, Short title. 
Sec, 102. Technical amendments. 
Sec, 103, Copyright protection systems and copyright management information. 
Sec, 104. Evaluation of impact of copyright law and amendments on electronic 
commerce and technological development. 
Sec. 105. Effective date. 
TITLE II—ONLINE COPYRIGHT INFRINGEMENT UABILITY 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 
Sec. 401. Provisions Relating to the Commissioner of Patents and Trademarks and 
the Register of Copyrights. 
Sec. 402. Ephemeral recordings. 
Sec. 403. Limitations on exclusive rights; distance education. 
Sec. 404. Exemption for libraries and archives. 
Sec. 405. Scope of exclusive rights in sound recordings; ephemeral recordings. 
Sec. 406. Assumption of contractual obligations related to transfers of rights in 
motion pictures. 
Sec. 407. Effective date. 
TITLE V—PROTECTION OF CERTAIN ORIGINAL DESIGNS 
Sec. 501. Short title. 
Sec. 502. Protection of certain original designs. 
Sec. 503. Conforming amendments. 
Sec. 504. Joint study of the effect of this title. 
Sec. 505. Effective date. 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2861 
TITLE I—WIPO TREATIES 
IMPLEMENTATION 
SEC. 101. SHORT TITLE. 
This title may be cited as the "WIPO Copyright and Perform-
ances and Phonograms Treaties Implementation Act of 1998". 
SEC, 102. TECHNICAL AMENDMENTS. 
(a) DEFINITIONS.—Section 101 of title 17, United States Code, 
is amended— 
(1) by striking the definition of "Berne Convention work"; 
(2) in the definition of "The 'country of origin' of a Berne 
Convention work"— 
(A) by striking "The 'country of origin' of a Berne 
Convention work, for purposes of section 411, is the United 
States if and inserting "For purposes of section 411, a 
work is a 'United States work' only if; 
(B) in paragraph (1)— 
(i) in subparagraph (B) by striking "nation or 
nations adhering to the Berne Convention" and insert-
ing "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 Convention 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 
i^ainst 
Unauthorized Duplication of Their Phonograms, concluded at 
CJeneva, Switzerland, on October 29, 1971."; 
(4) by inserting after the definition of "including" the 
following: 
"An 'international agreement' is— 
"(1) the Universal Copyright Convention; 
"(2) the Geneva Phonograms Convention; 
"(3) the Berne Convention; 
"(4) the WTO Agreement; 
"(5) the WIPO Copyright Treaty; 
"(6) the WIPO Performances and Phonograms Treaty; 
and 
"(7) any other copyright treaty to which the United 
States is a party."; 
(5) by inserting after the definition of "transmit" the 
following: 
"A 'treaty party' is a country or 
intergovernmental 
organization other than the United States that is a party to 
an international agreement."; 
(6) by inserting after the definition of "widow" the following: 
WIPO Copyright 
and 
Performances 
and Phonograms 
Treaties 
Implementation 
Act of 1998. 
17 u s e 101 note. 
112 STAT. 2862 
PUBLIC LAW 105-304—OCT. 28, 1998 
"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 Copy-
right Treaty'" the following: 
"The 'WIPO Performances and Phonograms Treaty' is the 
WIPO Performances and Phonograms Treaty concluded at 
Geneva, Switzerland, on December 20, 1996."; and 
(8) by inserting after the definition of "work made for 
hire" the following: 
"The terms 'WTO Agreement' and 'WTO member country* 
have the meanings given those terms in paragraphs (9) and 
(10), respectively, of section 2 of the Uruguay Round Agree-
ments 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 cop3rright treaty to which the United States 
is also a party" and inserting "treaty party"; 
(B) in paragraph (2) by striking "party to the Universal 
Copyright Convention" and inserting "treaty party"; 
(C) by redesignating paragraph (5) as paragraph (6); 
(D) by redesignating paragraph (3) as paragraph (5) 
and inserting it after paragraph (4); 
(E) by inserting after paragraph (2) the following: 
"(3) the work is a sound recording that was-first fixed 
in a treaty party; or"; 
(F) in paragraph (4) by striking "Berne Convention 
work" and inserting "pictorial, graphic, or sculptural work 
that is incorporated in a building or other structure, or 
an architectural 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 subsection: 
"(d) EFFECT OF PHONOGRAMS TREATIES.—Notwithstanding the 
provisions of subsection (b), no works other than sound recordings 
shall be eligible for protection under this title solely by virtue 
of the adherence of the United States to the Geneva Phonograms 
Convention or the WIPO Performances and Phonograms Treaty.". 
(c) COPYRIGHT IN RESTORED WORKS.—Section 104A(h) of title 
17, United States Code, is amended— 
(1) in paragraph (1), by striking subparagraphs (A) and 
(B) and inserting the following: 
"(A) a nation adhering to the Berne Convention; 
"(B) a WTO member country; 
"(C) a nation adhering to the WIPO Copyright Treaty; 
"(D) a nation adhering to the WIPO Performances and 
Phonograms Treaty; or 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2863 
"(E) subject to a Presidential proclamation under sub-
section (g)."; 
(2) by amending paragraph (3) to read as follows: 
"(3) The term 'eligible country' means a nation, other than 
the United States, that— 
"(A) becomes a WTO member country after the date 
of the enactment of the Uruguay Round Agreements Act; 
"(B) on such date of enactment is, or after such date 
of enactment becomes, a nation adhering to the Berne 
Convention; 
"(C) adheres to the WIPO Copyright Treaty; 
"(D) 
adheres 
to 
the 
WIPO 
Performances 
and 
Phonograms Treaty; or 
"(E) after such date of enactment becomes subject to 
a proclamation under subsection (g)."; 
(3) in paragraph (6)— 
(A) in subparagraph (C)(iii) by striking "and" after 
the semicolon; 
(B) at the end of subparagraph (D) by striking the 
period and 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 adherence to the WIPO 
Performances and Phonograms Treaty, is a sound record-
ing."; 
(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 
(2) by inserting "United States" after "no action for infringe-
ment 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 COPYRIGHT 
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. 
"§ 1201. Circumvention of copyright protection systems 
"(a) 
VIOLATIONS REGARDING CIRCUMVENTION OF TECHNO-
LOGICAL MEASURES.—(1)(A) No person shall circumvent a techno-
logical measure that effectively controls access to a work protected 
112 STAT. 2864 
PUBLIC LAW 105-304—OCT. 28, 1998 
Effective date. 
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. 
"(B) The prohibition contained in subparagraph (A) shall not 
apply to persons who are users of a copyrighted work which is 
in a particular class of works, if such persons are, or are likely 
to be in the succeeding 3-year period, adversely affected by virtue 
of such prohibition in their ability to make noninfringing uses 
of that particular class of works under this title, as determined 
under subparagraph (C). 
Reports. 
"(C) During the 2-year period described in subparagraph (A), 
Regulations. 
and during each succeeding 3-year period, the Librarian of Con-
gress, upon the recommendation of the Register of Copj^^ights, 
who shall consult with the Assistant Secretary for Communications 
and Information of the Department of Commerce and report and 
comment on his or her views in making such recommendation, 
shall make the determination in a rulemaking proceeding on the 
record for purposes of subparagraph (B) of whether persons who 
are users of a copjn^ighted work are, or are likely to be in the 
succeeding 3-year period, adversely affected by the prohibition 
under subparagraph (A) in their ability to make noninfringing 
uses under this title of a particular class of copyrighted works. 
In conducting such rulemaking, the Librarian shall examine— 
"(i) the availability for use of copyrighted works; 
"(ii) the availability for use of works for nonprofit archival, 
preservation, and educational purposes; 
"(iii) the impact that the prohibition on the circumvention 
of technological measures applied to copyrighted works has 
on criticism, comment, news reporting, teaching, scholarship, 
or research; 
"(iv) the effect of circumvention of technological measures 
on the market for or value of copyrighted works; and 
"(v) such other factors as the Librarian considers appro-
priate. 
Publication. 
"(D) The Librarian shall publish any class of copyrighted works 
for which the Librarian has determined, pursuant to the rulemaking 
conducted under subparagraph (C), that noninfringing uses by per-
sons who are users of a copyrighted work are, or are likely to 
be, adversely affected, and the prohibition contained in subpara-
graph (A) shall not apply to such users with respect to such class 
of works for the ensuing 3-year period. 
"(E) Neither the exception under subparagraph (B) from the 
applicability of the prohibition contained in subparagraph (A), nor 
any determination made in a rulemaking conducted under subpara-
graph (C), may be used as a defense in any action to enforce 
any provision of this title other than this paragraph. 
"(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 con-
trols access to a work protected under this title; 
"(B) has only limited commercially significant purpose or 
use other than to circumvent a technological measure that 
effectively controls access to a work protected under this title; 
or 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2865 
"(C) is marketed by that person or another acting in concert 
with that person with that person's knowledge for use in cir-
cumventing 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, remove, deactivate, or impair 
a technological measure, without the authority of the copyright 
owner; and 
"(B) a technological measure 'effectively controls access to 
a work' if the measure, in the ordinary course of its operation, 
requires the application of information, or a process or a treat-
ment, 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 otherwise 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 techno-
logical 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 acting in concert 
with that person with that person's knowledge for use in cir-
cumventing 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. 
"(2) As used in this subsection— 
"(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 protects a right 
of a copyright owner under this title' if the measure, in the 
ordinary course of its operation, prevents, restricts, or otherwise 
limits the exercise 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, limitations, 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 infringement in connection 
with any technology, product, service, device, component, or part 
thereof. 
"(3) Nothing in this section shall require that the design of, 
or design and selection of parts and components for, a consumer 
electronics, telecommunications, or computing product provide for 
a response to any particular technological measure, so long as 
such part or component, or the product in which such part or 
component is integrated, does not otherwise fall within the prohibi-
tions of subsection (a)(2) or (b)(1). 
112 STAT. 2866 
PUBLIC LAW 105-304—OCT. 28, 1998 
"(4) Nothing in this section shall enlarge or diminish any rights 
of free speech or the press for activities using consumer electronics, 
telecommunications, or computing products. 
"(d) EXEMPTION FOR NONPROFIT LIBRARIES, ARCHIVES, AND EDU-
CATIONAL INSTITUTIONS.—(1) A nonprofit library, archives, or edu-
cational 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 identical copy of that 
work is not reasonably available in another form. 
"(3) A nonprofit library, archives, or educational institution 
that willfully for the purpose of commercial advantage or financial 
gain violates paragraph (1)— 
"(A) shall, for the first offense, be subject to the civil 
remedies under section 1203; and 
"(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 educational institution to manufac-
ture, import, offer to the public, provide, or otherwise traffic in 
any technology, product, service, component, or part thereof, which 
circumvents a technological measure. 
"(5) In order for a library or archives to qualify for the exemp-
tion 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, INTELLIGENCE, AND OTHER GOVERN-
MENT ACTIVITIES.—^This section does not prohibit any lawfully 
authorized investigative, protective, information security, or intel-
ligence 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. For purposes of this subsection, 
the term 'information security' means activities carried out in order 
to identify and address the vulnerabilities of a government com-
puter, computer system, or computer network. 
"(f) REVERSE ENGINEERING.—(1) Notwithstanding the provi-
sions of subsection (a)(1)(A), a person who has lawfully obtained 
the right to use a copy of a computer program may circumvent 
a technological measure that effectively controls access to a particu-
lar 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 independently created computer 
program with other programs, and that have not previously been 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2867 
readily available to the person engaging in the circumvention, to 
the extent any such acts of identification and analysis do not 
constitute infringement under this title. 
"(2) Notwithstanding the provisions of subsections (a)(2) and 
(b), a person may develop and employ technological means to cir-
cumvent a technological measure, or to circumvent protection 
afforded by a technological measure, in order to enable the identi-
fication and analysis under paragraph (1), or for the purpose of 
enabling interoperability of an independently created computer pro-
gram with other programs, if such means are necessary to achieve 
such interoperability, to the extent that doing so does not constitute 
infringement under this title. 
"(3) The information acquired through the acts permitted under 
paragraph (1), and the means permitted under paragraph (2), may 
be made available to others if the person referred to in paragraph 
(1) or (2), as the case may be, provides such information or means 
solely for the purpose of enabling interoperability of an independ-
ently created computer program with other programs, and to the 
extent that doing so does not constitute infringement under this 
title or violate applicable law other than this section. 
"(4) For purposes of this subsection, the term 'interoperability* 
means the ability of computer programs to exchange information, 
and of such programs mutually to use the information which has 
been exchanged. 
"(g) ENCRYPTION RESEARCH.— 
"(1) DEFINITIONS.—For purposes of this subsection— 
"(A) the term 'encryption research' means activities 
necessary to identify and analyze flaws and vulnerabilities 
of encryption technologies 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 
"(B) the term 'encryption technology* means the scram-
bling and descrambling of information using mathematical 
formulas or algorithms. 
"(2) PERMISSIBLE ACTS OF ENCRYPTION RESEARCH .^Not-
withstanding the provisions of subsection (a)(1)(A), it is not 
a violation of that subsection for a person to circumvent a 
technological measure as applied to a copy, phonorecord, 
performance, 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 circumvention; and 
"(D) such act does not constitute infringement under 
this title or a violation of applicable law other than this 
section, including section 1030 of title 18 and those provi-
sions of title 18 amended by the Computer Fraud and 
Abuse Act of 1986. 
"(3) FACTORS IN DETERMINING EXEMPTION.—In determining 
whether a person qualifies for the exemption under paragraph 
(2), the factors to be considered shall include— 
"(A) whether 
the 
information 
derived from 
the 
encryption research was disseminated, and if so, whether 
112 STAT. 2868 
PUBLIC LAW 105-304—OCT. 28, 1998 
it was disseminated in a manner reasonably calculated 
to advance the state of knowledge or development of 
encryption technology, 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 copyright owner 
of the work to which the technological 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 RESEARCH ACTIVI-
TIES.—^Notwithstanding the provisions of subsection (a)(2), it 
is not a violation of that subsection for a person to— 
"(A) develop and employ technological means to cir-
cumvent a technological measure for the sole purpose of 
that person performing the acts of good faith encryption 
research described 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 paragraph (2). 
DeadUne. 
"(5) REPORT TO CONGRESS.—Not later than 1 year after 
the date of the enactment of this chapter, the Register of 
Copyrights and the Assistant Secretary for Communications 
and Information of the Department of Commerce shall jointly 
report to the Congress on the effect this subsection has had 
on— 
"(A) encr3^tion research and the development of 
encryption technology; 
"(B) the adequacy and effectiveness of technological 
measures designed to protect copyrighted works; and 
"(C) protection of cop3ndght owners against 
the 
unauthorized access to their encrypted copyrighted works. 
The report shall include legislative recommendations, if any. 
"(h) EXCEPTIONS REGARDING MINORS.—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 device, which— 
"(1) does not itself violate the provisions of this title; and 
"(2) has the sole purpose to prevent the access of minors 
to material on the Internet. 
"(i) PROTECTION OF PERSONALLY IDENTIFYING INFORMATION.— 
(1) 
CIRCUMVENTION 
PERMITTED.—Notwithstanding 
the 
provisions of subsection (a)(1)(A), it is not a violation of that 
subsection for a person to circumvent 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 collecting or disseminating 
personally identifying information reflecting the online 
activities of a natural person who seeks to gain access 
to the work protected; 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2869 
"(B) in the normal course of its operation, the techno-
logical measure, or the work it protects, collects or dissemi-
nates personally identifying information about the person 
who seeks to gain access to the work protected, without 
providing conspicuous notice of such collection or dissemi-
nation to such person, and without providing such person 
with the capability to prevent or restrict such collection 
or dissemination; 
"(C) the act of circumvention has the sole effect of 
identifying and 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 collection or dissemination 
of personally identifying information about a natural per-
son who seeks to gain access to the work protected, and 
is not in violation of any other law. 
"(2) 
INAPPLICABILITY 
TO 
CERTAIN 
TECHNOLOGICAL 
MEASURES.—^This subsection does not apply to a technological 
measure, or a work it protects, that does not collect or dissemi-
nate personally identifying information and that is disclosed 
to a user as not having or using such capability. 
