`Digital Millennium Copyright Act'
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. 2. Table of contents.
TITLE I--WIPO TREATIES IMPLEMENTATION
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. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.
TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
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. 502. Protection of certain original designs.
Sec. 503. Conforming amendments.
Sec. 504. Joint study of the effect of this title.
Sec. 505. Effective date.
TITLE I--WIPO TREATIES IMPLEMENTATION
SEC. 101. SHORT TITLE.
This title may be cited as the `WIPO Copyright and Performances 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';
(i) in subparagraph (B) by striking `nation or nations adhering to
the Berne Convention' and inserting `treaty party or
parties';
(ii) in subparagraph (C) by striking `does not adhere to the Berne
Convention' and inserting `is not a treaty party'; and
(iii) in subparagraph (D) by striking `does not adhere to the Berne
Convention' and inserting `is not a treaty party'; and
(C) in the matter following paragraph (3) by striking `For the
purposes of section 411, the `country of origin' of any other Berne
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;
`(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:
`The `WIPO Copyright Treaty' is the WIPO Copyright Treaty concluded at
Geneva, Switzerland, on December 20, 1996.';
(7) by inserting after the definition of `The `WIPO Copyright Treaty'
the following:
`The `WIPO Performances and Phonograms Treaty' is the WIPO Performances
and Phonograms Treaty concluded at Geneva, Switzerland, on 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 Agreements Act.'.
(b) SUBJECT MATTER OF COPYRIGHT; NATIONAL ORIGIN- Section 104 of title 17,
United States Code, is amended--
(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
`(E) subject to a Presidential proclamation under subsection
(g).';
(2) by amending paragraph (3) to read as follows:
`(3) The term `eligible country' means a nation, other than the United
States, that--
`(A) becomes a WTO member country after the date of the 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).';
(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 recording.';
(4) in paragraph (8)(B)(i)--
(A) by inserting `of which' before `the majority'; and
(B) by striking `of eligible countries'; and
(5) by striking paragraph (9).
(d) REGISTRATION AND INFRINGEMENT ACTIONS- Section 411(a) of title 17,
United States Code, is amended in the first sentence--
(1) by striking `actions for infringement of copyright in Berne
Convention works whose country of origin is not the United States and';
and
(2) by inserting `United States' after `no action for infringement of
the copyright in any'.
(e) STATUTE OF LIMITATIONS- Section 507(a) of title 17, United State Code,
is amended by striking `No' and inserting `Except as expressly provided
otherwise in this title, no'.
SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND 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.
`1204. Criminal offenses and penalties.
`Sec. 1201. Circumvention of copyright protection systems
`(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES- (1)(A)
No person shall circumvent a technological measure that effectively controls
access to a work protected under this title. The prohibition contained in the
preceding sentence shall take effect at the end of the 2-year period beginning
on the date of the enactment of this chapter.
`(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 Congress, 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 appropriate.
`(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 persons who are users of a
copyrighted work are, or are likely to be, adversely affected, and the
prohibition contained in subparagraph (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 subparagraph (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 controls 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
`(C) is marketed by that person or another acting in concert with that
person with that person's knowledge for use in circumventing a technological
measure that effectively controls access to a work protected under this
title.
`(3) As used in this subsection--
`(A) to `circumvent a technological measure' means to descramble a
scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass,
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 treatment, with the authority
of the copyright owner, to gain access to the work.
`(b) ADDITIONAL VIOLATIONS- (1) No person shall manufacture, import, offer
to the public, provide, or 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 technological measure that
effectively protects a right of a copyright owner under this title in a work
or a portion thereof; or
`(C) is marketed by that person or another acting in concert with that
person with that person's knowledge for use in 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.
`(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 prohibitions of subsection (a)(2) or (b)(1).
`(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 EDUCATIONAL
INSTITUTIONS- (1) A nonprofit library, archives, or educational institution
which gains access to a commercially exploited copyrighted work solely in
order to make a good faith determination of whether to acquire a copy of that
work for the sole purpose of engaging in conduct permitted under this title
shall not be in violation of subsection (a)(1)(A). A copy of a work to which
access has been gained under this paragraph--
`(A) may not be retained longer than necessary to make such good faith
determination; and
`(B) may not be used for any other purpose.
`(2) The exemption made available under paragraph (1) shall only apply
with respect to a work when an 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 manufacture, 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 exemption under
this subsection, the collections of that library or archives shall be--
`(A) open to the public; or
`(B) available not only to researchers affiliated with the library or
archives or with the institution of which it is a part, but also to other
persons doing research in a specialized field.
