NOTE: PROVISIONS RELATING TO THE SUBJECT

S 1146 MATTER OF THIS BILL WERE ENACTED IN H.R. 2281

105th CONGRESS (P.L. 105-304).

1st Session

To amend title 17, United States Code, to provide limitations on

copyright liability relating to material on-line, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

September 3, 1997

Mr. ASHCROFT introduced the following bill; which was read twice

and referred to the Committee on the Judiciary

A BILL

To amend title 17, United States Code, to provide limitations on

copyright liability relating to material on-line, and for other

purposes.

[Italic->] Be it enacted by the Senate and House of

Representatives of the United States of America in Congress

assembled, [<-Italic]

SECTION 1. SHORT TITLE.

This Act may be cited as the `Digital Copyright Clarification and

Technology Education Act of 1997'.

TITLE 1--DIGITAL COPYRIGHT CLARIFICATION

SEC. 101. PURPOSES.

The purposes of this Act are--

(1) to clarify the application of copyright law in the unique

environment of Internet and on-line communication;

(2) to foster the continued growth and development of the

Internet as a means of communication and commerce, including

the lawful distribution of intellectual property;

(3) to protect the rights of copyright owners in the digital

environment;

(4) to clarify that providing network services and facilities

with respect to the transmission of electronic communications

of another person does not result in liability under the

Copyright Act;

(5) to clarify that Internet and on-line service providers

are not liable for third-party copyright infringements unless

they have received notice in compliance with this Act of the

infringing material and have a reasonable opportunity to limit

the third-party infringement; and

(6) to create incentives for the rapid elimination of

infringing material residing on an electronic communications

system or network without litigation.

SEC. 102. CLARIFICATION OF LIABILITY.

(a) IN GENERAL- Chapter 5 of title 17, United States Code, is

amended by adding after section 511 the following new section:

`Sec. 512. Liability relating to material on the Internet and on-line

`(a) Material Being Transmitted Through an Electronic

Communications System or Network-

`(1) NETWORK SERVICES WITH RESPECT TO THE TRANSMISSION OF

ELECTRONIC COMMUNICATIONS- A person shall not be liable for

direct, vicarious or contributory infringement of copyright

arising out of providing electronic communications network

services or facilities with respect to a copyright infringement

by a user. A person shall be considered to provide `network

services and facilities' when such person transmits, routes or

provides connections for material on behalf of a user over an

electronic communications system or network controlled or

operated by or for the person, including intermediate and

transient storage, the processing of information, and the

provision of facilities therefor, if--

`(A) the provision of services is for the purpose of

managing, controlling or operating a communications system

or network, supplying local access, local exchange,

telephone toll, trunk line, private line, or backbone

services, including network components or functions

necessary to the transmission of material contained in

electronic communications carried over those services; or

`(B) the transmission of material over the system or

network on behalf of a user does not involve the generation

or material alteration of content by the person.

`(2) PRIVATE AND REAL-TIME COMMUNICATION SERVICES- A person

shall not be liable for direct, vicarious or contributory

infringement of copyright arising from supplying to another--

`(A) a private electronic communication, including voice

messaging or electronic mail services, or any other

communication for which such person lacks either the

technical ability or authority under law to access or

disclose such communication to any third party in the

normal course of business; or

`(B) real-time communication formats, including chat

rooms, streamed data, or other virtually simultaneous

transmissions.

`(3) INFORMATION LOCATION TOOLS- No person shall be liable

for direct, vicarious or contributory infringement of copyright

arising out of supplying a user of network services or

facilities with--

`(A) a site-linking aid or directory, including a

hyperlink or index;

`(B) a navigational aid, including a search engine or

browser; or

`(C) the tools for the creation of a site-linking aid.

`(b) MATERIAL RESIDING ON A SYSTEM OR NETWORK-

`(1) COOPERATIVE PROCEDURE FOR EXPEDITIOUS RESPONSE TO CLAIMS

OF INFRINGEMENT- A person shall not be liable for direct,

vicarious or contributory infringement of copyright arising out

of the violation of any of the exclusive rights of the

copyright owner by another with respect to material residing on

a system or network used in conjunction with electronic

communications that is controlled or operated by or for the

person, unless upon receiving notice complying with paragraph

(b)(3), the person fails expeditiously to remove, disable, or

block access to the material to the extent technologically

feasible and economically reasonable for a period of ten days,

or until receiving a court order concerning the material,

whichever is less.

`(2) Paragraph (b)(1) shall apply where such person--

`(A) did not initiate the placement of the material on

the system or network;

`(B) did not determine the content of the material placed

on the system of network; and

`(C) did not contract for placement of the specific

material on the system or network by another person in

order to provide that content as part of the person's

service offering.