"(j) SECURITY TESTING.— 
"(1) DEFINITION.—^For purposes of this subsection, the term 
'security testing' means accessing a computer, computer system, 
or computer network, solely for the purpose of good faith test-
ing, investigating, or correcting, a security flaw or vulnerability, 
with the authorization of the owner or operator of such com-
puter, computer system, or computer network. 
"(2) PERMISSIBLE ACTS OF SECURITY TESTING.—^Notwith-
standing the provisions of subsection (a)(1)(A), it is not a viola-
tion of that subsection for a person to engage in an act of 
security testing, if such act does not constitute infringement 
under this title or a violation of applicable law other than 
this section, including section 1030 of title 18 and those provi-
sions of title 18 amended by the Computer Fraud and Abuse 
Act of 1986. 
"(3) FACTORS IN DETERMINING EXEMPTION.—In determining 
whether a person qualifies for the exemption under paragraph 
(2), the factors to be considered shall include— 
"(A) whether the information derived from the security 
testing was used solely to promote the security of the 
owner or operator of such computer, computer system or 
computer network, or shared directly with the developer 
of such computer, computer system, or computer network; 
and 
"(B) whether the information derived from the security 
testing was used or maintained in a manner that does 
not facilitate infringement under this title or a violation 
of applicable law other than this section, including a viola-
tion of privacy or breach of security. 
"(4) USE OF TECHNOLOGICAL MEANS FOR SECURITY TEST-
ING.—^Notwithstanding the provisions of subsection (a)(2), it 
is not a violation of that subsection for a person to develop, 
produce, distribute or employ technological means for the sole 
purpose of performing the acts of security testing described 
112 STAT. 2870 
PUBLIC LAW 105-304—OCT. 28, 1998 
in subsection (2), provided such technological means does not 
otherwise violate section (a)(2). 
"(k) CERTAIN ANALOG DEVICES AND CERTAIN TECHNOLOGICAL 
MEASURES.— 
"(1) CERTAIN ANALOG DEVICES.— 
Effective date. 
"(A) Effective 18 months after the date of the enact-
ment of this chapter, no person shall manufacture, import, 
offer to the public, provide or otherwise traffic in any— 
"(i) VHS format analog video cassette recorder 
unless such recorder conforms to the automatic gain 
control copy control technology; 
"(ii) 8mm format analog video cassette camcorder 
unless such camcorder conforms to the automatic gain 
control technology; 
"(iii) Beta format analog video cassette recorder, 
unless such recorder conforms to the automatic gain 
control copy cont 'ol technology, except that 
this 
requirement shall not apply until there are 1,000 Beta 
format analog video cassette recorders sold in the 
United States in any one calendar year after the date 
of the enactment of this chapter; 
"(iv) 8mm format analog video cassette recorder 
that is not an analog video cassette camcorder, unless 
such recorder conforms to the automatic gain control 
copy control technology, except that this requirement 
shall not apply until there are 20,000 such recorders 
sold in the United States in any one calendar year 
after the date of the enactment of this chapter; or 
"(v) analog video cassette recorder that records 
using an NTSC format video input and that is not 
otherwise covered under clauses (i) through (iv), unless 
such device conforms to the automatic gain control 
copy control technology. 
Effective date. 
"(B) Effective on the date of the enactment of this 
chapter, no person shall manufacture, import, offer to the 
public, provide or otherwise traffic in— 
"(i) any VHS format analog video cassette recorder 
or any 8mm format analog video cassette recorder if 
the design of the model of such recorder has been 
modified after such date of enactment so that a model 
of recorder that previously conformed to the automatic 
gain control copy control technology no longer conforms 
to such technology; or 
"(ii) any VHS format 
analog video 
cassette 
recorder, or any 8mm format analog video cassette 
recorder that is not an 8mm analog video cassette 
camcorder, if the design of the model of such recorder 
has been modified after such date of enactment so 
\ 
that a model of recorder that previously conformed 
to the four-line colorstripe copy control technology no 
longer conforms to such technology. 
Manufacturers that have not previously manufactured or 
sold a VHS format analog video cassette recorder, or an 
8mm format analog cassette recorder, shall be required 
to conform to the four-line colorstripe copy control tech-
nology in the initial model of any such recorder manufac-
tured after the date of the enactment of this chapter, 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2871 
and thereafter to continue conforming to the four-line 
colorstripe copy control technology. For purposes of this 
subparagraph, an analog video cassette recorder 'conforms 
to' the four-line colorstripe copy control technology if it 
records a signal that, when played back by the playback 
function of that recorder in the normal viewing mode, 
exhibits, on a reference display device, a display containing 
distracting visible lines through portions of the viewable 
picture. 
"(2) CERTAIN ENCODING RESTRICTIONS.—^No person shall 
apply the automatic gain control copy control technology or 
colorstripe copy control technology to prevent or limit consumer 
copying except such cop3dng— 
"(A) of a single transmission, or specified group of 
transmissions, of live events or of audiovisual works for 
which a member of the public has exercised choice in 
selecting the transmissions, including the content of the 
transmissions or the time of receipt of such transmissions, 
or both, and as to which such member is charged a separate 
fee for each such transmission or specified group of trans-
missions; 
"(B) from a copy of a transmission of a live event 
or an audiovisual work if such transmission is provided 
by a channel or service where payment is made by a 
member of the public for such channel or service in the 
form of a subscription fee that entitles the member of 
the public to receive all of the programming contained 
in such channel or service; 
"(C) from a physical medium containing one or more 
prerecorded audiovisual works; or 
"(D) from a copy of a transmission described in 
subparagraph (A) or from a copy made from a physical 
medium described in subparagraph (C). 
In the event that a transmission meets both the conditions 
set forth in subparagraph (A) and those set forth in subpara-
graph (B), the transmission shall be treated as a transmission 
described in subparagraph (A). 
"(3) INAPPLICABILITY.—^This subsection shall not— 
"(A) require any analog video cassette camcorder to 
conform to the automatic gain control copy control tech-
nology with respect to any video signal received through 
a camera lens; 
"(B) apply to the manufacture, importation, offer for 
sale, provision of, or other trafficking in, any professional 
analog video cassette recorder; or 
"(C) apply to the offer for sale or provision of, or 
other trafficking in, any previously owned analog video 
cassette recorder, if such recorder was legally manufactured 
and sold when new and not subsequently modified in viola-
tion of paragraph (1)(B). 
"(4) DEFINITIONS.—For purposes of this subsection: 
"(A) An 'analog video cassette recorder* means a device 
that records, or a device that includes a function that 
records, on electromagnetic tape in an analog format the 
electronic impulses produced by the video and audio por-
tions of a television program, motion picture, or other form 
of audiovisual work. 
112 STAT. 2872 
PUBLIC LAW 105-304—OCT. 28, 1998 
"(B) An 'analog video cassette camcorder' means an 
analog video cassette recorder that contains a recording 
function that operates through a camera lens and through 
a video input that may be connected with a television 
or other video playback device. 
"(C) An analog video cassette recorder 'conforms' to 
the automatic gain control copy control technology if it— 
"(i) detects one or more of the elements of such 
technology and does not record the motion picture or 
transmission protected by such technology; or 
"(ii) records a signal that, when played back, exhib-
its a meaningfully distorted or degraded display. 
"(D) The term 'professional analog video cassette 
recorder' means an analog video cassette recorder that 
is designed, manufactured, marketed, and intended for use 
by a person who regularly employs such a device for a 
lawful business or industrial use, including making, 
performing, displaying, distributing, or transmitting copies 
of motion pictures on a commercial scale. 
"(E) The terms 'VHS format', '8mm format', 'Beta for-
mat', 'automatic gain control copy control technology', 
'colorstripe copy control technology', 'four-line version of 
the colorstripe copy control technology, and 'NTSC have 
the meanings that are commonly understood in the con-
sumer electronics and motion picture industries as of the 
date of the enactment of this chapter. 
"(5) VIOLATIONS.—Any violation of paragraph (1) of this 
subsection shall be treated as a violation of subsection (b)(1) 
of this section. Any violation of paragraph (2) of this subsection 
shall be deemed an 'act of circumvention' for the purposes 
of section 1203(c)(3)(A) of this chapter. 
*
*
§ 1202. Integrity of copyright management information 
"(a) FALSE COPYRIGHT MANAGEMENT INFORMATION.—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 cop3n'ight manage-
ment information that is false. 
"(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT 
INFORMATION.—^No person shall, without the authority of the copy-
right owner or the law— 
"(1) intentionally remove or alter any cop5night manage-
ment information, 
"(2) distribute or import for distribution copjniight manage-
ment information knowing that the copyright management 
information has been removed or altered without authority 
of the copyright owner or the law, or 
"(3) distribute, import for distribution, or publicly perform 
works, copies of works, or phonorecords, knowing that copyright 
management information has been removed or altered without 
authority 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 induce, enable, 
facilitate, or conceal an infringement of any right under this title. 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2873 
"(c) DEFINITION.—As used in this section, the term 'copyright 
management information' means any of the following information 
conveyed in connection with copies or phonorecords of a work or 
performances or displays of a work, including in digital form, except 
that such term does not include any personally identifying informa-
tion 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 information about, 
the author of a work. 
"(3) The name of, and other identifying information 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 identif5dng 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 identif)dng informa-
tion about, a writer, performer, 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. 
"(8) Such other information as the Register of Copyrights 
may prescribe by regulation, except that the Register of Copy-
rights may not require the provision of any information concern-
ing the user of a copyrighted work. 
"(d) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERN-
MENT ACTIVITIES.—^This section does not prohibit any lawfully 
authorized investigative, protective, information security, or intel-
ligence activity of an ofRcer, 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. For purposes of this subsection, 
the term 'information security' means activities carried out in order 
to identify and address the vulnerabilities of a government com-
puter, computer system, or computer network. 
"(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 programming to such station or system, shall 
not be liable for a violation of subsection (b) if— 
"(A) avoiding the activity that constitutes such viola-
tion is not technically feasible or would create an undue 
financial hardship on such person; and 
"(B) such person did not intend, by engaging in such 
activity, to induce, enable, facilitate, or conceal infringe-
ment of a right under this title. 
"(2) DIGITAL TRANSMISSIONS.— 
"(A) If a digital transmission standard for the place-
ment of copyright management information for a category 
of works is set in a voluntary, consensus standard-setting 
process involving a representative cross-section of broadcast 
112 STAT. 2874 
PUBLIC LAW 105-304—OCT. 28, 1998 
stations or cable systems and copyright owners of a cat-
egory of works that are intended for public performance 
by such stations or systems, a person identified in para-
graph (1) shall not be liable for a violation of subsection 
(b) with respect to the particular copyright management 
information addressed by such standard if— 
"(i) the placement of such 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. 
"(B) Until a digital transmission standard has been 
set pursuant to subparagraph (A) with respect to the place-
ment of copyright management information for a category 
or works, a person identified in paragraph (1) shall not 
be liable for a violation of subsection (b) with respect to 
such copyright management information, if the activity 
that constitutes such violation is not intended to induce, 
enable, facilitate, or conceal infringement of a right under 
this title, and if— 
"(i) the transmission of such information by such 
person would result in a perceptible visual or aural 
degradation of the digital signal; or 
"(ii) the transmission of such information 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 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 
participation 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 stations or systems. 
"(3) DEFINITIONS.—^As used in this subsection— 
"(A) the term Isroadcast station' has the meaning given 
that term in section 3 of the Communications Act of 1934 
(47 U.S.C. 153); and 
"(B) the term 'cable system' has the meaning given 
that term in section 602 of the Communications Act of 
1934 (47 U.S.C. 522). 
*
*
§ 1203. Civil remedies 
"(a) CIVIL ACTIONS.—^Any person injured by a violation of 
section 1201 or 1202 may bring a civil action in an appropriate 
United States district court for such violation. 
"(b) POWERS OF THE COURT.—In an action brought under 
subsection (a), the court— 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2875 
"(1) may grant temporary and permanent injunctions on 
such terms as it deems reasonable to prevent or restrain a 
violation, but in no event shall impose a prior restraint on 
free speech or the press protected under the 1st amendment 
to the Constitution; 
"(2) at any time while an action is pending, may order 
the impounding, on such terms as it deems reasonable, of 
any device or product that is in the custody or control of 
the alleged violator and that the court has reasonable cause 
to believe was involved in a violation; 
"(3) may award damages under 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 attorney'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). 
"(c) AWARD OF DAMAGES.— 
"(1) IN GENERAL.—^Except as otherwise provided in this 
title, a person committing a violation of section 1201 or 1202 
is liable for either— 
"(A) the actual damages and any additional profits 
of the violator, as provided in paragraph (2), or 
"(B) statutory damages, as 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 act of circumvention, device, product, component, offer, 
or performance of service, as the court considers just. 
"(B) 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 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 proving, and the court 
finds, that a person has violated section 1201 or 1202 within 
3 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 discretion may 
reduce or remit the total award of damages in any case 
in which the violator sustains the burden of proving, and 
112 STAT. 2876 
PUBLIC LAW 105-304—OCT. 28, 1998 
the court finds, that the violator was not aware and had 
no reason to beUeve that its acts constituted a violation. 
"(B) NONPROFIT LIBRARY, ARCHIVES, OR EDUCATIONAL 
INSTITUTIONS.—In the case of a nonprofit library, archives, 
or educational institution, the court shall remit damages 
in any case in which the library, archives, or educational 
institution sustains the burden of proving, and the court 
finds, that the library, archives, or educational institution 
was not aware and had no reason to believe that its acts 
constituted a violation. 
''§ 1204. Criminal offenses and penalties 
"(a) IN GENERAL.—^Any person who violates section 1201 or 
1202 willfully and for purposes of commercial advantage 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, ARCHIVES, OR EDU-
CATIONAL INSTITUTION.—Subsection (a) shall not apply to a non-
profit library, archives, or educational institution. 
"(c) STATUTE OF LIMITATIONS.—^No criminal proceeding shall 
be brought under this section unless such proceeding is commenced 
within 5 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 element of mitigation 
in a criminal prosecution or civil action under, any Federal or 
State law that prevents the violation of the privacy of an individual 
in connection with the individual's use of the Internet.". 
(b) CONFORMING AMENDMENT.—^The table of chapters for title 
17, United States Code, is amended by adding after the item relat-
ing to chapter 11 the following: 
"12. Copyright Protection and Management Systems 
1201". 
17 use 109 note. 
SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMEND-
MENTS ON ELECTRONIC COMMERCE AND TECHNO-
LOGICAL DEVELOPMENT. 
(a) EVALUATION BY THE REGISTER OF COPYRIGHTS AND THE 
ASSISTANT SECRETARY FOR COMMUNICATIONS AND INFORMATION.— 
The Register of Copyrights and the Assistant Secretary for Commu-
nications and Information of the Department of Commerce shall 
jointly evaluate— 
(1) the effects of the amendments made by this title and 
the development of electronic commerce and associated tech-
nology on the operation of sections 109 and 117 of title 17, 
United States Code; and 
(2) the relationship between existing and emergent tech-
nology and the operation of sections 109 and 117 of title 17, 
United States Code. 
Deadline. 
(b) REPORT TO CoNGRESS.^The Register of Copyrights and 
the Assistant Secretary for Communications and Information of 
the Department of Commerce 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 (a). 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2877 
including any legislative recommendations the Register and the 
Assistant Secretary may have. 
SEC. 105. EFFECTIVE DATE. 
(a) IN GENERAL.—^Except as otherwise provided in this title, 
this title and the amendments made by this title shall take effect 
on the date of the enactment of this Act. 
(b) AMENDMENTS RELATING TO CERTAIN INTERNATIONAL AGREE-
MENTS.—(1) The following shall take effect upon the entry into 
force of the WIPO Copyright Treaty with respect to the United 
States: 
(A) Paragraph (5) of the definition of "international agree-
ment" 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)(l) 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 "international agree-
ment" 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. 
(D) Subparagraph (D) of section 104A(h)(l) 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. 
17 u s e 101 note. 
TITLE II—ONLINE COPYRIGHT 
Online Copyright 
INFRINGEMENT LIABILITY LIMITATION SiSr"' 
Limitation Act. 
SEC. 201. SHORT TITLE. 
This title may be cited as the "Online Copyright Infringement 
Liability Limitation Act". 
SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT INFRINGE-
MENT. 
(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 COMMUNICATIONS.—^A serv-
ice provider shall not be liable for monetary relief, or, except as 
provided in subsection (j), for injunctive or other equitable relief. 
