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H. R. 2281
One Hundred Fifth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twenty-seventh day of January, one thousand nine hundred and ninety-eight
An Act
To amend title 17, United States Code, to implement the World Intellectual Property
Organization Copyright Treaty and Performances and Phonograms Treaty, and
for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Digital Millennium Copyright
Act''.
SEC. 2. TABLE OF CONTENTS.
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I-WIPO 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 LIABILITY LIMITATION
Sec. 201. Short title.
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.
TITLE III-COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
Sec. 301. Short title.
Sec. 302. Limitations on exclusive rights; computer programs.
TITLE IV-MISCELLANEOUS PROVISIONS
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.
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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 Against
Unauthorized Duplication of Their Phonograms, concluded at
Geneva, 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:
H. R. 2281-3
``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 copyright treaty to which the United States
is also a party'' and inserting ``treaty party'';
(B) in paragraph (2) by striking ``party to the Universal
Copyright Convention'' and inserting ``treaty party'';
(C) by redesignating paragraph (5) as paragraph (6);
(D) by redesignating paragraph (3) as paragraph (5)
and inserting it after paragraph (4);
(E) by inserting after paragraph (2) the following:
``(3) the work is a sound recording that was first fixed
in a treaty party; or'';
(F) in paragraph (4) by striking ``Berne Convention
work'' and 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
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``(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
H. R. 2281-5
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).
``(C) During the 2-year period described in subparagraph (A),
and during each succeeding 3-year period, the Librarian of Con-
gress, upon the recommendation of the Register of Copyrights,
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 copyrighted 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.
``(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
H. R. 2281-6
``(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).
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``(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
H. R. 2281-8
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
H. R. 2281-9
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).
``(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) encryption research and the development of
encryption technology;
``(B) the adequacy and effectiveness of technological
measures designed to protect copyrighted works; and
``(C) protection of copyright owners against the
unauthorized access to their encrypted copyrighted works.
The report shall include legislative recommendations, if any.
``(h) 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;
H. R. 2281-10
``(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
H. R. 2281-11
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.-
``(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 control 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.
``(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,
H. R. 2281-12
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 copying-
``(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.
H. R. 2281-13
``(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 copyright 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 copyright manage-
ment information,
``(2) distribute or import for distribution copyright 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.
H. R. 2281-14
``(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 identifying information about, a performer whose
performance is fixed in a work other than an audiovisual work.
``(5) With the exception of public performances of works
by radio and television broadcast stations, in the case of an
audiovisual work, the name of, and other identifying 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 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.
``(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
H. R. 2281-15
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 `broadcast station' has the meaning given
that term in section 3 of the Communications Act of 1934
(47 U.S.C. 153); and
``(B) the term `cable system' has the meaning given
that term in 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-
H. R. 2281-16
``(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
H. R. 2281-17
the court finds, that the violator was not aware and had
no reason to believe that its acts constituted a violation.
``(B) NONPROFIT LIBRARY, ARCHIVES, OR EDUCATIONAL
INSTITUTIONS.-In the case of a nonprofit library, archives,
or educational institution, the court shall remit damages
in any case in which the library, archives, or 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''.
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.
(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),
H. R. 2281-18
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)(1) of title 17,
United States Code, as amended by section 102(c)(1) of this
Act. (D) Subparagraph (C) of section 104A(h)(3) of title 17,
United States Code, as amended by section 102(c)(2) of this
Act.
(2) The following shall take effect upon the entry into force
of the WIPO Performances and Phonograms Treaty with respect
to the United States:
(A) Paragraph (6) of the definition of ``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)(1) of title 17,
United States Code, as amended by section 102(c)(1) of this
Act. (E) Subparagraph (D) of section 104A(h)(3) of title 17,
United States Code, as amended by section 102(c)(2) of this
Act. (F) The amendments made by section 102(c)(3) of this
Act.
TITLE II-ONLINE COPYRIGHT
INFRINGEMENT LIABILITY LIMITATION
SEC. 201. SHORT TITLE.
This title may be cited as the ``Online Copyright 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,
H. R. 2281-19
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-
``(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
H. R. 2281-20
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 payment of a fee or provision of a password or other
information, the service provider permits access to the
stored material in significant part only to users of its
system or network that have 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
H. R. 2281-21
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.
The Register of Copyrights shall maintain a current directory
of agents available to the public for inspection, including
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.
H. R. 2281-22
``(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 from 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
H. R. 2281-23
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.
``(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)(1), 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;
H. R. 2281-24
``(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
H. R. 2281-25
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 accompanying 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.
``( 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:
H. R. 2281-26
``(1) SCOPE OF RELIEF.-(A) With respect to conduct other
than that which qualifies for the limitation on remedies set
forth in subsection (a), the court may grant injunctive relief
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-
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
H. R. 2281-27
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 section, the term
`monetary relief' means damages, costs, attorneys' fees, and
any other form of monetary payment.
``(l) 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 applying 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.''.
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
SEC. 301. SHORT TITLE.
This title may be cited as the ``Computer Maintenance Competi-
tion Assurance Act''.
H. R. 2281-28
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-
H. R. 2281-29
(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
H. R. 2281-30
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
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
H. R. 2281-31
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-
H. R. 2281-32
``(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;
H. R. 2281-33
``(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
H. R. 2281-34
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 copyright 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
H. R. 2281-35
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
H. R. 2281-36
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
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
``(II) 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
H. R. 2281-37
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
H. R. 2281-38
``(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
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;
H. R. 2281-39
(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
H. R. 2281-40
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
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,
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)(1)(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)(1)(C)(iv).
``(C) Unless preserved exclusively for purposes of archival
preservation, the phonorecord is destroyed within 6 months
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