`(3) A person shall not be deemed to have notice that

material residing on a system or network used in conjunction

with electronic communications is infringing unless the person--

`(A) is in receipt of a notification that the particular

material is infringing. Such notification shall:

`(i) pertain only to allegedly infringing material

that resides on a system or network controlled or

operated by or for the person;

`(ii) be submitted in accordance with directions

displayed on the person's system or network indicating

a single place or person to which such notifications

shall be submitted;

`(iii) be signed, physically or electronically, by an

owner of an exclusive right that is allegedly

infringed, or by a person authorized to act on such

owner's behalf;

`(iv) provide an address, telephone number, and

electronic mail address, if available, at which the

complaining party may be contacted in a timely manner;

`(v) describe the material claimed to be infringing,

including information reasonably sufficient to permit

the person expeditiously to identify and locate the

material;

`(vi) provide reasonable proof of a certificate of

copyright registration for the material in question, a

filed application for such registration, or a court

order establishing that use of the material in the

manner complained of is not authorized by the copyright

owner or the law;

`(vii) contain a sworn statement that the information

in the notice is accurate, that the complaining party

is an owner of the exclusive right that is claimed to

be infringed or otherwise has the authority to enforce

the owner's rights under this title, and that the

complaining party has a good faith belief that the use

complained of is an infringement;

`(viii) be accompanied by any payment that the

Register of Copyrights determines is necessary to deter

frivolous and de minimis notices; and

`(B) A person who is an employee or agent of a nonprofit

educational institution, library or archives, acting within

the scope of his employment, or such an educational

institution, library or archives itself, shall not be

deemed to have notice under subparagraph (A) if that person

reasonably believed (i) that the allegedly infringing use

was a fair use under Sec. 10 or (ii) was otherwise lawful;

and

`(C) The Register of Copyrights may, by regulation,

establish guidelines identifying additional information to

be included in the notice and shall issue a standard

notice form in both electronic and hard copy formats, which

complies with this paragraph, but failure of a party to

provide any such additional information, or failure to use

any issued form, shall not invalidate the notice.

`(4) MISREPRESENTATIONS AND REDRESS FOR WRONGFUL

NOTIFICATIONS- Any person who materially misrepresents that

material on-line is infringing in a notice described in

paragraph (b)(3)(A), shall be liable in a civil action that may

be brought in an appropriate United States district court or

State court for statutory damages of not less than $1,000, and

any actual damages, including costs and attorneys' fees,

incurred by--

`(A) the actual copyright owner or the alleged infringer

arising out of the disabling or blocking of access to or

removal of such material; or

`(B) any person who relies upon such misrepresentation in

removing, disabling, or blocking access to the material

claimed to be infringing in such notice.

`(5) LIMITATION ON LIABILITY BASED UPON REMOVING, DISABLING,

OR BLOCKING ACCESS TO INFRINGING MATERIAL- A person shall not

be liable for any claim based on that person's removing,

disabling, or blocking access for a period of ten days, or

until the person receives a court order concerning the

material, whichever is less, to material residing on a system

or network used in conjunction with electronic communications

that is controlled or operated by or for that person in

response to notice pursuant to paragraph (b)(3)(A) that the

material is infringing, whether or not the material is

infringing.

`(6) OTHER DEFENSES NOT AFFECTED- A person's removing,

disabling, or blocking access to material residing on a system

or network used in conjunction with electronic communications

that is controlled or operated by or for that person, pursuant to

paragraph (1), or the failure to do so, shall not adversely bear

upon the consideration by a court of any other issue pertaining to

liability or remedy, including any other limitation on liability

established in paragraph (a), any other applicable defense, any

claim that the service provider's alleged conduct is not

infringing, or whether or not such conduct is willful or innocent.'.

(b) CONFORMING AMENDMENT- The table of sections for chapter 5 of

title 17, United States Code, is amended at the end the following:

`512. Liability relating to material on the Internet and on-line.'.

TITLE II--TECHNOLOGY FOR TEACHERS AND LIBRARIANS

SEC. 201. SHORT TITLE.

This title may be cited as the `Technology for Educators and

Children (TECh) Act'.

SEC. 202. FAIR USE.

(a) TRANSMISSIONS- The first sentence of section 107 of title 17,

United States Code, is amended by inserting after `or by any other

means specified in that section,' the following: `and by analog or

digital transmission,'.

(b) DETERMINATION- Section 107 of title 17, United States Code,

is amended by adding at the end thereof the following: `In making a

determination concerning fair use, no independent weight shall be

afforded to--

`(1) the means by which the work has been performed,

displayed or distributed under the authority of the copyright

owner; or

`(2) the application of an effective technological measure

(as defined under section 1201(c)) to the work.'.