17 u s e 101 note. 
112 STAT. 2878 
PUBLIC LAW 105-304—OCT. 28, 1998 
for infringement of copyright by reason of the provider's transmit-
ting, routing, or providing connections for, material through a sys-
tem or network 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 initiated by or 
at the direction of a person other than the service provider; 
"(2) the transmission, routing, provision of connections, 
or storage is carried out through an automatic technical process 
without selection of the material by the service provider; 
"(3) the service provider does not select the recipients of 
the material except as an automatic response to the request 
of another person; 
"(4) no copy of the material made by the service provider 
in the course of such intermediate or transient storage is main-
tained on the system or network in a manner ordinarily acces-
sible 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 the transmission, rout-
ing, or provision of connections; and 
"(5) the material is transmitted through the system or 
network without modification of its content. 
"(b) SYSTEM CACHING.— 
"(1) LIMITATION ON LIABILITY.—A service provider shall 
not be liable for monetary relief, or, except as provided in 
subsection (j), 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 operated 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 net-
work 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 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— 
1 
"(A) the material described in paragraph (1) is 
' 
transmitted to the subsequent users described in paragraph 
(1)(C) without modification 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 making the material available online in accordance 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2879 
with a generally accepted industry standard data commu-
nications protocol for the system or network through which 
that person makes the material available, except that this 
subparagraph applies only if those rules are not used by 
the person described in paragraph (1)(A) to prevent or 
unreasonably impair the intermediate storage to which 
this subsection applies; 
"(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 applies only if that technology— 
"(i) does not significantly 
interfere with the 
performance of the provider's system or network or 
with the intermediate storage of the material; 
"(ii) is consistent with generally accepted industry 
standard communications protocols; and 
"(iii) does not extract information from the provid-
er'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 must meet prior to 
having access to the material, such as a condition based 
on pa5anent 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 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 
responds expeditiously to remove, or disable access to, the 
material that is claimed to be infringing upon notification 
of claimed infringement 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 ordered that the material be removed 
from the originating site or that access to the material 
on the originating site be disabled; and 
"(ii) the party giving the notification includes in 
the notification a statement confirming that the 
material has been removed from the originating site 
or access to it has been disabled or that a court has 
ordered that the material be removed from the origi-
nating site or that access to the material on the origi-
nating site be disabled. 
"(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 (j), 
for injunctive or other equitable relief, for infringement of copy-
right by reason of the storage at the direction of a user of 
112 STAT. 2880 
PUBLIC LAW 105-304—OCT. 28, 1998 
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 mate-
rial or an activity using the material on the system or 
network is infringing; 
"(ii) in the absence of such actual knowledge, is not 
aware of facts or circumstances from which infringing activ-
ity is apparent; or 
"(iii) upon obtaining such knowledge or awareness, acts 
expeditiously to remove, or disable access to, the material; 
"(B) does not receive a financial benefit directly attrib-
utable 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 infringement 
as 
described in paragraph (3), 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) DESIGNATED AGENT.—The limitations on liability estab-
lished in this subsection apply to a service provider only if 
the service provider has designated an agent to receive notifica-
tions of claimed infringement described in paragraph (3), by 
making available through its service, including on its website 
in a location accessible to the public, and by providing to 
the Copyright Office, substantially the following 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. 
Records. 
The Register of Copyrights shall maintain a current directory 
Public 
of agents available to the public for inspection, including 
information. 
through the Internet, in both electronic and hard copy formats, 
and may require payment of a fee by service providers to 
cover the costs of maintaining the directory. 
"(3) ELEMENTS OF NOTIFICATION.— 
"(A) To be effective under this subsection, a notification 
of claimed infringement must be a written communication 
provided to the designated agent of a service provider that 
includes substantially the following: 
"(i) A physical or electronic signature of a person 
authorized to act on behalf of the owner of an exclusive 
right that is allegedly infringed. 
"(ii) Identification of the copyrighted work claimed 
to have been infringed, or, if multiple copyrighted 
works at a single online site are covered by a single 
notification, 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 activ-
ity 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 avail-
able, an electronic mail address at which the complain-
ing party may be contacted. 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2881 
"(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 copy-
right owner, its agent, or the law. 
"(vi) A statement that the information in the 
notification is accurate, and under penalty of perjury, 
that the complaining party is authorized to act on 
behalf of the owner of an exclusive right that is alleg-
edly infringed. 
"(B)(i) Subject to clause (ii), a notification fi'om a copy-
right owner or from a person authorized to act on behalf 
of the copyright owner that fails to comply substantially 
with the provisions of subparagraph (A) shall not be consid-
ered under paragraph (1)(A) in determining whether a 
service provider has actual knowledge or is aware of facts 
or circumstances from which infringing activity is apparent. 
"(ii) In a case in which the notification that is provided 
to the service provider's designated agent fails to comply 
substantially with all the provisions of subparagraph (A) 
but substantially complies with clauses (ii), (iii), and (iv) 
of subparagraph (A), clause (i) of this subparagraph applies 
only if the service provider promptly attempts to contact 
the person making the notification or takes other reason-
able steps to assist in the receipt of notification that 
substantially complies with all the provisions of subpara-
graph (A). 
"(d) INFORMATION LOCATION TOOLS.—A service provider shall 
not be liable for monetary relief, or, except as provided in subsection 
(j), for injunctive or other equitable relief, for infringement of copy-
right 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 awareness, 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 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)(3), responds expeditiously 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 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 
that reference or link. 
"(e) 
LIMITATION ON LIABILITY OF NONPROFIT EDUCATIONAL 
INSTITUTIONS.—(1) When a public or other nonprofit institution 
of higher education is a service provider, and when a faculty mem-
ber or graduate student who is an employee of such institution 
112 STAT. 2882 
PUBLIC LAW 105-304—OCT. 28, 1998 
is performing a teaching or research function, for the purposes 
of subsections (a) and (b) such faculty member or graduate student 
shall be considered to be a person other than the institution, and 
for the purposes of subsections (c) and (d) such faculty member's 
or graduate student's knowledge or awareness of his or her infring-
ing activities shall not be attributed to the institution, if— 
"(A) such faculty member's or graduate student's infringing 
activities do not involve the provision of online access to instruc-
tional materials that are or were required or recommended, 
within the preceding 3-year period, for a course taught at 
the institution by such faculty member or graduate student; 
"(B) the institution has not, within the preceding 3-year 
period, received more than two notifications described in sub-
section (c)(3) of claimed infringement by such faculty member 
or graduate student, and such notifications of claimed infringe-
ment were not actionable under subsection (f); and 
"(C) the institution provides to all users of its system 
or network informational materials that accurately describe, 
and promote compliance with, the laws of the United States 
relating to copyright. 
Applicability. 
"(2) INJUNCTIONS.—^For the purposes of this subsection, the 
limitations on injunctive relief contained in subsections (j)(2) and 
(j)(3), but not those in (j)(l), shall apply. 
"(f) MISREPRESENTATIONS.—^Any person who knowingly materi-
ally 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 attorneys' 
fees, incurred by the alleged infringer, by any copyright owner 
or copyright owner's authorized licensee, or by a service provider, 
who is injured by such misrepresentation, as the result of the 
service provider relying upon such misrepresentation in removing 
or disabling access to the material or activity claimed to be infring-
ing, or in replacing the removed material or ceasing to disable 
access to it. 
"(g) REPLACEMENT OF REMOVED OR DISABLED MATERIAL AND 
LIMITATION ON OTHER LIABILITY.— 
"(1) No LIABILITY FOR TAKING DOWN GENERALLY.—Subject 
to paragraph (2), 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 activity claimed 
to be infringing or based on facts or circumstances from which 
infringing activity is apparent, regardless of whether the mate-
rial or activity is ultimately determined to be infringing. 
"(2) EXCEPTION.—Paragraph (1) shall not apply with 
respect to material residing at the direction of a subscriber 
of the service provider on a system or network controlled or 
operated by or for the service provider that is removed, or 
to which access is disabled by the service provider, pursuant 
to a notice provided under subsection (c)(1)(C), unless the serv-
ice provider— 
"(A) takes reasonable steps promptly to notify the 
subscriber that it has removed or disabled access to the 
material; 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2883 
"(B) upon receipt of a counter notification described 
in paragraph (3), promptly provides the person who pro-
vided 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 dis-
abling access to it not less than 10, nor more than 14, 
business days following receipt of the counter notice, unless 
its designated agent first receives notice from the person 
who submitted the 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 activ-
ity 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 notification must be a written 
communication provided to the service provider's designated 
agent that includes substantially the following: 
"(A) A physical or electronic signature of the subscriber. 
"(B) Identification of the material that has been 
removed or to which access has been disabled and the 
location at which the material appeared 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 
result 
of 
mistake 
or 
misidentification of the material 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 Federal District Court for the judicial 
district in which the address is located, or if the subscriber's 
address is outside of the United States, for any judicial 
district in which the service provider may be found, and 
that the subscriber will accept service of process from the 
person who provided 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 identified in the notice provided under sub-
section (c)(1)(C). 
"(h) 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 subsection. 
"(2) CONTENTS OF REQUEST.—^The request may be made 
by filing with the clerk— 
"(A) a copy of a notification described in subsection 
(c)(3)(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 
112 STAT. 2884 
PUBLIC LAW 105-304—OCT. 28, 1998 
be used for the purpose of protecting rights under this 
title. 
"(3) CONTENTS OF SUBPOENA.—^The subpoena shall author-
ize and order the service provider receiving the notification 
and the subpoena to expeditiously disclose to the copyright 
owner or person authorized by the copyright owner information 
sufficient to identify the alleged infringer of the material 
described in the notification to the extent such information 
is available to the service provider. 
"(4) BASIS FOR GRANTING SUBPOENA.—If the notification 
filed satisfies the provisions of subsection (c)(3)(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 RECEIVING SUBPOENA.— 
Upon receipt of the issued subpoena, either accompanjdng or 
subsequent to the receipt of a notification described in sub-
section (c)(3)(A), the service provider shall expeditiously disclose 
to the copyright owner or person authorized by the copyright 
owner the information required by the subpoena, notwithstand-
ing any other provision of law and regardless of whether the 
service provider responds to the notification. 
"(6) 
RULES APPLICABLE TO SUBPOENA.—Unless otherwise 
provided by this section or by applicable rules of the court, 
the procedure for issuance and delivery of the subpoena, and 
the remedies for noncompliance with the subpoena, shall be 
governed to the greatest extent practicable by those provisions 
of the Federal Rules of Civil Procedure governing the issuance, 
service, and enforcement of a subpoena duces tecum. 
"(i) CONDITIONS FOR ELIGIBILITY.— 
"(1) ACCOMMODATION OF TECHNOLOGY.—The limitations on 
liability established by this section shall apply to a service 
provider only if the service provider— 
"(A) has adopted and reasonably implemented, and 
informs subscribers and account holders of the service 
provider's system or network of, a policy that provides 
for the termination in appropriate circumstances of 
subscribers and account holders of the service provider's 
system or network who are repeat infringers; and 
"(B) accommodates and does not interfere with stand-
ard technical measures. 
"(2) DEFINITION.—^As used in this subsection, the term 
'standard technical measures' means technical measures that 
are used by copyright owners to identify or protect copyrighted 
works and— 
"(A) have been developed pursuant to a broad consen-
sus of copyright owners and service providers in an open, 
fair, voluntary, multi-industry standards process; 
"(B) are available to any person on reasonable and 
nondiscriminatory terms; and 
"(C) do not impose substantial costs on service provid-
ers or substantial burdens on their systems or networks. 
Applicability. 
"(j) 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 monetary remedies under 
this section: 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2885 
"(1) SCOPE OF RELIEF.—(A) With respect to conduct other 
than that which quaUfies for the Hmitation on remedies set 
forth in subsection (a), the court may grant injunctive reUef 
with respect to a service provider only in one or more of 
the following forms: 
"(i) An order restraining the service provider from 
providing access to infringing material or activity residing 
at a particular online site on the provider's system or 
network. 
"(ii) An order restraining the service provider from 
providing access to a subscriber or account holder of the 
service provider's system or network who is engaging in 
infringing activity and is identified in the order, by termi-
nating the accounts of the subscriber or account holder 
that are specified in the order. 
"(iii) Such other injunctive relief as the court may 
consider necessary to prevent or restrain infringement of 
copyrighted material specified in the order of the court 
at a particular online location, if such relief is the least 
burdensome to the service provider among the forms of 
relief comparably effective for that purpose. 
"(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 the service provider from 
providing access to a subscriber or account holder of the 
service provider's system or network who is using the 
provider's service to engage in infringing activity and is 
identified in the order, by terminating the accounts of 
the subscriber or account holder that are specified in the 
order. 
"(ii) An order restraining the service provider from 
providing access, by taking reasonable steps specified in 
the order to block access, to a specific, identified, online 
location outside the United States. 
"(2) CONSIDERATIONS.—^The court, in considering the rel- Courts, 
evant criteria for injunctive relief under applicable law, shall 
consider— 
"(A) whether such an injunction, either alone or in 
combination with other such injunctions issued against 
the same service provider under this subsection, would 
significantly burden either the provider or the operation 
of the provider'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 infringe-
ment; 
"(C) whether implementation of such an injunction 
would be technically feasible and effective, and would not 
interfere with access to noninfringing material at other 
online locations; and 
"(D) whether other less burdensome and comparably 
effective means of preventing or restraining access to the 
infringing material are available. 
"(3) 
NOTICE AND EX PARTE ORDERS.—Injunctive relief 
under this subsection shall be available only after notice to 
the service provider and an opportunity for the service provider 
112 STAT. 2886 
PUBLIC LAW 105-304—OCT. 28, 1998 
to appear are provided, except for orders ensuring the preserva-
tion of evidence or other orders having no material adverse 
effect on the operation of the service provider's communications 
network. 
"(k) DEFINITIONS.— 
"(1) SERVICE PROVIDER.—(A) As used in subsection (a), the 
term 'service provider' means an entity offering the trans-
mission, routing, or providing of connections for digital online 
communications, between or among points specified by a user, 
of material of the user's choosing, without modification to the 
content of the material as sent or received. 
"(B) As used in this section, other than subsection (a), 
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 subparagraph (A). 
"(2) MONETARY RELIEF.—^As used in this sect-ion, the term 
'monetary relief means damages, costs, attorneys' fees, and 
any other form of monetary payment. 
"(1) 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. 
"(m) PROTECTION OF PRIVACY.—^Nothing in this section shall 
be construed to condition the applicability of subsections (a) through 
(d) on— 
"(1) a service provider monitoring its service or affirma-
tively seeking facts indicating infringing activity, except to 
the extent consistent with a standard technical measure 
complying with the provisions of subsection (i); or 
"(2) a service provider gaining access to, removing, or dis-
abling access to material in cases in which such conduct is 
prohibited by law. 
"(n) CONSTRUCTION.—Subsections (a), (b), (c), and (d) describe 
separate and distinct functions for purposes of appljdng this section. 
Whether a service provider qualifies for the limitation on liability 
in any one of those subsections shall be based solely on the criteria 
in that subsection, and shall not affect a determination of whether 
that service provider qualifies for the limitations on liability under 
any other such subsection.". 
(b) CONFORMING AMENDMENT.—^The table of sections for chapter 
5 of title 17, United States Code, is amended by adding at the 
end the following: 
"512. Limitations on liability relating to material online.". 
17 u s e 512 note. 
SEC. 203. 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 COPYRIGHT EXEMPTION 
Computer 
Maintenance 
Competition 
Assurance Act. 
17 u s e 101 note. 
SEC. 301. SHORT TITLE. 
This title may be cited as the "Computer Maintenance Competi-
tion Assurance Act". 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2887 
SEC. 302. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER PRO-
GRAMS. 