`(e) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERNMENT ACTIVITIES- This
section does not prohibit any lawfully authorized investigative, protective,
information security, or intelligence activity of an officer, agent, or
employee of the United States, a State, or a political subdivision of a State,
or a person acting pursuant to a contract with the United States, a State, or
a political subdivision of a State. For purposes of this subsection, the term
`information security' means activities carried out in order to identify and
address the vulnerabilities of a government computer, computer system, or
computer network.
`(f) REVERSE ENGINEERING- (1) Notwithstanding the provisions 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 particular portion of that program for the sole purpose
of identifying and analyzing those elements of the program that are necessary
to achieve interoperability of an independently created computer program with
other programs, and that have not previously been readily available to the
person engaging in the circumvention, to the extent any 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 circumvent a
technological measure, or to circumvent protection afforded by a technological
measure, in order to enable the identification and analysis under paragraph
(1), or for the purpose of enabling interoperability of an independently
created computer program 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 independently 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 scrambling and
descrambling of information using mathematical formulas or
algorithms.
`(2) PERMISSIBLE ACTS OF ENCRYPTION RESEARCH- Notwithstanding 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 provisions 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 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 ACTIVITIES- 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 circumvent 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;
`(B) in the normal course of its operation, the technological measure,
or the work it protects, collects or disseminates personally identifying
information about the person who seeks to gain access to the work
protected, without providing conspicuous notice of such collection or
dissemination to such person, and without providing such person with the
capability to prevent or restrict such collection or
dissemination;
`(C) the act of circumvention has the sole effect of identifying and
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 person 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 disseminate personally identifying information and that is
disclosed to a user as not having or using such capability.
`(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 testing, investigating, or correcting,
a security flaw or vulnerability, with the authorization of the owner or
operator of such computer, computer system, or computer network.
`(2) PERMISSIBLE ACTS OF SECURITY TESTING- Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation 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
provisions 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 violation of privacy or breach of security.
`(4) USE OF TECHNOLOGICAL MEANS FOR SECURITY TESTING- 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 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 enactment 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 technology in the initial model of any such recorder manufactured
after the date of the enactment of this chapter, 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 transmissions;
`(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 subparagraph (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 technology 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 violation 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 portions of a television program, motion picture, or other form of
audiovisual work.
`(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, exhibits 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 format', `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 consumer 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.
`Sec. 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 management
information that is false.
`(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION- No person
shall, without the authority of the copyright owner or the law--
`(1) intentionally remove or alter any copyright management
information,
`(2) distribute or import for distribution copyright management
information knowing that the copyright management information has been
removed or altered without authority of the copyright owner or the law,
or
`(3) distribute, import for distribution, or publicly perform works,
copies of works, or phonorecords, knowing that copyright management
information has been removed or altered without 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.
`(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 information about a user of a work or of a copy,
phonorecord, performance, or display of a work:
`(1) The title and other information identifying the work, including the
information set forth on a notice of copyright.
`(2) The name of, and other identifying 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 information 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 Copyrights may not require the
provision of any information concerning the user of a copyrighted
work.
`(d) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERNMENT ACTIVITIES- This
section does not prohibit any lawfully authorized investigative, protective,
information security, or intelligence activity of an officer, agent, or
employee of the United States, a State, or a political subdivision of a State,
or a person acting pursuant to a contract with the United States, a State, or
a political subdivision of a State. For purposes of this subsection, the term
`information security' means activities carried out in order to identify and
address the vulnerabilities of a government computer, 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 violation 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 infringement of a right under this
title.
`(2) DIGITAL TRANSMISSIONS-
`(A) If a digital transmission standard for the placement 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 stations or cable systems and copyright owners
of a category of works that are intended for public performance by such
stations or systems, a person identified in paragraph (1) shall not be
liable for a violation of subsection (b) with respect to the particular
copyright management information addressed by such standard if--
`(i) the placement of such 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 placement of copyright management
information for a category or works, a person identified in paragraph (1)
shall not be liable for a violation of subsection (b) with respect to such
copyright management information, if the activity that constitutes such
violation is not intended to induce, enable, facilitate, or conceal
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).
`Sec. 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--
`(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).
`(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 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.
`Sec. 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 EDUCATIONAL
INSTITUTION- Subsection (a) shall not apply to a nonprofit 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.
`Sec. 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 relating to chapter 11 the
following:
1201'.
SEC. 104. EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC
COMMERCE AND TECHNOLOGICAL 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 Communications 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 technology on the operation of
sections 109 and 117 of title 17, United States Code; and
(2) the relationship between existing and emergent technology 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), 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 AGREEMENTS- (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 agreement'
contained in section 101 of title 17, United States Code, as amended by
section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(6) of this Act.