SEC. 203. LIBRARY EXEMPTIONS.

Section 108 of title 17, United States Code, is amended--

(1) by striking `Notwithstanding' at the beginning of

subsection (a) and inserting: `Except as otherwise provided and

notwithstanding';

(2) by inserting after `copyright' in subsection (a)(3): `if

such notice appears on the copy or phonorecord that is

reproduced under the provisions of this section';

(3) in subsection (b) by--

(A) deleting `a copy or phonorecord' and inserting in

lieu thereof: `three copies or phonorecords'; and

(B) deleting `in facsimile form'; and

(4) in subsection (c) by--

(A) deleting `a copy or phonorecord' and inserting in

lieu thereof: `three copies or phonorecords';

(B) deleting `in facsimile form'; and

(C) inserting `or if the existing format in which the

work is stored has become obsolete,' after `stolen,'.

SEC. 204. DISTANCE EDUCATION.

(a) TITLE CHANGE- The title of section 117 of title 17, United

States Code, is amended to read as follows:

`Sec. 110. Limitations on exclusive rights: Exemption of certain

activities';

(b) PERFORMANCE, DISPLAY AND DISTRIBUTION OF A WORK- Section

110(2) of title 17, United States Code, is amended to read as

follows:

`(2) performance, display or distribution of a work, by or in

the course of an analog or digital transmission, if--

`(A) the performance, display or distribution is a

regular part of the systematic instructional activities of

a governmental body or a nonprofit educational institution;

`(B) the performance, display or distribution is directly

related and of material assistance to the teaching content

of the transmission; and

`(C) the work is provided for reception by--

`(i) students officially enrolled in the course in

connection with which it is provided; or

`(ii) officers or employees of governmental bodies as

part of their official duties or employment;'

(c) EPHEMERAL RECORDINGS OF WORKS- Section 112(b) of title 17,

United States Code, is amended by deleting `transmit a performance

or display of' and inserting in lieu thereof: `perform, display or

distribute'.

SEC. 205. LIMITATIONS ON EXCLUSIVE RIGHTS.

(a) TITLE- The title of section 117 of title 17,

United States Code, is amended to read as follows:

`Sec. 117. Limitations on exclusive rights: Computer programs and

digital copies';

(b) DIGITAL COPIES- Section 117 of title 17, United States Code,

is amended by inserting `(a)' before `Notwithstanding' and

inserting the following as a new subsection (b):

`(b) Notwithstanding the provisions of section 106, it is not an

infringement to make a copy of a work in a digital format if such

copying--

`(1) is incidental to the operation of a device in the course

of the use of a work otherwise lawful under this title; and

`(2) does not conflict with the normal exploitation of the

work and does not unreasonably prejudice the legitimate

interests of the author.'.

TITLE III--WIPO TREATY IMPLEMENTATION

SEC. 301. WIPO IMPLEMENTATION

Title 17 of the United States Code is amended by adding the

following sections:

`Sec. 1201. Circumvention of certain technological measures

`(a) CIRCUMVENTION CONDUCT- No person, for the purpose of

facilitating or engaging in an act of infringement, shall engage in

conduct so as knowingly to remove, deactivate or otherwise

circumvent the application or operation of any effective

technological measure used by a copyright owner to preclude or

limit reproduction of a work or a portion thereof. As used in this

subsection, the term `conduct' does not include manufacturing,

importing or distributing a device or a computer program.

`(b) CONDUCT GOVERNED BY SEPARATE CHAPTER- Notwithstanding

subsection (a), this section shall not apply with respect to

conduct or the offer or performance of a service governed by a

separate chapter of this title.

`(c) DEFINITION OF EFFECTIVE TECHNOLOGICAL MEASURE- As used in

this section, the term `effective technological measure' means

information included with or an attribute applied to a transmission

or a copy of a work in a digital format, or a portion thereof, so

as to protect the rights of a copyright owner of such work or

portion thereof under chapter one of this title and which--

`(1) encrypts or scrambles the work or a portion thereof in

the absence of access information supplied by the copyright

owner; or

`(2) includes attributes regarding access to or recording of

the work that cannot be removed without degrading the work or a

portion thereof.

`Sec. 1202. Integrity of copyright management information

`(a) FALSE COPYRIGHT MANAGEMENT INFORMATION- No person shall

knowingly provide copyright management information that is false,

or knowingly publicly distribute or import for distribution

copyright management information that is false, with intent to

induce, facilitate, or conceal infringement.