Section 117 of title 17, United States Code, is amended— 
(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 ADDITIONAL COPY 
OR ADAPTATION.—^Any exact"; and 
(3) by adding at the end the following: 
"(c) MACHINE MAINTENANCE OR REPAIR.—Notwithstanding the 
provisions of section 106, it is not an infringement for the owner 
or lessee of a machine to make or authorize the making of a 
copy of a computer program if such copy is made solely by virtue 
of the activation of a machine that lawfully contains an authorized 
copy of the computer program, for purposes only of maintenance 
or repair of that machine, if— 
"(1) such new copy is used in no other manner and is 
destroyed immediately after the maintenance or repair is com-
pleted; 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 servicing of 
the machine in order to make it work in accordance with 
its original specifications and any changes to those specifica-
tions authorized for that machine; and 
"(2) the 'repair' of a machine is the restoring of the machine 
to the state of working in accordance with its original specifica-
tions and any changes to those specifications authorized for 
that machine.". 
TITLE IV—MISCELLANEOUS 
PROVISIONS 
SEC. 401. PROVISIONS RELATING TO THE COMMISSIONER OF PATENTS 
AND TRADEMARKS AND THE REGISTER OF COPYRIGHTS 
(a) COMPENSATION.—(1) Section 3(d) of title 35, United States 
Code, is amended by striking "prescribed by law for Assistant 
Secretaries of Commerce" and inserting "in effect for level III of 
the Executive Schedule under section 5314 of title 5, United States 
Code". 
(2) Section 701(e) of title 17, United States Code, is amended— 
(A) by striking "IV" and inserting "III"; and 
(B) by striking "5315" and inserting "5314". 
(3) Section 5314 of title 5, United States Code, is amended 
by adding at the end the following: 
"Assistant Secretary of Commerce and Commissioner of 
Patents and Trademarks. 
"Register of Copyrights.". 
(b) CLARIFICATION OF AUTHORITY OF THE COPYRIGHT OFFICE.— 
Section 701 of title 17, United States Code, is amended— 
59-194 O - 98 - 5 : QL 3 Part 5 
112 STAT. 2888 
PUBLIC LAW 105-304—OCT. 28, 1998 
, 
(1) by redesignating subsections (b) through (e) as sub-
sections (c) through (f), respectively; and 
(2) by inserting after subsection (a) the following: 
"(b) In addition to the functions and duties set out elsewhere 
in this chapter, the Register of Copyrights shall perform the follow-
ing functions: 
"(1) Advise Congress on national and international issues 
relating to copyright, other matters arising under this title, 
and related matters. 
"(2) Provide information and assistance to Federal depart-
ments and agencies and the Judiciary on national and inter-
national issues relating to copyright, other matters arising 
under this title, and related matters. 
"(3) Participate in meetings of international intergovern-
mental organizations and meetings with foreign government 
officials relating to copyright, other matters arising under this 
title, and related matters, including as a member of United 
States delegations as authorized by the appropriate Executive 
branch authority. 
"(4) Conduct studies and programs regarding copyright, 
other matters arising under this title, and related matters, 
the administration of the Copyright Office, or any function 
vested in the Copyright Office by law, including educational 
programs conducted cooperatively with foreign intellectual 
property offices and international intergovernmental organiza-
tions. 
"(5) Perform such other functions as Congress may direct, 
or as may be appropriate in furtherance of the functions and 
duties specifically set forth in this title.". 
SEC. 402. EPHEMERAL RECORDINGS. 
Section 112(a) of title 17, United States Code, is amended— 
(1) by redesignating paragraphs (1), (2), and (3) as subpara-
graphs (A), (B), and (C), respectively; 
(2) by inserting «(1)" after "(a)"; 
(3) by inserting after "under a license" the following: 
", including a statutory license under section 114(f),"; 
(4) by inserting after "114(a)," the following: "or for a 
transmitting organization that is a broadcast radio or television 
station licensed as such by the Federal Communications 
Commission and that makes a broadcast transmission of a 
performance of a sound recording in a digital format on a 
nonsubscription basis,"; and 
(5) by adding at the end the following: 
"(2) In a case in which a transmitting organization entitled 
to make a copy or phonorecord under paragraph (1) in connection 
with the transmission to the public of a performance or display 
of a work is prevented from making such copy or phonorecord 
by reason of the application by the copyright owner of technical 
measures that prevent the reproduction of the work, the copyright 
owner shall make available to the transmitting organization the 
necessary means for permitting the making of such copy or phono-
record as permitted under that paragraph, if it is technologically 
feasible and economically reasonable for the copyright owner to 
do so. If the copyright owner fails to do so in a timely manner 
in light of the transmitting organization's reasonable business 
requirements, the transmitting organization shall not be liable for 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2889 
a violation of section 1201(a)(1) of this title for engaging in such 
activities as are necessary to make such copies or phonorecords 
as permitted under paragraph (1) of this subsection.". 
SEC. 403. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE EDUCATION. 
(a) RECOMMENDATIONS BY REGISTER OF COPYRIGHTS.—^Not later Deadline, 
than 6 months after the date of the enactment of this Act, the 
Register of Copyrights, after consultation with representatives of 
copyright owners, nonprofit educational institutions, and nonprofit 
libraries and archives, shall submit to the Congress recommenda-
tions on how to promote distance education through digital tech-
nologies, including interactive digital networks, while maintaining 
an appropriate balance between the rights of copyright owners 
and the needs of users of copyrighted works. Such recommendations 
shall include any legislation the Register of Copyrights considers 
appropriate to achieve the objective described in the preceding 
sentence. 
(b) FACTORS.—In formulating recommendations under sub-
section (a), the Register of Copyrights shall consider— 
(1) the need for an exemption from exclusive rights of 
copyright owners for distance education through digital net-
works; 
(2) the categories of works to be included under any 
distance education exemption; 
(3) the extent of appropriate quantitative limitations on 
the portions of works that may be used under any distance 
education exemption; 
(4) the parties who should be entitled to the benefits of 
any distance education exemption; 
(5) the parties who should be designated as eligible 
recipients of distance education materials under any distance 
education exemption; 
(6) whether and what types of technological measures can 
or should be employed to safeguard against unauthorized access 
to, and use or retention of, copyrighted materials as a condition 
of eligibility for any distance education exemption, including, 
in light of developing technological capabilities, the exemption 
set out in section 110(2) of title 17, United States Code; 
(7) the extent to which the availability of licenses for the 
use of copyrighted works in distance education through inter-
active digital networks should be considered in assessing eligi-
bility for any distance education exemption; and 
(8) such other issues relating to distance education through 
interactive digital networks that the Register considers appro-
priate. 
SEC. 404. EXEMPTION FOR LIBRARIES AND ARCHIVES. 
Section 108 of title 17, United States Code, is amended— 
(1) in subsection (a)— 
(A) by striking 
"Notwithstanding" 
and 
inserting 
"Except as otherwise provided in this title and notwith-
standing"; 
(B) by inserting after "no more than one copy or phono-
record of a work" the following: ", except as provided in 
subsections (b) and (c)"; and 
(C) in paragraph (3) by inserting after "copyright" the 
following: "that appears on the copy or phonorecord that 
is reproduced under the provisions of this section, or 
112 STAT. 2890 
PUBLIC LAW 105-304—OCT. 28, 1998 
includes a legend stating that the work may be protected 
by copyright if no such notice can be found on the copy 
or phonorecord that is reproduced under the provisions 
of this section"; 
(2) in subsection (b)— 
(A) by striking "a copy or phonorecord" and inserting 
"three copies or phonorecords"; 
(B) by striking "in facsimile form"; and 
(C) by striking "if the copy or phonorecord reproduced 
is currently in the collections of the library or archives." 
and inserting "if— 
"(1) the copy or phonorecord reproduced is currently in 
the collections of the library or archives; and 
"(2) any such copy or phonorecord that is reproduced in 
digital format is not otherwise distributed in that format and 
is not made available to the public in that format outside 
the premises of the library or archives."; and 
(3) in subsection (c)— 
(A) by striking "a copy or phonorecord" and inserting 
"three copies or phonorecords"; 
(B) by striking "in facsimile form"; 
(C) by inserting "or if the existing format in which 
the work is stored has become obsolete," after "stolen,"; 
(D) by striking "if the library or archives has, after 
a reasonable effort, determined that an unused replacement 
cannot be obtained at a fair price." and inserting "if— 
"(1) the library or archives has, after a reasonable effort, 
determined that an unused replacement cannot be obtained 
at a fair price; and 
"(2) any such copy or phonorecord that is reproduced in 
digital format is not made available to the public in that format 
outside the premises of the library or archives in lawful posses-
sion of such copy."; and 
(E) by adding at the end the following: 
"For purposes of this subsection, a format shall be considered obso-
lete if the machine or device necessary to render perceptible a 
work stored in that format is no longer manufactured or is no 
longer reasonably available in the commercial marketplace.". 
SEC. 405. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS; 
EPHEMERAL RECORDINGS. 
(a) SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS.—Sec-
tion 114 of title 17, United States Code, is amended as follows: 
(1) Subsection (d) is amended— 
(A) in paragraph (1) by striking subparagraph (A) and 
inserting the following: 
"(A) a nonsubscription broadcast transmission;"; and 
(B) by amending paragraph (2) to read as follows: 
"(2) STATUTORY LICENSING OF CERTAIN TRANSMISSIONS.— 
The performance of a sound recording publicly by means of 
a subscription digital audio transmission not exempt under 
paragraph (1), an eligible nonsubscription transmission, or a 
transmission not exempt under paragraph (1) that is made 
by a preexisting satellite digital audio radio service shall be 
subject to statutory licensing, in accordance with subsection 
(f)if— 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2891 
"(A)(i) the transmission is not part of an interactive 
service; 
"(ii) except in the case of a transmission to a business 
establishment, the transmitting entity does not automati-
cally and intentionally cause any device receiving the trans-
mission to switch from one program channel to another; 
and 
"(iii) except as provided in section 1002(e), the trans-
mission of the sound recording is accompanied, if tech-
nically feasible, by the information encoded in that sound 
recording, if any, by or under the authority of the copyright 
owner of that sound recording, that identifies the title 
of the sound recording, the featured recording artist who 
performs on the sound recording, and related information, 
including information concerning the underlying musical 
work and its writer; 
"(B) in the case of a subscription transmission not 
exempt under paragraph (1) that is made by a preexisting 
subscription service in the same transmission medium used 
by such service on July 31, 1998, or in the case of a 
transmission not exempt under paragraph (1) that is made 
by a preexisting satellite digital audio radio service— 
"(i) the transmission does not exceed the sound 
recording performance complement; and 
"(ii) the transmitting entity does not cause to be 
published by means of an advance program schedule 
or prior announcement the titles of the specific sound 
recordings or phonorecords embodying such sound 
recordings to be transmitted; and 
"(C) in the case of an eligible nonsubscription trans-
mission or a subscription transmission not exempt under 
paragraph (1) that is made by a new subscription service 
or by a preexisting subscription service other than in the 
same transmission medium used by such service on July 
31, 1998— 
"(i) the transmission does not exceed the sound 
recording performance complement, except that this 
requirement shall not apply in the case of a retrans-
mission of a broadcast transmission if the retrans-
mission is made by a transmitting entity that does 
not have the right or ability to control the programming 
of the broadcast station making the broadcast trans-
mission, unless— 
"(I) the broadcast station makes broadcast 
transmissions— 
"(aa) in digital format that 
regularly 
exceed the sound recording performance com-
plement; or 
"(bb) in analog format, a substantial por-
tion of which, on a weekly basis, exceed the 
sound recording performance complement; and 
"(II) the sound recording copyright owner or 
its representative has notified the transmitting 
entity in writing that broadcast transmissions of 
the copyright owner's sound recordings exceed the 
sound recording performance complement as pro-
vided in this clause; 
112 STAT. 2892 
PUBLIC LAW 105-304—OCT. 28, 1998 
"(ii) the transmitting entity does not cause to be 
published, or induce or facilitate the publication, by 
means of an advance program schedule or prior 
announcement, the titles of the specific sound record-
ings to be transmitted, the phonorecords embodying 
such sound recordings, or, other than for illustrative 
purposes, the names of the featured recording artists, 
except that this clause does not disqualify a transmit-
ting entity that makes a prior announcement that a 
particular artist will be featured within an unspecified 
future time period, and in the case of a retransmission 
of a broadcast transmission by a transmitting entity 
that does not have the right or ability to control the 
programming of the broadcast transmission, 
the 
requirement of this clause shall not apply to a prior 
oral announcement by the broadcast station, or to an 
advance program schedule published, induced, or facili-
tated by the broadcast station, if the transmitting 
entity does not have actual knowledge and has not 
received written notice from the copyright owner or 
its representative that the broadcast station publishes 
or induces or facilitates the publication of such advance 
program schedule, or if such advance program schedule 
is a schedule of classical music programming published 
by the broadcast station in the same manner as pub-
lished by that broadcast station on or before September 
30,1998; 
"(iii) the transmission— 
"(I) is not part of an archived program of less 
than 5 hours duration; 
"(II) is not part of an archived program of 
5 hours or greater in duration that is made avail-
• able for a period exceeding 2 weeks; 
"(III) is not part of a continuous program 
which is of less than 3 hours duration; or 
"(IV) is not part of an identifiable program 
in which performances of sound recordings are 
rendered in a predetermined order, other than an 
archived or continuous program, that is transmit-
ted at— 
"(aa) more than 3 times in any 2-week 
period that have been publicly announced in 
advance, in the case of a program of less than 
1 hour in duration, or 
"(bb) more than 4 times in any 2-week 
period that have been publicly announced in 
advance, in the case of a program of 1 hour 
or more in duration, 
except that the requirement of this subclause shall 
not apply in the case of a retransmission of a 
broadcast transmission by a transmitting entity 
that does not have the right or ability to control 
the programming of the broadcast transmission, 
unless the transmitting entity is given notice in 
writing by the copyright owner of the sound record-
ing that the broadcast station makes broadcast 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2893 
transmissions that regularly violate such require-
ment; 
"(iv) the transmitting entity does not knowingly 
perform the sound recording, as part of a service that 
offers transmissions of visual images contempora-
neously with transmissions of sound recordings, in a 
manner that is likely to cause confusion, to cause mis-
take, or to deceive, as to the affiliation, connection, 
or association of the copyright owner or featured 
recording artist with the transmitting entity or a 
particular 
product or service advertised 
by 
the 
transmitting entity, or as to the origin, sponsorship, 
or approval by the copyright owner or featured record-
ing artist of the activities of the transmitting entity 
other than the performance of the sound recording 
itself; 
"(v) the transmitting entity cooperates to prevent, 
to the extent feasible without imposing substantial 
costs or burdens, a transmission recipient or any other 
person or entity from automatically scanning the 
transmitting entity's transmissions alone or together 
with transmissions by other transmitting entities in 
order to select a particular sound recording to be 
transmitted to the transmission recipient, except that 
the requirement of this clause shall not apply to a 
satellite digital audio service that is in operation, or 
that is licensed by the Federal 
Communications 
Commission, on or before July 31, 1998; 
"(vi) the transmitting entity takes no affirmative 
steps to cause or induce the making of a phonorecord 
by the transmission recipient, and if the technology 
used by the transmitting entity enables the transmit-
ting entity to limit the making by the transmission 
recipient of phonorecords of the transmission directly 
in a digital format, the transmitting entity sets such 
technology to limit such making of phonorecords to 
the extent permitted by such technology; 
"(vii) phonorecords of the sound recording have 
been distributed to the public under the authority of 
the copyright owner or the cop5n*ight owner authorizes 
the transmitting entity to transmit the sound record-
ing, and the transmitting entity makes the trans-
mission from a phonorecord lawfully made under the 
authority of the copyright owner, except that the 
requirement of this clause shall not apply to a retrans-
mission of a broadcast transmission by a transmitting 
entity that does not have the right or ability to control 
the programming of the broadcast transmission, unless 
the transmitting entity is given notice in writing by 
the copyright owner of the sound recording that the 
broadcast station makes broadcast transmissions that 
regularly violate such requirement; 
"(viii) the transmitting entity accommodates and 
does not interfere with the transmission of technical 
measures that are widely used by sound recording 
copyright owners to identify or protect copyrighted 
works, and that are technically feasible of being 
^tss^ 
112 STAT. 2894 
PUBLIC LAW 105-304—OCT. 28, 1998 
Federal Register, 
publication. 
transmitted by the transmitting entity without impos-
ing substantial costs on the transmitting entity or 
resulting in perceptible aural or visual degradation 
of the digital signal, except that the requirement of 
this clause shall not apply to a satellite digital audio 
service that is in operation, or that is licensed under 
the authority of the Federal Communications Commis-
sion, on or before July 31, 1998, to the extent that 
such service has designed, developed, or made commit-
ments to procure equipment or technology that is not 
compatible with such technical measures before such 
technical measures are widely adopted by sound record-
ing copyright owners; and 
"(ix) the transmitting entity identifies in textual 
data the sound recording during, but not before, the 
time it is performed, including the title of the sound 
recording, the title of the phonorecord embodying such 
sound recording, if any, and the featured recording 
artist, in a manner to permit it to be displayed to 
the transmission recipient by the device or technology 
intended for receiving the service provided by the 
transmitting entity, except that the obligation in this 
clause shall not take effect until 1 year after the date 
of the enactment of the Digital Millennium Copyright 
Act and shall not apply in the case of a retransmission 
of a broadcast transmission by a transmitting entity 
that does not have the right or ability to control the 
programming of the broadcast transmission, or in the 
case in which devices or technology intended for receiv-
ing the service provided by the transmitting entity 
that have the capability to display such textual data 
are not common in the marketplace.". 