(C) Subparagraph (C) of section 104A(h)(1) of title 17, United States
Code, as amended by section 102(c)(1) of this Act.
(D) Subparagraph (C) of section 104A(h)(3) of title 17, United States
Code, as amended by section 102(c)(2) of this Act.
(2) The following shall take effect upon the entry into force of the WIPO
Performances and Phonograms Treaty with respect to the United States:
(A) Paragraph (6) of the definition of `international agreement'
contained in section 101 of title 17, United States Code, as amended by
section 102(a)(4) of this Act.
(B) The amendment made by section 102(a)(7) of this Act.
(C) The amendment made by section 102(b)(2) of this Act.
(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 INFRINGEMENT.
(a) IN GENERAL- Chapter 5 of title 17, United States Code, is amended by
adding after section 511 the following new section:
`Sec. 512. Limitations on liability relating to material online
`(a) TRANSITORY DIGITAL NETWORK COMMUNICATIONS- 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 provider's transmitting, routing, or providing connections for,
material through a system 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 maintained on the system or
network in a manner ordinarily accessible to anyone other than anticipated
recipients, and no such copy is maintained on the system or network in a
manner ordinarily accessible to such anticipated recipients for a longer
period than is reasonably necessary for the transmission, routing, or
provision of connections; and
`(5) the material is transmitted through the system or network without
modification of its content.
`(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 network to a person other than the
person described in subparagraph (A) at the direction of that other
person; and
`(C) the storage is carried out through an automatic technical process
for the purpose of making the material available to users of the system or
network who, after the material is 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 with a generally accepted industry standard data
communications protocol for the system or network through which that
person makes the material available, except that this 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 material 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 provider's system or
network other than the information that would have been available to the
person described in paragraph (1)(A) if the subsequent users had gained
access to the material directly from that person;
`(D) if the person described in paragraph (1)(A) has in effect a
condition that a person 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 originating site or that
access to the material on the originating 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 copyright by reason of the storage at
the direction of a user of material that resides on a system or network
controlled or operated by or for the service provider, if the service
provider--
`(A)(i) does not have actual knowledge that the material or 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 activity 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 attributable to the
infringing activity, in a case in which the service provider has the right
and ability to control such activity; and
`(C) upon notification of claimed 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 established in this
subsection apply to a service provider only if the service provider has
designated an agent to receive notifications 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 activity and that is to be
removed or access to which is to be disabled, and information reasonably
sufficient to permit the service provider to locate the
material.
`(iv) Information reasonably sufficient to permit the service
provider to contact the complaining party, such as an address, telephone
number, and, if available, an electronic mail address at which the
complaining party may be contacted.
`(v) A statement that the complaining party has a good faith belief
that use of the material in the manner complained of is not authorized
by the copyright owner, 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
allegedly infringed.
`(B)(i) Subject to clause (ii), a notification from a copyright 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 considered 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 reasonable steps to assist
in the receipt of notification that substantially complies with all the
provisions of subparagraph (A).
`(d) INFORMATION LOCATION TOOLS- A service provider shall not be liable
for monetary relief, or, except as provided in subsection (j), for injunctive
or other equitable relief, for infringement of copyright by reason of the
provider referring or linking users to an online location containing
infringing material or infringing activity, by using information location
tools, including a directory, index, reference, pointer, or hypertext link, if
the service provider--
`(1)(A) does not have actual knowledge that the material or activity is
infringing;
`(B) in the absence of such actual knowledge, is not aware of facts or
circumstances from which infringing activity is apparent; or
`(C) upon obtaining such knowledge or 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 member or graduate student who is an employee of
such institution 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 infringing 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 instructional 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 subsection (c)(3) of
claimed infringement by such faculty member or graduate student, and such
notifications of claimed infringement 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 materially misrepresents
under this section--
`(1) that material or activity is infringing, or
`(2) that material or activity was removed or disabled by mistake or
misidentification,
shall be liable for any damages, including costs and 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 infringing, 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 material 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 service
provider--
`(A) takes reasonable steps promptly to notify the subscriber that it
has removed or disabled access to the material;
`(B) upon receipt of a counter notification described in paragraph
(3), promptly provides the person who provided the notification under
subsection (c)(1)(C) with a copy of the counter notification, and informs
that person that it will replace the removed material or cease disabling
access to it in 10 business days; and
`(C) replaces the removed material and ceases disabling access to it
not less than 10, nor more than 14, business days following 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 activity relating to the material
on the service provider's system or network.