`(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION-

No person shall, without authority of the copyright owner or other

lawful authority, knowingly and with intent to mislead or to induce

or facilitate infringement--

`(1) remove or alter any copyright management information;

`(2) publicly distribute or import for distribution a copy of

phonorecord containing copyright management information that

has been altered without authority of the copyright owner or

other lawful authority; or

`(3) publicly distribute or import for distribution a copy or

phonorecord from which copyright management information has

been removed without authority of the copyright owner or other

lawful authority:

[Italic->] Provided, [<-Italic] That the conduct governed by this

subsection does not include the manufacturing, importing or

distributing of a device.

(c) DEFINITION OF COPYRIGHT MANAGEMENT INFORMATION- As used in

this chapter, the term `copyright management information' means the

following information in electronic form as carried in or as data

accompanying a copy of phonorecord of a work, including in digital

form:

`(1) The title and other information identifying the work,

including the information set forth in a notice of copyright;

`(2) The name and other identifying information of the author

of the work;

`(3) The name and other identifying information of the

copyright owner of the work, including the information set

forth in a notice of copyright;

`(4) Terms and conditions for uses of the work;

`(5) Identifying numbers or symbols referring to such

information or links to such information; and

`(6) Such other identifying information concerning the work

as the Register of Copyrights may prescribe by regulation:

[Italic->] Provided, [<-Italic] That the term `copyright

management information' does not include the information described

in section 1002, section 1201(c), or a chapter of this title other

than chapters one through nine of this title: [Italic->] Provided

further, [<-Italic] That, in order to assure privacy protection,

the term `copyright management information' does not include any

personally identifiable information relating to the user of a work,

including but not limited to the name, account, address or other

contact information of or pertaining to the user.

`Sec. 1203. Civil remedies

`(a) CIVIL ACTIONS- Any person aggrieved by a violation of

section 1201(a) or 1202 may bring a civil action in an appropriate

United States district court against any person for such violation.

`(b) POWERS OF THE COURT- In an action brought under subsection

(a), the court--

`(1) may grant a temporary and a permanent injunction on such

terms as it deems reasonable to prevent or restrain a violation;

`(2) may grant such other equitable relief as it deems

appropriate;

`(3) may award damages pursuant to subsection (c);

`(4) may allow the recovery of costs by or against any party

other than the United States or an officer thereof; and

`(5) may award a reasonable attorney's fee to the prevailing

party.

`(c) AWARD OF DAMAGES-

`(1) IN GENERAL- If the court finds that a violation of

section 1201(a) or 1202 has occurred, the complaining party may

elect to either actual damages as computed under paragraph (2)

or statutory damages as computed under paragraph (3).

`(2) ACTUAL DAMAGES- The court may award to the complaining

party the actual damages suffered by him or her 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 instead of statutory damages at any time before

final judgment is entered.

`(3) STATUTORY DAMAGES- (A) The court may award to the

complaining party statutory damages for each violation of

section 1201(a) of not less than $250 or more than $2,500, as

the court considers just, if the complaining party elects such

damages instead of actual damages at any time before final

judgment is entered.

`(B) The court may award to the complaining party statutory

damages for each violation of section 1202 of not less than

$500 or more than $20,000, as the court considers just, if the

complaining party elects such damages instead of actual damages

at any time before final judgment is entered.

`(4) REPEATED VIOLATIONS- In an case in which the court finds

that a person has violated section 1201(a) or 1202 within three

years after a final judgment against that person for another

such violation was entered, the court may increase the award of

damages to not more than double the amount that would otherwise

be awarded under paragraph (2) or (3), as the court considers

just.

`(5) INNOCENT VIOLATION- The court may reduce or remit

altogether the total award of damages that otherwise would be

awarded under paragraph (2) or (3) 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 of section 1201(a) or

1202.'.

SEC. 302. CONFORMING AMENDMENTS.

(a) TABLE OF SECTIONS- The table of sections for chapter 1 of

title 17, United States Code, is amended by--

(1) revising the item relating to section 110 to read as

follows:

`110. Limitations on exclusive rights: Exemption of certain

activities.';

and

(2) revising the item relating to section 117 to read as

follows:

`117. Limitations on exclusive rights: Computer programs and

digital copies.'.

(b) TABLE OF CHAPTERS- The table of chapters for title 17, United

States Code, is amended by adding at the end the following:

1201'.

SEC. 303. EFFECTIVE DATES.

(a) IN GENERAL- Sections one through seven and section 9(a) of

this Act, and the amendments made by sections one through seven and

section 9(a) of this Act, shall take effect on the date of

enactment of this Act.

(b) WIPO TREATIES- Section 8 and section 9(b) of this Act, and

the amendments made by section 8 and section 9(b) of this Act,

shall take effect on the date on which both the World Intellectual

Property Organization Copyright Treaty and the World Intellectual

Property Organization Performances and Phonograms Treaty have

entered into force with respect to the United States.