(2) Subsection (f) is amended— 
(A) in the subsection heading by striking "NONEXEMPT 
SUBSCRIPTION" and inserting "CERTAIN NONEXEMPT"; 
(B) in paragraph (1)— 
(i) in the first sentence— 
(I) by striking "(1) No" and inserting "(1)(A) 
No"; 
(II) by striking "the activities" and inserting 
"subscription 
• transmissions 
by 
preexisting 
subscription 
services 
and 
transmissions 
by 
preexisting satellite digital audio radio services"; 
and 
(III) by striking "2000" and inserting "2001"; 
and 
(ii) by amending the third sentence to read as 
follows: "Any copyright owners of sound recordings, 
preexisting subscription services, or preexisting sat-
ellite digital audio radio services may submit to the 
Librarian of Congress licenses covering such subscrip-
tion transmissions with respect to such sound record-
ings."; and 
(C) by striking paragraphs (2), (3), (4), and (5) and 
inserting the following: 
"(B) In the absence of license agreements negotiated under 
subparagraph (A), during the 60-day period commencing 6 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2895 
months after publication of the notice specified in subparagraph 
(A), and upon the filing of a petition in accordance with section 
803(a)(1), the Librarian of Congress shall, pursuant to chapter 
8, convene a copyright arbitration royalty panel to determine 
and publish in the Federal Register a schedule of rates and 
terms which, subject to paragraph (3), shall be binding on 
all copyright owners of sound recordings and entities perform-
ing sound recordings affected by this paragraph. In establishing 
rates and terms for preexisting subscription services and 
preexisting satellite digital audio radio services, in addition 
to the objectives set forth in section 801(b)(1), the copyright 
arbitration royalty panel may consider the rates and terms 
for comparable types of subscription digital audio transmission 
services and comparable circumstances under voluntary license 
agreements negotiated as provided in subparagraph (A). 
"(C)(i) Publication of a notice of the initiation of voluntary Regulations. 
negotiation proceedings as specified in subparagraph (A) shall 
be repeated, in accordance with regulations that the Librarian 
of Congress shall prescribe— 
"(I) no later than 30 days after a petition is filed 
by any copyright owners of sound recordings, any preexist-
ing subscription services, or any preexisting satellite digital 
audio radio services indicating that a new type of subscrip-
tion digital audio transmission service on which sound 
recordings are performed is or is about to become oper-
ational; and 
"(11) in the first week of January 2001, and at 5-
year intervals thereafter. 
"(ii) The procedures specified in subparagraph (B) shall 
be repeated, in accordance with regulations that the Librarian 
of Congress shall prescribe, upon filing of a petition in accord-
ance with section 803(a)(1) during a 60-day period commenc-
ing— 
"(I) 6 months after publication of a notice of the initi-
ation of voluntary negotiation proceedings under subpara-
graph (A) pursuant to a petition under clause (i)(I) of 
this subparagraph; or 
"(II) on July 1, 2001, and at 5-year intervals thereafter, 
"(iii) The procedures specified in subparagraph (B) shall 
be concluded in accordance with section 802. 
"(2)(A) No later than 30 days after the date of the enact-
ment of the Digital Millennium Copyright Act, the Librarian 
of Congress shall cause notice to be published in the Federal 
Register of the initiation of voluntary negotiation proceedings 
for the purpose of determining reasonable terms and rates 
of royalty payments for public performances of sound recordings 
by means of eligible nonsubscription transmissions and trans-
missions by new subscription services specified by subsection 
(d)(2) during the period beginning on the date of the enactment 
of such Act and ending on December 31, 2000, or such other 
date as the parties may agree. Such rates and terms shall 
distinguish among the different types of eligible nonsubscription 
transmission services and new subscription services then in 
operation and shall include a minimum fee for each such type 
of service. Any copyright owners of sound recordings or any 
entities performing sound recordings affected by this paragraph 
may submit to the Librarian of Congress licenses covering 
Deadline. 
Federal Register, 
publication. 
Notice. 
112 STAT. 2896 
PUBLIC LAW 105-304—OCT. 28, 1998 
Federal Register, 
publication. 
Regulations. 
such eligible nonsubscription transmissions and new subscrip-
tion services with respect to such sound recordings. The parties 
to each negotiation proceeding shall bear their own costs. 
"(B) In the absence of license agreements negotiated under 
subparagraph (A), during the 60-day period commencing 6 
months after publication of the notice specified in subparagraph 
(A), and upon the filing of a petition in accordance with section 
803(a)(1), the Librarian of Congress shall, pursuant to chapter 
8, convene a copyright arbitration royalty panel to determine 
and publish in the Federal Register a schedule of rates and 
terms which, subject to paragraph (3), shall be binding on 
all copyright owners of sound recordings and entities perform-
ing sound recordings affected by this paragraph during the 
period beginning on the date of the enactment of the Digital 
Millennium Copyright Act and ending on December 31, 2000, 
or such other date as the parties may agree. Such rates and 
terms shall distinguish among the different types of eligible 
nonsubscription transmission services then in operation and 
shall include a minimum fee for each such type of service, 
such differences to be based on criteria including, but not 
limited to, the quantity and nature of the use of sound record-
ings and the degree to which use of the service may substitute 
for or may promote the purchase of phonorecords by consumers. 
In establishing rates and terms for transmissions by eligible 
nonsubscription services and new subscription services, the 
copyright arbitration royalty panel shall establish rates and 
terms that most clearly represent the rates and terms that 
would have been negotiated in the marketplace between a 
willing buyer and a willing seller. In determining such rates 
and terms, the copyright arbitration royalty panel shall base 
its decision on economic, competitive and programming informa-
tion presented by the parties, including— 
"(i) whether use of the service may substitute for or 
may promote the sales of phonorecords or otherwise may 
interfere with or may enhance the sound recording copy-
right owner's other streams of revenue from its sound 
recordings; and 
"(ii) the relative roles of the copyright owner and the 
transmitting entity in the copyrighted work and the service 
made available to the public with respect to relative cre-
ative 
contribution, 
technological 
contribution, 
capital 
investment, cost, and risk. 
In establishing such rates and terms, the copyright arbitration 
royalty panel may consider the rates and terms for comparable 
types of digital audio transmission services and comparable 
circumstances under voluntary license agreements negotiated 
under subparagraph (A). 
"(C)(i) Publication of a notice of the initiation of voluntary 
negotiation proceedings as specified in subparagraph (A) shall 
be repeated in accordance with regulations that the Librarian 
of Congress shall prescribe— 
"(I) no later than 30 days after a petition is filed 
by any copyright owners of sound recordings or any eligible 
nonsubscription service or new subscription service indicat-
ing that a new type of eligible nonsubscription service 
or new subscription service on which sound recordings are 
performed is or is about to become operational; and 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2897 
"(II) in the first week of January 2000, and at 2-
year intervals thereafter, except to the extent that different 
years for the repeating of such proceedings may be deter-
mined in accordance with subparagraph (A), 
"(ii) The procedures specified in subparagraph (B) shall 
be repeated, in accordance with regulations that the Librarian 
of Congress shall prescribe, upon filing of a petition in 
accordance with section 803(a)(1) during a 60-day period 
commencing— 
"(I) 6 months after publication of a notice of the 
initiation of voluntary negotiation proceedings 
under 
subparagraph (A) pursuant to a petition under clause (i)(I); 
or 
"(II) on July 1, 2000, and at 2-year intervals thereafter, 
except to the extent that different years for the repeating 
of such proceedings may be determined in accordance with 
subparagraph (A). 
"(iii) The procedures specified in subparagraph (B) shall 
be concluded in accordance with section 802. 
"(3) License agreements voluntarily negotiated at any time 
between 1 or more copyright owners of sound recordings and 
1 or more entities performing sound recordings shall be given 
effect in lieu of any determination by a copyright arbitration 
royalty panel or decision by the Librarian of Congress. 
"(4)(A) The Librarian of Congress shall also establish 
requirements by which copyright owners may receive reason-
able notice of the use of their sound recordings under this 
section, and under which records of such use shall be kept 
and made available by entities performing sound recordings. 
"(B) Any person who wishes to perform a sound recording 
publicly by means of a transmission eligible for statutory licens-
ing under this subsection may do so without infringing the 
exclusive right of the copyright owner of the sound recording— 
"(i) by complying with such notice requirements as Regulations, 
the Librarian of Congress shall prescribe by regulation 
and by paying royalty fees in accordance with this sub-
section; or 
"(ii) if such royalty fees have not been set, by agreeing 
to pay such royalty fees as shall be determined in accord-
ance with this subsection. 
"(C) Any royalty payments in arrears shall be made on 
or before the twentieth day of the month next succeeding the 
month in which the royalty fees are set.". 
(3) Subsection (g) is amended— 
(A) in the subsection heading by striking 
"SUB-
SCRIPTION"; 
(B) in paragraph (1) in the matter preceding subpara-
graph (A), by striking "subscription transmission licensed" 
and inserting "transmission licensed under a statutory 
license"; 
(C) in subparagraphs (A) and (B) by striking "subscrip-
tion"; and 
(D) in paragraph (2) by striking "subscription". 
(4) Subsection (j) is amended— 
(A) by striking paragraphs (4) and (9) and redesignat-
ing paragraphs (2), (3), (5), (6), (7), and (8) as paragraphs 
(3), (5), (9), (12), (13), and (14), respectively; 
112 STAT. 2898 
PUBLIC LAW 105-304—OCT. 28, 1998 
(B) by inserting after paragraph (1) the following: 
"(2) An 'archived program' is a predetermined program 
that is available repeatedly on the demand of the transmission 
recipient and that is performed in the same order from the 
beginning, except that an archived program shall not include 
a recorded event or broadcast transmission that makes no 
more than an incidental use of sound recordings, as long as 
such recorded event or broadcast transmission does not contain 
an entire sound recording or feature a particular sound record-
ing."; 
(C) by inserting after paragraph (3), as so redesignated, 
the following: 
"(4) A 'continuous program' is a predetermined program 
that is continuously performed in the same order and that 
is accessed at a point in the program that is beyond the control 
of the transmission recipient."; 
(D) by inserting after paragraph (5), as so redesignated, 
the following: 
"(6) An 'eligible nonsubscription transmission' is a noninter-
active nonsubscription digital audio transmission not exempt 
under subsection (d)(1) that is made as part of a service that 
provides audio programming consisting, in whole or in part, 
of performances of sound recordings, including retransmissions 
of broadcast transmissions, if the primary purpose of the service 
is to provide to the public such audio or other entertainment 
programming, and the primary purpose of the service is not 
to sell, advertise, or promote particular products or services 
other than sound recordings, live concerts, or other music-
related events. 
"(7) An 'interactive service' is one that enables a member 
of the public to receive a transmission of a program specially 
created for the recipient, or on request, a transmission of a 
particular sound recording, whether or not as part of a program, 
which is selected by or on behalf of the recipient. The ability 
of individuals to request that particular sound recordings be 
performed for reception by the public at large, or in the case 
of a subscription service, by all subscribers of the service, 
does not make a service interactive, if the programming on 
each channel of the service does not substantially consist of 
sound recordings that are performed within 1 hour of the 
request or at a time designated by either the transmitting 
entity or the individual making such request. If an entity 
offers both interactive and noninteractive services (either 
concurrently or at different times), the noninteractive compo-
nent shall not be treated as part of an interactive service. 
"(8) A 'new subscription service' is a service that performs 
sound recordings by means of noninteractive subscription 
digital audio transmissions and that is not a preexisting 
subscription service or a preexisting satellite digital audio radio 
service."; 
(E) by inserting after paragraph (9), as so redesignated, 
the following: 
"(10) A 'preexisting satellite digital audio radio service' 
is a subscription satellite digital audio radio service provided 
pursuant to a satellite digital audio radio service license issued 
by the Federal Communications Commission on or before July 
31, 1998, and any renewal of such license to the extent of 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2899 
the scope of the original license, and may include a limited 
number of sample channels representative of the subscription 
service that are made available on a nonsubscription basis 
in order to promote the subscription service. 
"(11) A 'preexisting subscription service' is a service that 
performs sound recordings by means of noninteractive audio-
only subscription digital audio transmissions, which was in 
existence and was making such transmissions to the public 
for a fee on or before July 31, 1998, and may include a limited 
number of sample channels representative of the subscription 
service that are made available on a nonsubscription basis 
in order to promote the subscription service."; and 
(F) by adding at the end the following: 
"(15) A 'transmission' is either an initial transmission or 
a retransmission.". 
(5) The amendment made by paragraph (2)(B)(i)(III) of 17 USC114 note, 
this subsection shall be deemed to have been enacted as part 
of the Digital Performance Right in Sound Recordings Act of 
1995, and the publication of notice of proceedings under section 
114(f)(1) of title 17, United States Code, as in effect upon 
the effective date of that Act, for the determination of royalty 
payments shall be deemed to have been made for the period 
beginning on the effective date of that Act and ending on 
December 1, 2001. 
(6) The amendments made by this subsection do not annul, 
17 USC 114 note, 
limit, or otherwise impair the rights that are preserved by 
section 114 of title 17, United States Code, including the rights 
preserved by subsections (c), (d)(4), and (i) of such section, 
(b) EPHEMERAL RECORDINGS.—Section 112 of title 17, United 
States Code, is amended— 
(1) by redesignating subsection (e) as subsection (f); and 
(2) by inserting after subsection (d) the following: 
"(e) STATUTORY LICENSE.—<1) A transmitting organization enti-
tled to transmit to the public a performance of a sound recording 
under the limitation on exclusive rights specified by section 
114(d)(l)(C)(iv) or under a statutory license in accordance with 
section 114(f) is entitled to a statutory license, under the conditions 
specified by this subsection, to make no more than 1 phonorecord 
of the sound recording (unless the terms and conditions of the 
statutory license allow for more), if the following conditions are 
satisfied: 
"(A) The phonorecord is retained and used solely by the 
transmitting organization that made it, and no 
further 
phonorecords are reproduced from it. 
"(B) The phonorecord is used solely for the transmitting 
organization's own transmissions originating in the United 
States under a statutory license in accordance with section 
114(f) or the limitation on exclusive rights specified by section 
114(d)(l)(C)(iv). 
"(C) Unless preserved exclusively for purposes of archival 
preservation, the phonorecord is destroyed within 6 months 
from the date the sound recording was first transmitted to 
the public using the phonorecord. 
"(D) Phonorecords of the sound recording have been distrib-
uted to the public under the authority of the copyright owner 
or the copyright owner authorizes the transmitting entity to 
transmit the sound recording, and the transmitting entity 
112 STAT. 2900 
PUBLIC LAW 105-304—OCT. 28, 1998 
Deadline. 
Federal Register, 
publication. 
Notice. 
Federal Register, 
publication. 
makes the phonorecord under this subsection from a phono-
record lawfully made and acquired under the authority of the 
copyright owner. 
"(3) Notwithstanding any provision of the antitrust laws, any 
copyright owners of sound recordings and any 
transmitting 
organizations entitled to a statutory license under this subsection 
may negotiate and agree upon royalty rates and license terms 
and conditions for making phonorecords of such sound recordings 
under this section and the proportionate division of fees paid among 
copyright owners, and may designate common agents to negotiate, 
agree to, pay, or receive such royalty payments. 