`(3) CONTENTS OF COUNTER NOTIFICATION- To be effective under this
subsection, a counter 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 subsection (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 be used for the purpose of protecting
rights under this title.
`(3) CONTENTS OF SUBPOENA- The subpoena shall authorize 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 subsection (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, notwithstanding
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 standard 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 consensus of copyright
owners and service providers in an open, fair, voluntary, multi-industry
standards process;
`(B) are available to any person on reasonable and nondiscriminatory
terms; and
`(C) do not impose substantial costs on service providers or
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:
`(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 terminating 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 relevant 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 infringement;
`(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 to appear are provided, except for
orders ensuring the preservation of evidence or other orders having no
material adverse effect on the operation of the service provider's
communications network.
`(1) SERVICE PROVIDER- (A) As used in subsection (a), the term `service
provider' means an entity offering the transmission, 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 affirmatively 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 disabling 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 Competition Assurance
Act'.
SEC. 302. LIMITATIONS ON EXCLUSIVE RIGHTS; COMPUTER PROGRAMS.
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 completed; and
`(2) with respect to any computer program or part thereof that is not
necessary for that machine to be activated, such program or part thereof is
not accessed or used other than to make such new copy by virtue of the
activation of the machine.
`(d) DEFINITIONS- For purposes of this section--
`(1) the `maintenance' of a machine is the servicing of the machine in
order to make it work in accordance with its original specifications and any
changes to those specifications authorized for that machine; and
`(2) the `repair' of a machine is the restoring of the machine to the
state of working in accordance with its original specifications and any
changes to those specifications authorized for that machine.'.
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--
(1) by redesignating subsections (b) through (e) as subsections (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 following 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 departments and
agencies and the Judiciary on national and international issues relating to
copyright, other matters arising under this title, and related
matters.
`(3) Participate in meetings of international intergovernmental
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
organizations.
`(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 subparagraphs (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 phonorecord 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 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 recommendations on how to promote distance education through digital
technologies, 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 subsection (a), the
Register of Copyrights shall consider--
(1) the need for an exemption from exclusive rights of copyright owners
for distance education through digital networks;
(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 interactive digital networks
should be considered in assessing eligibility for any distance education
exemption; and
(8) such other issues relating to distance education through interactive
digital networks that the Register considers appropriate.
SEC. 404. EXEMPTION FOR LIBRARIES AND ARCHIVES.
Section 108 of title 17, United States Code, is amended--
(A) by striking `Notwithstanding' and inserting `Except as otherwise
provided in this title and notwithstanding';
(B) by inserting after `no more than one copy or phonorecord 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 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';
(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
(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 possession of such copy.'; and
(E) by adding at the end the following:
`For purposes of this subsection, a format shall be considered obsolete if
the machine or device necessary to render perceptible a work stored in that
format is no longer 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- Section 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--
`(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 automatically and
intentionally cause any device receiving the transmission to switch from
one program channel to another; and
`(iii) except as provided in section 1002(e), the transmission of the
sound recording is accompanied, if technically 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 transmission 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 retransmission of a broadcast transmission if the
retransmission 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 transmission, unless--
`(I) the broadcast station makes broadcast
transmissions--
`(aa) in digital format that regularly exceed the sound recording
performance complement; or
`(bb) in analog format, a substantial portion 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 provided in this
clause;
`(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
recordings 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 transmitting 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
facilitated 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 published 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 available 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 transmitted
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
recording that the broadcast station makes broadcast transmissions
that regularly violate such requirement;
`(iv) the transmitting entity does not knowingly perform the sound
recording, as part of a service that offers transmissions of visual
images contemporaneously with transmissions of sound recordings, in a
manner that is likely to cause confusion, to cause mistake, 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 recording 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 transmitting
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
recording, and the transmitting entity makes the transmission from a
phonorecord lawfully made under the authority of the copyright owner,
except that the requirement of this clause shall not apply to 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 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 transmitted by the
transmitting entity without imposing 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 Commission, on or before July 31, 1998, to the extent
that such service has designed, developed, or made commitments to
procure equipment or technology that is not compatible with such
technical measures before such technical measures are widely adopted by
sound recording 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 receiving 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';
(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 satellite digital audio radio services may submit to the
Librarian of Congress licenses covering such subscription transmissions
with respect to such sound recordings.'; 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 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 performing 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 preexisting subscription services, or any
preexisting satellite digital audio radio services indicating that a new
type of subscription digital audio transmission service on which sound
recordings are performed is or is about to become operational;
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 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) 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 aft