"(4) No later than 30 days after the date of the enactment 
of the Digital Millennium Copyright Act, the Librarian of Congress 
shall cause notice to be published in the Federal Register of the 
initiation of voluntary negotiation proceedings for the purpose of 
determining reasonable terms and rates of royalty payments for 
the activities specified by paragraph (2) of this subsection during 
the period beginning on the date of the enactment of such Act 
and ending on December 31, 2000, or such other date as the 
parties may agree. Such rates shall include a minimum fee for 
each type of service offered by transmitting organizations. Any 
copyright owners of sound recordings or any transmitting organiza-
tions entitled to a statutory license under this subsection may 
submit to the Librarian of Congress licenses covering such activities 
with respect to such sound recordings. The parties to each negotia-
tion proceeding shall bear their own costs. 
"(5) In the absence of license agreements negotiated under 
paragraph (3), during the 60-day period commencing 6 months 
after publication of the notice specified in paragraph (4), and upon 
the filing of a petition in accordance with section 803(a)(1), the 
Librarian of Congress shall, pursuant to chapter 8, convene a copy-
right arbitration royalty panel to determine and publish in the 
Federal Register a schedule of reasonable rates and terms which, 
subject to paragraph (6), shall be binding on all copyright owners 
of sound recordings and transmitting organizations entitled to a 
statutory license under this subsection during the period beginning 
on the date of the enactment of the Digital Millennium Copyright 
Act and ending on December 31, 2000, or such other date as 
the parties may agree. Such rates shall include a minimum fee 
for each tjrpe of service offered by transmitting organizations. The 
copyright arbitration royalty panel shall establish rates that most 
clearly represent the fees that would have been negotiated in the 
marketplace between a willing buyer and a willing seller. In deter-
mining such rates and terms, the copyright arbitration royalty 
panel shall base its decision on economic, competitive, and program-
ming information presented by the parties, including— 
"(A) whether use of the service may substitute for or may 
promote the sales of phonorecords or otherwise interferes with 
or enhances the copyright owner's traditional streams of reve-
nue; and 
"(B) the relative roles of the cop3nright owner and the 
transmitting organization in the cop3nrighted work and the serv-
ice made available to the public with respect to relative creative 
contribution, technological contribution, capital investment, 
cost, and risk. 
In establishing such rates and terms, the copyright arbitration 
royalty panel may consider the rates and terms under voluntary 
PUBLIC LAW 105-304—OCT, 28, 1998 
112 STAT. 2901 
license agreements negotiated as provided in paragraphs (3) and 
(4). The Librarian of Congress shall also establish requirements 
by which copyright owners may receive reasonable notice of the 
use of their sound recordings under this section, and under which 
records of such use shall be kept and made available by transmitting 
organizations entitled to obtain a statutory license under this sub-
section. 
"(6) License agreements voluntarily negotiated at any time 
between 1 or more copyright owners of sound recordings and 1 
or more transmitting organizations entitled to obtain a statutory 
license under this subsection shall be given effect in lieu of any 
determination by a copyright arbitration royalty panel or decision 
by the Librarian of Congress. 
"(7) Publication of a notice of the initiation of voluntary negotia- Regulations, 
tion proceedings as specified in paragraph (4) shall be repeated, 
in accordance with regulations that the Librarian of Congress shall 
prescribe, in the first week of January 2000, and at 2-year intervals 
thereafter, except to the extent that different years for the repeating 
of such proceedings may be determined in accordance with para-
graph (4). The procedures specified in paragraph (5) shall be 
repeated, in accordance with regulations that the Librarian of Con-
gress shall prescribe, upon filing of a petition in accordance with 
section 803(a)(1), during a 60-day period commencing on July 1, 
2000, and at 2-year intervals thereafter, except to the extent that 
different years for the repeating of such proceedings may be deter-
mined in accordance with paragraph (4). The procedures specified 
in paragraph (5) shall be concluded in accordance with section 
802. 
"(8)(A) Any person who wishes to make a phonorecord of a 
sound recording under a statutory license in accordance with this 
subsection may do so without infringing the exclusive right of 
the copyright owner of the sound recording under section 106(1)— 
"(i) by compljdng with such notice requirements as the 
Librarian of Congress shall prescribe by regulation and by 
paying royalty fees in accordance with this subsection; or 
"(ii) if such royalty fees have not been set, by agreeing 
to pay such royalty fees as shall be determined in accordance 
with this subsection. 
"(B) Any royalty payments in arrears shall be made on or 
before the 20th day of the month next succeeding the month in 
which the royalty fees are set. 
"(9) If a transmitting organization entitled to make a phono-
record under this subsection is prevented from making such phono-
record by reason of the application by the copyright owner of tech-
nical measures that prevent the reproduction of the sound recording, 
the copyright owner shall make available to the transmitting 
organization the necessary means for permitting the making of 
such phonorecord as permitted under this subsection, if it is techno-
logically feasible and economically reasonable for the copyright 
owner to do so. If the copyright owner fails to do so in a timely 
manner in light of the transmitting organization's reasonable busi-
ness requirements, the transmitting organization shall not be liable 
for a violation of section 1201(a)(1) of this title for engaging in 
such activities as are necessary to make such phonorecords as 
permitted under this subsection. 
"(10) Nothing in this subsection annuls, limits, impairs, or 
otherwise affects in any way the existence or value of any of 
112 STAT. 2902 
PUBLIC LAW 105-304—OCT. 28, 1998 
the exclusive rights of the cop5n:ight owners in a sound recording, 
except as otherwise provided in this subsection, or in a musical 
work, including the exclusive rights to reproduce and distribute 
a sound recording or musical work, including by means of a digital 
phonorecord delivery, under sections 106(1), 106(3), and 115, and 
the right to perform publicly a sound recording or musical work, 
including by means of a digital audio transmission, under sections 
106(4) and 106(6).". 
17 u s e 112 note. 
(c) SCOPE OF SECTION 112(a) OF TiTLE 17 NOT AFFECTED.— 
Nothing in this section or the amendments made by this section 
shall affect the scope of section 112(a) of title 17, United States 
Code, or the entitlement of any person to an exemption thereunder. 
(d) PROCEDURAL AMENDMENTS TO CHAPTER 8.—Section 802 of 
title 17, United States Code, is amended— 
(1) in subsection (f)— 
(A) in the first sentence by striking "60" and inserting 
"90"; and 
(B) in the third sentence by striking "that 60-day 
period" and inserting "an additional 30-day period"; and 
(2) in subsection (g) by inserting after the second sentence 
the following: "When this title provides that the royalty rates 
or terms that were previously in effect are to expire on a 
specified date, any adjustment by the Librarian of those rates 
or terms shall be effective as of the day following the date 
of expiration of the rates or terms that were previously in 
effect, even if the Librarian's decision is rendered on a later 
date.". 
(e) CONFORMING AMENDMENTS.—(1) Section 801(b)(1) of title 
17, United States Code, is amended in the second sentence by 
striking "sections 114, 115, and 116" and inserting "sections 
114(f)(1)(B), 115, and 116". 
(2) Section 802(c) of title 17, United States Code, is amended 
by striking "section 111, 114, 116, or 119, any person entitled 
to a compulsory license" and inserting "section 111, 112, 114, 116, 
or 119, any transmitting organization entitled to a statutory license 
under section 112(f), any person entitled to a statutory license". 
(3) Section 802(g) of title 17, United States Code, is amended 
by striking "sections 111, 114" and inserting "sections 111, 112, 
114". 
(4) Section 802(h)(2) of title 17, United States Code, is amended 
by striking "section 111, 114" and inserting "section 111, 112, 114". 
(5) Section 803(a)(1) of title 17, United States Code, is amended 
by striking "sections 114, 115" and inserting "sections 112, 114, 
115". 
(6) Section 803(a)(5) of title 17, United States Code, is 
amended— 
(A) by striking "section 114" and inserting "section 112 
or 114"; and 
(B) by striking "that section" and inserting "those sections". 
SEC. 406. ASSUMPTION OF CONTRACTUAL OBUGATIONS RELATED TO 
TRANSFERS OF RIGHTS IN MOTION PICTURES. 
(a) IN GENERAL.—Part VI of title 28, United States Code, is 
amended by adding at the end the following new chapter: 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2903 
"CHAPTER 180—ASSUMPTION OF CERTAIN 
CONTRACTUAL OBLIGATIONS 
"Sec. 4001. Assumption of contractual obligations related to transfers of rights in 
motion pictures. 
"§4001. Assumption of contractual obligations related to 
transfers of rights in motion pictures 
"(a) ASSUMPTION OF OBLIGATIONS.—<1) In the case of a transfer 
of copyright ownership under United States law in a motion picture 
(as the terms 'transfer of copyright ownership' and 'motion picture' 
are defined in section 101 of title 17) that is produced subject 
to 1 or more collective bargaining agreements negotiated under 
the laws of the United States, if the transfer is executed on or 
after the effective date of this chapter and is not limited to public 
performance rights, the transfer instrument shall be deemed to 
incorporate the assumption agreements applicable to the copyright 
ownership being transferred that are required by the applicable 
collective bargaining agreement, and the transferee shall be subject 
to the obligations under each such assumption agreement to make 
residual payments and provide related notices, accruing after the 
effective date of the transfer and applicable to the exploitation 
of the rights transferred, and any remedies under each such 
assumption agreement for breach of those obligations, as those 
obligations and remedies are set forth in the applicable collective 
bargaining agreement, if— 
"(A) the transferee knows or has reason to know at the 
time of the transfer that such collective bargaining agreement 
was or will be applicable to the motion picture; or 
"(B) in the event of a court order confirming an arbitration 
award against the transferor under the collective bargaining 
agreement, the transferor does not have the financial ability 
to satisfy the award within 90 days after the order is issued. 
"(2) For purposes of paragraph (1)(A), 'knows or has reason 
to know' means any of the following: 
"(A) Actual knowledge that the collective bargaining agree-
ment was or will be applicable to the motion picture. 
"(B)(i) Constructive knowledge that the collective bargain-
ing agreement was or will be applicable to the motion picture, 
arising from recordation of a document pertaining to copyright 
in the motion picture under section 205 of title 17 or from 
publication, at a site available to the public on-line that is 
operated by the relevant union, of information that identifies 
the motion picture as subject to a collective bargaining agree-
ment with that union, if the site permits commercially reason-
able verification of the date on which the information was 
available for access. 
"(ii) Clause (i) applies only if the transfer referred to in Applicability, 
subsection (a)(1) occurs— 
"(I) after the motion picture is completed, or 
"(II) before the motion picture is completed and— 
"(aa) within 18 months before the filing of an 
application for copyright registration for the motion 
picture under section 408 of title 17, or 
"(bb) if no such application is filed, within 18 
months before the first publication of the motion pic-
ture in the United States. 
112 STAT. 2904 
PUBLIC LAW 105-304—OCT. 28, 1998 
"(C) Awareness of other facts and circumstances pertaining 
to a particular transfer from which it is apparent that the 
collective bargaining agreement was or will be applicable to 
the motion picture. 
"(b) SCOPE OF EXCLUSION OF TRANSFERS OF PUBLIC PERFORM-
ANCE RIGHTS.—^For purposes of this section, the exclusion under 
subsection (a) of transfers of copyright ownership in a motion picture 
that are limited to public performance rights includes transfers 
to a terrestrial broadcast station, cable system, or programmer 
to the extent that the station, system, or programmer is functioning 
as an exhibitor of the motion picture, either by exhibiting the 
motion picture on its own network, system, service, or station, 
or by initiating the transmission of an exhibition that is carried 
on another network, system, service, or station. When a terrestrial 
broadcast station, cable system, or programmer, or other transferee, 
is also functioning otherwise as a distributor or as a producer 
of the motion picture, the public performance exclusion does not 
affect any obligations imposed on the transferee to the extent that 
it is engaging in such functions. 
"(c) EXCLUSION FOR GRANTS OF SECURITY INTERESTS.—Sub-
section (a) shall not apply to— 
"(1) a transfer of copyright ownership consisting solely 
of a mortgage, hypothecation, or other security interest; or 
"(2) a subsequent transfer of the copyright ownership 
secured by the security interest described in paragraph (1) 
by or under the authority of the secured party, including a 
transfer through the exercise of the secured party's rights or 
remedies as a secured party, or by a subsequent transferee. 
The exclusion under this subsection shall not affect any rights 
or remedies under law or contract. 
"(d) DEFERRAL PENDING RESOLUTION OF BONA FIDE DISPUTE.— 
A transferee on which obligations are imposed under subsection 
(a) by virtue of paragraph (1) of that subsection may elect to 
defer performance of such obligations that are subject to a bona 
fide dispute between a union and a prior transferor until that 
dispute is resolved, except that such deferral shall not stay accrual 
of any union claims due under an applicable collective bargaining 
agreement. 
"(e) SCOPE OF OBLIGATIONS DETERMINED BY PRIVATE AGREE-
MENT.—^Nothing in this section shall expand or diminish the rights, 
obligations, or remedies of any person under the collective bargain-
ing agreements or assumption agreements referred to in this sec-
tion. 
"(f) FAILURE To NOTIFY.—If the transferor under subsection 
(a) fails to notify the transferee under subsection (a) of applicable 
collective bargaining obligations before the execution of the transfer 
instrument, and subsection (a) is made applicable to the transferee 
solely by virtue of subsection (a)(1)(B), the transferor shall be liable 
to the transferee for any damages suffered by the transferee as 
a result of the failure to notify. 
"(g) DETERMINATION OF DISPUTES AND CLAIMS.—Any dispute 
concerning the application of subsections (a) through (f) shall be 
determined by an action in United States district court, and the 
court in its discretion may allow the recovery of full costs by 
or against any party and may also award a reasonable attorney's 
fee to the prevailing party as part of the costs. 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2905 
"(h) STUDY.—^The Comptroller Greneral, in consultation with 
the Register of Copyrights, shall conduct a study of the conditions 
in the motion picture industry that gave rise to this section, and 
the impact of this section on the motion picture industry. The Reports. 
Comptroller General shall report the findings of the study to the 
Congress within 2 years after the effective date of this chapter.". 
(b) CONFORMING AMENDMENT.—^The table of chapters for part 
VI of title 28, United States Code, is amended by adding at the 
end the following: 
"180. Assumption of Certain Contractual Obligations 
4001". 
SEC. 407. EFFECTIVE DATE. 
17 USC 108 note. 
Except as otherwise provided in this title, this title and the 
amendments made by this title shall take effect on the date of 
the enactment of this Act. 
TITLE V—PROTECTION OF CERTAIN 
ORIGINAL DESIGNS 
Vessel Hull 
Design Protection 
Act. 
SEC. 501. SHORT TITLE. 
. 17 USC 101 note. 
This Act may be referred to as the "Vessel Hull Design Protec-
tion Act". 
SEC. 502. PROTECTION OF CERTAIN ORIGINAL DESIGNS. 
Title 17, United States Code, is amended by adding at the 
end the following new chapter: 
"CHAPTER 13—PROTECTION OF ORIGINAL DESIGNS 
"Sec. 
"1301. Designs protected. 
"1302. Designs not subject to protection. 
"1303. Revisions, adaptations, and rearrangements. 
"1304. Commencement of protection. 
"1305. Term of protection. 
"1306. Design notice. 
"1307. Effect of omission of notice. 
"1308. Exclusive rights. 
"1309. Infringemenl;. 
"1310. Application for remstration. 
"1311. Benefit of earlier nling date in foreign country. 
"1312. Oaths and acknowledgments. 
"1313. Examination of application and issue or refusal of registration. 
"1314. Certification of registration. 
"1315. Publication of announcements and indexes. 
"1316. Fees. 
"1317. Regulations. 
"1318. Copies of records. 
"1319. Correction of errors in certificates. 
"1320. Ownership and transfer. 
"1321. Remedy for infringement. 
"1322. Injunctions. 
"1323. Recovery for infringement. 
"1324. Power of court over registration. 
"1325. Liability for action on registration fraudulently obtained. 
"1326. Penalty for false marking. 
"1327. Penalty for false representation. 
"1328. Enforcement by Treasury and Postal Service. 
"1329. Relation to design patent law. 
"1330. Common law and other rights unaffected. 
"1331. Administrator; Office of the Administrator. 
"1332. No retroactive effect. 
*
*
§ 1301. Designs protected 
"(a) DESIGNS PROTECTED.— 
112 STAT. 2906 
PUBLIC LAW 105-304—OCT. 28, 1998 
"(1) IN GENERAL.—The designer or other owner of an origi-
nal design of a useful article which makes the article attractive 
or distinctive in appearance to the purchasing or using public 
may secure the protection provided by this chapter upon 
complying with and subject to this chapter. 
"(2) VESSEL HULLS.—^The design of a vessel hull, including 
a plug or mold, is subject to protection under this chapter, 
notwithstanding section 1302(4). 
"(b) DEFINITIONS.—For the purpose of this chapter, the 
following terms have the following meanings: 
"(1) A design is 'original' if it is the result of the designer's 
creative endeavor that provides a distinguishable variation over 
prior work pertaining to similar articles which is more than 
merely trivial and has not been copied from another source. 
"(2) A 'useful article' is a vessel hull, including a plug 
or mold, which in normal use has an intrinsic utilitarian func-
tion that is not merely to portray the appearance of the article 
or to convey information. An article which normally is part 
of a useful article shall be deemed to be a useful article. 
"(3) A Vessel' is a craft, especially one larger than a row-
boat, designed to navigate on water, but does not include any 
such craft that exceeds 200 feet in length. 
"(4) A 'hull' is the frame or body of a vessel, including 
the deck of a vessel, exclusive of masts, sails, yards, and rigging. 
"(5) A 'plug' means a device or model used to make a 
mold for the purpose of exact duplication, regardless of whether 
the device or model has an intrinsic utilitarian function that 
is not only to portray the appearance of the product or to 
convey information. 
"(6) A 'mold' means a matrix or form in which a substance 
for material is used, regardless of whether the matrix or form 
has an intrinsic utilitarian function that is not only to portray 
the appearance of the product or to convey information. 
*'§ 1302. Designs not subject to protection 
"Protection under this chapter shall not be available for a 
design that is— 
"(1) not original; 
"(2) staple or commonplace, such as a standard geometric 
figure, a familiar symbol, an emblem, or a motif, or another 
shape, pattern, or configuration which has become standard, 
common, prevalent, or ordinary; 
"(3) different from a design excluded by paragraph (2) 
only in insignificant details or in elements which are variants 
commonly used in the relevant trades; 
"(4) dictated solely by a utilitarian function of the article 
that embodies it; or 
"(5) embodied in a useful article that was made public 
by the designer or owner in the United States or a foreign 
country more than 1 year before the date of the application 
for registration under this chapter. 
*'§ 1303. Revisions, adaptations, and rearrangements 
"Protection for a design under this chapter shall be available 
notwithstanding the employment in the design of subject matter 
excluded from protection under section 1302 if the design is a 
substantial revision, adaptation, or rearrangement of such subject 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2907 
matter. Such protection shall be independent of any subsisting 
protection in subject matter employed in the design, and shall 
not be construed as securing any right to subject matter excluded 
from protection under this chapter or as extending any subsisting 
protection under this chapter. 
*
*
§ 1304. Commencement of protection 
"The protection provided for a design under this chapter shall 
commence upon the earlier of the date of publication of the registra-
tion under section 1313(a) or the date the design is first made 
public as defined by section 1310(b). 
"§ 1305. Term of protection 
"(a) IN GENERAL.—Subject to subsection (b), the protection 
provided under this chapter for a design shall continue for a term 
of 10 years beginning on the date of the commencement of protection 
under section 1304. 
"(b) EXPIRATION.—^All terms of protection provided in this 
section shall run to the end of the calendar year in which they 
would otherwise expire. 
"(c) TERMINATION OF RIGHTS.—^Upon expiration or termination 
of protection in a particular design under this chapter, all rights 
under this chapter in the design shall terminate, regardless of 
the number of different articles in which the design may have 
been used during the term of its protection. 
''§ 1306. Design notice 
"(a) CONTENTS OF DESIGN NOTICE.—(1) Whenever any design 
for which protection is sought under this chapter is made public 
under section 1310(b), the owner of the design shall, subject to 
the provisions of section 1307, mark it or have it marked legibly 
with a design notice consisting of— 
"(A) the words 'Protected Design', the abbreviation 'Prot'd 
Des.', or the letter 'D' with a circle, or the s3anbol '*D*'; 
"(B) the year of the date on which protection for the design 
commenced; and 
"(C) the name of the owner, an abbreviation by which 
the name can be recognized, or a generally accepted alternative 
designation of the owner. 
Any distinctive identification of the owner may be used for purposes 
of subparagraph (C) if it has been recorded by the Administrator 
before the design marked with such identification is registered. 
"(2) After registration, the registration number may be used 
instead of the elements specified in subparagraphs (B) and (C) 
of paragraph (1). 
"(b) LOCATION OF NOTICE.—^The design notice shall be so located 
and applied as to give reasonable notice of design protection while 
the useful article embodying the design is passing through its 
normal channels of commerce. 
"(c) SUBSEQUENT REMOVAL OF NOTICE.—^When the owner of 
a design has complied with the provisions of this section, protection 
under this chapter shall not be affected by the removal, destruction, 
or obliteration by others of the design notice on an article. 
*
*
§ 1307. Effect of omission of notice 
"(a) ACTIONS WITH NOTICE.—^Except as provided in subsection 
(b), the omission of the notice prescribed in section 1306 shall 
112 STAT. 2908 
PUBLIC LAW 105-304—OCT. 28, 1998 
not cause loss of the protection under this chapter or prevent 
recovery for infringement under this chapter against any person 
who, after receiving written notice of the design protection, begins 
an undertaking leading to infringement under this chapter. 
"(b) ACTIONS WITHOUT NOTICE.—^The omission of the notice 
prescribed in section 1306 shall prevent any recovery under section 
1323 against a person who began an undertaking leading to 
infringement under this chapter before receiving written notice 
of the design protection. No injunction shall be issued under this 
chapter with respect to such undertaking unless the owner of the 
design reimburses that person for any reasonable expenditure or 
contractual obligation in connection with such undertaking that 
was incurred before receiving written notice of the design protection, 
as the court in its discretion directs. The burden of providing 
written notice of design protection shall be on the owner of the 
design. 
"§ 1308. Exclusive rights 
"The owner of a design protected under this chapter has the 
exclusive right to— 
"(1) make, have made, or import, for sale or for use in 
trade, any useful article embodying that design; and 
"(2) sell or distribute for sale or for use in trade any 
useful article embodying that design. 
"§ 1309. Infringement 
"(a) ACTS OF INFRINGEMENT.—^Except as provided in subsection 
(b), it shall be infringement of the exclusive rights in a design 
protected under this chapter for any person, without the consent 
of the owner of the design, within the United States and during 
the term of such protection, to— 
"(1) make, have made, or import, for sale or for use in 
trade, any infringing article as defined in subsection (e); or 
"(2) sell or distribute for sale or for use in trade any 
such infringing article. 
"(b) ACTS OF SELLERS AND DISTRIBUTORS.—^A seller or distribu-
tor of an infringing article who did not make or import the article 
shall be deemed to have infringed on a design protected under 
this chapter only if that person— 
"(1) induced or acted in collusion with a manufacturer 
to make, or an importer to import such article, except that 
merely purchasing or giving an order to purchase such article 
in the ordinary course of business shall not of itself constitute 
such inducement or collusion; or 
"(2) refused or failed, upon the request of the owner of 
the design, to make a prompt and full disclosure of that person's 
source of such article, and that person orders or reorders such 
article after receiving notice by registered or certified mail 
of the protection subsisting in the design. 
"(c) ACTS WITHOUT KNOWLEDGE.—It shall not be infringement 
under this section to make, have made, import, sell, or distribute, 
any article embodying a design which was created without knowl-
edge that a design was protected under this chapter and was 
copied from such protected design. 
"(d) ACTS IN ORDINARY COURSE OF BUSINESS.—A person who 
incorporates into that person's product of manufacture an infringing 
article acquired from others in the ordinary course of business, 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2909 
or who, without knowledge of the protected design embodied in 
an infringing article, makes or processes the infringing article for 
the account of another person in the ordinary course of business, 
shall not be deemed to have infringed the rights in that design 
under this chapter except under a condition contained in paragraph 
(1) or (2) of subsection (b). Accepting an order or reorder from 
the source of the infringing article shall be deemed ordering or 
reordering within the meaning of subsection (b)(2). 
"(e) INFRINGING ARTICLE DEFINED.—AS used in this section, 
an 'infringing article' is any article the design of which has been 
copied from a design protected under this chapter, without the 
consent of the owner of the protected design. An infringing article 
is not an illustration or picture of a protected design in an advertise-
ment, book, periodical, newspaper, photograph, broadcast, motion 
picture, or similar medium. A design shall not be deemed to have 
been copied from a protected design if it is original and not substan-
tially similar in appearance to a protected design. 
"(f) ESTABLISHING ORIGINALITY.—The party to any action or 
proceeding under this chapter who alleges rights under this chapter 
in a design shall have the burden of establishing the design's 
originality whenever the opposing party introduces an earlier work 
which is identical to such design, or so similar as to make prima 
facie showing that such design was copied from such work. 
"(g) REPRODUCTION FOR TEACHING OR ANALYSIS.—It is not an 
infringement of the exclusive rights of a design owner for a person 
to reproduce the design in a useful article or in any other form 
solely for the purpose of teaching, analyzing, or evaluating the 
appearance, concepts, or techniques embodied in the design, or 
the function of the useful article embodying the design. 
^§ 1310. Application for registration 
"(a) TIME LIMIT FOR APPLICATION FOR REGISTRATION.—Protec-
tion under this chapter shall be lost if application for registration 
of the design is not made within 2 years after the date on which 
the design is first made public. 
"(b) WHEN DESIGN IS MADE PUBLIC—A design is made public 
when an existing useful article embodying the design is anywhere 
publicly exhibited, publicly distributed, or offered for sale or sold 
to the public by the owner of the design or with the owner's 
consent. 
"(c) APPLICATION BY OWNER OF DESiGN.^Application for reg-
istration may be made by the owner of the design. 
"(d) CONTENTS OF APPLICATION.—^The application for registra-
tion shall be made to the Administrator and shall state— 
"(1) the name and address of the designer or designers 
of the design; 
"(2) the name and address of the owner if different from 
the designer; 
"(3) the specific name of the useful article embodying the 
design; 
"(4) the date, if any, that the design was first made public, 
if such date was earlier than the date of the application; 
"(5) affirmation that the design has been fixed in a useful 
article; and 
"(6) such other information as may be required by the 
Administrator. 
112 STAT. 2910 
PUBLIC LAW 105-304—OCT. 28, 1998 
The application for registration may include a description setting 
forth the salient features of the design, but the absence of such 
a description shall not prevent registration under this chapter. 
"(e) SWORN STATEMENT,—^The application for registration shall 
be accompanied by a statement under oath by the applicant or 
the applicant's duly authorized agent or representative, setting 
forth, to the best of the applicant's knowledge and belief— 
"(1) that the design is original and was created by the 
designer or designers named in the application; 
"(2) that the design has not previously been registered 
' on behalf of the applicant or the applicant's predecessor in 
title; and 
"(3) that the applicant is the person entitled to protection 
and to registration under this chapter. 
If the design has been made public with the design notice prescribed 
in section 1306, the statement shall also describe the exact form 
and position of the design notice. 
"(f) EFFECT OF ERRORS.—(1) Error in any statement or asser-
tion as to the utility of the useful article named in the application 
under this section, the design of which is sought to be registered, 
shall not affect the protection secured under this chapter. 
"(2) Errors in omitting a joint designer or in naming an alleged 
joint designer shall not affect the validity of the registration, or 
the actual ownership or the protection of the design, unless it 
is shown that the error occurred with deceptive intent. 
"(g) DESIGN MADE IN SCOPE OF EMPLOYMENT.—In a case in 
which the design was made within the regular scope of the design-
er's employment and individual authorship of the design is difficult 
or impossible to ascribe and the application so states, the name 
and address of the employer for whom the design was made may 
be stated instead of that of the individual designer. 
"(h) PICTORIAL REPRESENTATION OF DESIGN.—^The application 
for registration shall be accompanied by two copies of a drawing 
or other pictorial representation of the useful article embodying 
the design, having one or more views, adequate to show the design, 
in a form and style suitable for reproduction, which shall be deemed 
a part of the application. 
"(i) DESIGN IN MORE THAN ONE USEFUL ARTICLE.—If the distin-
guishing elements of a design are in substantially the same form 
in different useful articles, the design shall be protected as to 
all such useful articles when protected as to one of them, but 
not more than one registration shall be required for the design. 
"(j) APPLICATION FOR MORE THAN ONE DESIGN.—^More than 
one design may be included in the same application under such 
conditions as may be prescribed by the Administrator. For each 
design included in an application the fee prescribed for a single 
design shall be paid. 
"§ 1311. Benefit of earlier filing date in foreign country 
"An application for registration of a design filed in the United 
States by any person who has, or whose legal representative or 
predecessor or successor in title has, previously filed an application 
for registration of the same design in a foreign country which 
extends to designs of owners who are citizens of the United States, 
or to applications filed under this chapter, similar protection to 
that provided under this chapter shall have that same effect as 
if filed in the United States on the date on which the application 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2911 
was first filed in such foreign country, if the appHcation in the 
United States is filed within 6 months after the earliest date 
on which any such foreign application was filed. 
'*§ 1312. Oaths and acknowledgments 
"(a) IN GENERAL.—Oaths and acknowledgments required by 
this chapter— 
"(1) may be made— 
"(A) before any person in the United States authorized 
by law to administer oaths; or 
"(B) when made in a foreign country, before any diplo-
matic or consular officer of the United States authorized 
to administer oaths, or before any official authorized to 
administer oaths in the foreign country concerned, whose 
authority shall be proved by a certificate of a diplomatic 
or consular officer of the United States; and 
"(2) shall be valid if they comply with the laws of the 
State or country where made. 
"(b) WRITTEN DECLARATION IN LIEU OF OATH.—(1) The Adminis-
trator may by rule prescribe that any document which is to be 
filed under this chapter in the Office of the Administrator and 
which is required by any law, rule, or other regulation to be under 
oath, may be subscribed to by a written declaration in such form 
as the Administrator may prescribe, and such declaration shall 
be in lieu of the oath otherwise required. 
"(2) Whenever a written declaration under paragraph (1) is 
used, the document containing the declaration shall state that 
willful false statements are punishable by fine or imprisonment, 
or both, pursuant to section 1001 of title 18, and may jeopardize 
the validity of the application or document or a registration result-
ing therefrom. 
'*§ 1313. Examination of application and issue or refusal of 
registration 
"(a) DETERMINATION OF REGISTRABILITY OF DESIGN; REGISTRA-
TION.—^Upon the filing of an application for registration in proper 
form under section 1310, and upon payment of the fee prescribed 
under section 1316, the Administrator shall determine whether 
or not the application relates to a design which on its face appears 
to be subject to protection under this chapter, and, if so, the Register 
shall register the design. Registration under this subsection shall Publication, 
be announced by publication. The date of registration shall be 
the date of publication. 
"(b) REFUSAL TO REGISTER; RECONSIDERATION.—If, in the judg-
ment of the Administrator, the application for registration relates 
to a design which on its face is not subject to protection under 
this chapter, the Administrator shall send to the applicant a notice 
of refusal to register and the grounds for the refusal. Within 3 
months after the date on which the notice of refusal is sent, the 
applicant may, by written request, seek reconsideration of the 
application. After consideration of such a request, the Administrator 
shall either register the design or send to the applicant a notice 
of final refusal to register. 
"(c) APPLICATION TO CANCEL REGISTRATION.—^Any person who 
believes he or she is or will be damaged by a registration under 
this chapter may, upon payment of the prescribed fee, apply to 
the Administrator at any time to cancel the registration on the 
112 STAT. 2912 
PUBLIC LAW 105-304—OCT. 28, 1998 
ground that the design is not subject to protection under this 
chapter, stating the reasons for the request. Upon receipt of an 
application for cancellation, the Administrator shall send to the 
owner of the design, as shown in the records of the Office of 
the Administrator, a notice of the application, and the owner shall 
have a period of 3 months after the date on which such notice 
is mailed in which to present arguments to the Administrator 
Regulations. 
for support of the validity of the registration. The Administrator 
shall also have the authority to establish, by regulation, conditions 
under which the opposing parties may appear and be heard in 
support of their arguments. If, after the periods provided for the 
presentation of arguments have expired, the Administrator deter-
mines that the applicant for cancellation has established that the 
design is not subject to protection under this chapter, the Adminis-
Publication. 
trator shall order the registration stricken from the record. Can-
cellation under this subsection shall be announced by publication, 
and notice of the Administrator's final determination with respect 
to any application for cancellation shall be sent to the applicant 
and to the owner of record. 
"§ 1314. Certification of registration 
"Certificates of registration shall be issued in the name of 
the United States under the seal of the Office of the Administrator 
and shall be recorded in the official records of the Office. The 
certificate shall state the name of the useful article, the date of 
filing of the application, the date of registration, and the date 
the design was made public, if earlier than the date of filing 
of the application, and shall contain a reproduction of the drawing 
or other pictorial representation of the design. If a description 
of the salient features of the design appears in the application, 
the description shall also appear in the certificate. A certificate 
of registration shall be admitted in any court as prima facie evidence 
of the facts stated in the certificate. 
'*§ 1315. Publication of announcements and indexes 
"(a) PUBLICATIONS OF THE ADMINISTRATOR.—^The Administrator 
shall publish lists and indexes of registered designs and cancella-
tions of designs and may also publish the drawings or other pictorial 
representations of registered designs for sale or other distribution. 
"(b) FILE OF REPRESENTATIVES OF REGISTERED DESIGNS.—The 
Administrator shall establish and maintain a file of the drawings 
or other pictorial representations of registered designs. The file 
shall be available for use by the public under such conditions 
as the Administrator may prescribe. 
«§ 1316. Fees 
"The Administrator shall by regulation set reasonable fees for 
the filing of applications to register designs under this chapter 
and for other services relating to the administration of this chapter, 
taking into consideration the cost of providing these services and 
the benefit of a public record. 
''§ 1317. Regulations 
"The Administrator may establish regulations for the adminis-
tration of this chapter. 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2913 
"§ 1318. Copies of records 
"Upon pa3nnent of the prescribed fee, any person may obtain 
a certified copy of any official record of the Office of the Adminis-
trator that relates to this chapter. That copy shall be admissible 
in evidence with the same effiBct as the original. 
"§ 1319. Correction of errors in certificates 
"The Administrator may, by a certificate of correction under 
seal, correct any error in a registration incurred through the fault 
of the Office, or, upon payment of the required fee, any error 
of a clerical or typographical nature occurring in good faith but 
not through the fault of the Office. Such registration, together 
with the certificate, shall thereafter have the same effect as if 
it had been originally issued in such corrected form. 
'*§ 1320. Ownership and transfer 
"(a) PROPERTY RIGHT IN DESIGN.—The property right in a 
design subject to protection under this chapter shall vest in the 
designer, the legal representatives of a deceased designer or of 
one under legal incapacity, the employer for whom the designer 
created the design in the case of a design made within the regular 
scope of the designer's employment, or a person to whom the rights 
of the designer or of such employer have been transferred. The 
person in whom the property right is vested shall be considered 
the owner of the design. 
"(b) TRANSFER OF PROPERTY RIGHT.—The property right in 
a registered design, or a design for which an application for registra-
tion has been or may be filed, may be assigned, granted, conveyed, 
or mortgaged by an instrument in writing, signed by the owner, 
or may be bequeathed by will. 
"(c) OATH OR ACKNOWLEDGEMENT OF TRANSFER.^An oath or 
acknowledgment under section 1312 shall be prima facie evidence 
of the execution of an assignment, grant, conveyance, or mortgage 
under subsection (b). 
"(d) 
RECORDATION OF TRANSFER.^An assignment, 
grant, 
conveyance, or mortgage under subsection (b) shall be void as 
against any subsequent purchaser or mortgagee for a valuable 
consideration, unless it is recorded in the Office of the Administrator 
within 3 months after its date of execution or before the date 
of such subsequent purchase or mortgage. 
"§ 1321. Remedy for infringement 
"(a) IN GENERAL.—^The owner of a design is entitled, after 
issuance of a certificate of registration of the design under this 
chapter, to institute an action for any infringement of the design. 
"(b) REVIEW OF REFUSAL TO REGISTER.-—(1) Subject to para-
graph (2), the owner of a design may seek judicial review of a 
final refusal of the Administrator to register the design under 
this chapter by bringing a civil action, and may in the same action, 
if the court adjudges the design subject to protection under this 
chapter, enforce the rights in that design under this chapter. 
"(2) The owner of a design may seek judicial review under 
this section if— 
"(A) the owner has previously duly filed and prosecuted 
to final refusal an application in proper form for registration 
of the design; 
112 STAT. 2914 
PUBLIC LAW 105-304—OCT. 28, 1998 
"(B) the owner causes a copy of the complaint in the action 
to be dehvered to the Administrator within 10 days after the 
commencement of the action; and 
"(C) the defendant has committed acts in respect to the 
design which would constitute infringement with respect to 
a design protected under this chapter. 
"(c) ADMINISTRATOR AS PARTY TO ACTION.—^The Administrator 
may, at the Administrator's option, become a party to the action 
with respect to the issue of registrability of the design claim by 
entering an appearance within 60 days after being served with 
the complaint, but the failure of the Administrator to become a 
party shall not deprive the court of jurisdiction to determine that 
issue. 
"(d) USE OF ARBITRATION TO RESOLVE DISPUTE.—^The parties 
to an infringement dispute under this chapter, within such time 
as may be specified by the Administrator by regulation, may deter-
mine the dispute, or any aspect of the dispute, by arbitration. 
Arbitration shall be governed by title 9. The parties shall give 
notice of any arbitration award to the Administrator, and such 
award shall, as between the parties to the arbitration, be dispositive 
of the issues to which it relates. The arbitration award shall be 
unenforceable until such notice is given. Nothing in this subsection 
shall preclude the Administrator from determining whether a design 
is subject to registration in a cancellation proceeding under section 
1313(c). 
§ 1322. Injunctions 
"(a) IN GENERAL.—A court having jurisdiction over actions 
under this chapter may grant injunctions in accordance with the 
principles of equity to prevent infringement of a design under 
this chapter, including, in its discretion, prompt relief by temporary 
restraining orders and preliminary injunctions. 
"(b) 
DAMAGES 
FOR 
INJUNCTIVE 
RELIEF 
WRONGFULLY 
OBTAINED.—^A seller or distributor who suffers damage by reason 
of injunctive relief wrongfully obtained under this section has a 
cause of action against the applicant for such injunctive relief 
and may recover such relief as may be appropriate, including dam-
ages for lost profits, cost of materials, loss of good will, and punitive 
damages in instances where the injunctive relief was sought in 
bad faith, and, unless the court finds extenuating circumstances, 
reasonable attorney's fees. 
*'§ 1323. Recovery for inMngement 
"(a) DAMAGES.—^Upon a finding for the claimant in an action 
for infringement under this chapter, the court shall award the 
claimant damages adequate to compensate for the infringement. 
In addition, the court may increase the damages to such amount, 
not exceeding $50,000 or $1 per copy, whichever is greater, as 
the court determines to be just. The damages awarded shall con-
stitute compensation and not a penalty. The court may receive 
expert testimony as an aid to the determination of damages. 
"(b) INFRINGER'S PROFITS.—As an alternative to the remedies 
provided in subsection (a), the court may award the claimant the 
infringer's profits resulting from the sale of the copies if the court 
finds that the infringer's sales are reasonably related to the use 
of the claimant's design. In such a case, the claimant shall be 
required to prove only the amount of the infringer's sales and 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2915 
the infringer shall be required to prove its expenses against such 
sales. 
"(c) STATUTE OF LIMITATIONS.—No recovery under subsection 
(a) or (b) shall be had for any infringement committed more than 
3 years before the date on which the complaint is filed. 
"(d) ATTORNEY'S FEES.—In an action for infringement under 
this chapter, the court may award reasonable attorney's fees to 
the prevailing party. 
"(e) 
DISPOSITION OF INFRINGING AND OTHER ARTICLES.—The 
court may order that all infringing articles, and any plates, molds, 
patterns, models, or other means specifically adapted for making 
the articles, be delivered up for destruction or other disposition 
as the court may direct. 
"§ 1324. Power of court over registration 
"In any action involving the protection of a design under this 
chapter, the court, when appropriate, may order registration of 
a design under this chapter or the cancellation of such a registra-
tion. Any such order shall be certified by the court to the Adminis-
trator, who shall make an appropriate entry upon the record. 
"§1325. Liability for action on registration 
fraudulently 
obtained 
"Any person who brings an action for infringement knowing 
that registration of the design was obtained by a false or fraudulent 
representation materially affecting the rights under this chapter, 
shall be liable in the sum of $10,000, or such part of that amount 
as the court may determine. That amount shall be to compensate 
the defendant and shall be charged against the plaintiff and paid 
to the defendant, in addition to such costs and attorney's fees 
of the defendant as may be assessed by the court. 
"§ 1326. Penalty for false marking 
"(a) IN GENERAL.—^Whoever, for the purpose of deceiving the 
public, marks upon, applies to, or uses in advertising in connection 
with an article made, used, distributed, or sold, a design which 
is not protected under this chapter, a design notice specified in 
section 1306, or any other words or symbols importing that the 
design is protected under this chapter, knowing that the design 
is not so protected, shall pay a civil fine of not more than $500 
for each such offense. 
"(b) SUIT BY PRIVATE PERSONS.^Any person may sue for the 
penalty established by subsection (a), in which event one-half of 
the penalty shall be awarded to the person suing and the remainder 
shall be awarded to the United States. 
"§ 1327. Penalty for false representation 
"Whoever knowingly makes a false representation materially 
affecting the rights obtainable under this chapter for the purpose 
of obtaining registration of a design under this chapter shall pay 
a penalty of not less than $500 and not more than $1,000, and 
any rights or privileges that individual may have in the design 
under this chapter shall be forfeited. 
112 STAT. 2916 
PUBLIC LAW 105-304—OCT. 28, 1998 
"§ 1328. Enforcement by Treasury and Postal Service 
"(a) REGULATIONS.—^The Secretary of the Treasury and the 
United States Postal Service shall separately or jointly issue regula-
tions for the enforcement of the rights set forth in section 1308 
with respect to importation. Such regulations may require, as a 
condition for the exclusion of articles from the United States, that 
the person seeking exclusion take any one or more of the following 
actions: 
"(1) Obtain a court order enjoining, or an order of the 
International Trade Commission under section 337 of the Tariff 
Act of 1930 excluding, importation of the articles. 
"(2) Furnish proof that the design involved is protected 
under this chapter and that the importation of the articles 
would infringe the rights in the design under this chapter. 
"(3) Post a surety bond for any injury that may result 
if the detention or exclusion of the articles proves to be unjusti-
fied. 
"(b) SEIZURE AND FORFEITURE.—^Articles imported in violation 
of the rights set forth in section 1308 are subject to seizure and 
forfeiture in the same manner as property imported in violation 
of the customs laws. Any such forfeited articles shall be destroyed 
as directed by the Secretary of the Treasury or the court, as the 
case may be, except that the articles may be returned to the 
country of export whenever it is shown to the satisfaction of the 
Secretary of the Treasury that the importer had no reasonable 
grounds for believing that his or her acts constituted a violation 
of the law. 
'*§ 1329. Relation to design patent law 
"The issuance of a design patent under title 35, United States 
Code, for an original design for an article of manufacture shall 
terminate any protection of the original design under this chapter. 
'*§ 1330. Common law and other rights unaffected 
"Nothing in this chapter shall annul or limit— 
"(1) common law or other rights or remedies, if any, avail-
able to or held by any person with respect to a design which 
has not been registered under this chapter; or 
"(2) any right under the trademark laws or any right 
protected against unfair competition. 
*
*
§ 1331. Administrator; Office of the Administrator 
"In this chapter, the Administrator' is the Register of Copy-
rights, and the 'Office of the Administrator' and the 'Ofiice' refer 
to the Copyright Office of the Library of Congress. 
"§ 1332. No retroactive effect 
"Protection under this chapter shall not be available for any 
design that has been made public under section 1310(b) before 
the effective date of this chapter.". 
SEC. 503. CONFORMING AMENDMENTS. 
(a) TABLE OF CHAPTERS.—The table of chapters for title 17, 
United States Code, is amended by adding at the end the following: 
"13. Protection of Original Designs 
1301". 
PUBLIC LAW 105-304—OCT. 28, 1998 
112 STAT. 2917 
(b) JURISDICTION OF DISTRICT COURTS OVER DESIGN ACTIONS.— 
(1) Section 1338(c) of title 28, United States Code, is amended 
by inserting ", and to exclusive rights in designs under chapter 
13 of title 17," after "title 17". 
(2)(A) The section heading for section 1338 of title 28, United 
States Code, is amended by inserting "designs," after "mask 
works,". 
(B) The item relating to section 1338 in the table of sections 
at the beginning of chapter 85 of title 28, United States Code, 
is amended by inserting "designs," after "mask works,". 
(c) PLACE FOR BRINGING DESIGN ACTIONS.—(1) Section 1400(a) 
of title 28, United States Code, is amended by inserting "or designs" 
after "mask works". 
(2) The section heading for section 1400 of title 28, United 
States Code, is amended to read as follows: 
"Patents and copyrights, mask works, and designs*'. 
(3) The item relating to section 1400 in the table of sections 
at the beginning of chapter 87 of title 28, United States Code, 
is amended to read as follows: 
"1400. Patents and copyrights, mask works, and designs.". 
(d) ACTIONS AGAINST THE UNITED STATES.—Section 1498(e) of 
title 28, United States Code, is amended by inserting ", and to 
exclusive rights in designs under chapter 13 of title 17," after 
"title 17". 
SEC. 504. JOINT STUDY OF THE EFFECT OF THIS TITLE. 
17 USC 1301 
(a) IN GENERAL.—^Not later than 1 year after the date of the Deadlines, 
enactment of this Act, and not later than 2 years after such date Reports, 
of enactment, the Register of Copyrights and the Commissioner 
of Patents and Trademarks shall submit to the Committees on 
the Judiciary of the Senate and the House of Representatives a 
joint report evaluating the effect of the amendments made by this 
title. 
(b) ELEMENTS FOR CONSIDERATION.—In carrying out subsection 
(a), the Register of Copyrights and the Commissioner of Patents 
and Trademarks shall consider— 
(1) the extent to which the amendments made by this 
title has been effective in suppressing infringement of the 
design of vessel hulls; 
(2) the extent to which the registration provided for in 
chapter 13 of title 17, United States Code, as added by this 
title, has been utilized; 
(3) the extent to which the creation of new designs of 
vessel hulls have been encouraged by the amendments made 
by this title; 
(4) the effect, if any, of the amendments made by this 
title on the price of vessels with hulls protected under such 
amendments; and 
(5) such other considerations as the Register and the 
Commissioner may deem relevant to accomplish the purposes 
of the evaluation conducted under subsection (a). 
112 STAT. 2918 
PUBLIC LAW 105-304—OCT. 28, 1998 
17 u s e 1301 
SEC. 505. EFFECTIVE DATE. 
°° ^' 
The amendments made by sections 502 and 503 shall take 
effect on the date of the enactment of this Act and shall remain 
in effect until the end of the 2-year period beginning on such 
date of enactment. No cause of action based on chapter 13 of 
title 17, United States Code, as added by this title, may be filed 
after the end of that 2-year period. 
Approved October 28, 1998. 
LEGISLATIVE HISTORY—H.R. 2281 (S. 2037): 
HOUSE REPORTS: Nos. 105-551, Pt. 1 (Comm. on the Judiciary) and Pt. 2 (Comm. 
on Commerce) and 105-796 (Comm. of Commerce). 
SENATE REPORTS: No. 105-190 accompanying S. 2037 (Comm. on the Judiciary). 
CONGRESSIONAL RECORD, Vol. 144 (1998): 
Aug. 4, considered and passed House. 
Sept. 17, considered and passed Senate, amended, in lieu of S. 2037. 
Oct. 8, Senate agreed to conference report. 
Oct. 12, House agreed to conference report. 
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 34 (1998): 
Oct. 28, Presidential statement.