105th CONGRESS

2d Session

S. 2037

To amend title 17, United States Code, to implement the WIPO Copyright Treaty

and the WIPO Performances and Phonograms Treaty, to provide limitations on

IN THE SENATE OF THE UNITED STATES

May 6, 1998

Mr. HATCH, from the Committee on the Judiciary, reported the following original

bill; which was read twice and placed on the calendar

A BILL

To amend title 17, United States Code, to implement the WIPO Copyright Treaty

and the WIPO Performances and Phonograms Treaty, to provide limitations on

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 of 1998'.

SEC. 2. TABLE OF CONTENTS.

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I--WIPO TREATIES IMPLEMENTATION

Sec. 101. Short title.

Sec. 102. Technical amendments.

Sec. 103. Copyright protection systems and copyright management

information.

Sec. 104. Conforming amendment.

Sec. 105. Effective date.

TITLE II--INTERNET COPYRIGHT INFRINGEMENT LIABILITY

Sec. 201. Short title.

Sec. 202. Limitations on liability for Internet copyright infringement.

Sec. 203. Conforming amendment.

Sec. 204. Liability of educational institutions for online infringement

of copyright.

Sec. 205. Effective date.

TITLE III--COMPUTER MAINTENANCE OR REPAIR

Sec. 301. Limitation on exclusive rights; computer programs.

TITLE IV--DISTANCE EDUCATION; EXEMPTION FOR LIBRARIES AND ARCHIVES

Sec. 401. Ephemeral recordings.

Sec. 402. Limitations on exclusive rights; distance education.

Sec. 403. Exemption for libraries and archives.

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) Section 101 of title 17, United States Code, is amended--

(1) by deleting the definition of `Berne Convention work';

(2) in the definition of `The `country of origin' of a Berne Convention

work', by deleting `The `country of origin' of a Berne Convention

work,', capitalizing the first letter of the word `for', deleting `is

the United States'

after `For purposes of section 411,', and inserting `a work is a `United States

work' only' after `For purposes of section 411,';

(3) in subsection (1)(B) of the definition of `The `country of origin'

of a Berne Convention work', by inserting `treaty party or parties' and

deleting `nation or nations adhering to the Berne Convention';

(4) in subsection (1)(C) of the definition of `The `country of origin'

of a Berne Convention work', by inserting `is not a treaty party' and

deleting `does not adhere to the Berne Convention';

(5) in subsection (1)(D) of the definition of `The `country of origin'

of a Berne Convention work', by inserting `is not a treaty party' and

deleting `does not adhere to the Berne Convention';

(6) in section (3) of the definition of `The `country of origin' of a

Berne Convention work', by deleting `For the purposes of section 411,

the `country of origin' of any other Berne Convention work is not the

United States.';

(7) after the definition for `fixed', by inserting `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.';

(8) after the definition for `including', by inserting `An

`international agreement' is--

`(1) the Universal Copyright Convention;

`(2) the Geneva Phonograms Convention;

`(3) the Berne Convention;

`(4) the WTO Agreement;

`(5) the WIPO Copyright Treaty;

`(6) the WIPO Performances and Phonograms Treaty; and

`(7) any other copyright treaty to which the United States is a party.';

(9) after the definition for `transmit', by inserting `A `treaty party'

is a country or intergovernmental organization other than the United

States that is a party to an international agreement.';

(10) after the definition for `widow', by inserting `The `WIPO Copyright

Treaty' is the WIPO Copyright Treaty concluded at Geneva, Switzerland,

on December 20, 1996.';

(11) after the definition for `The `WIPO Copyright Treaty', by inserting

`The `WIPO Performances and Phonograms Treaty' is the WIPO Performances

and Phonograms Treaty concluded at Geneva, Switzerland on December 20,

1996.'; and

(12) by inserting, after the definition for `work for hire', `The `WTO

Agreement' is the Agreement Establishing the World Trade Organization

entered into on April 15, 1994. 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) Section 104 of title 17, United States Code, is amended--

(1) in section (b)(1), by deleting `foreign nation that is a party to a

inserting `treaty party';

(2) in section (b)(2) by deleting `party to the Universal Copyright

Convention' and inserting `treaty party';

(3) by renumbering the present section (b)(3) as (b)(5) and moving it to

its proper sequential location and inserting a new section (b)(3) to

read:

`(3) the work is a sound recording that was first fixed in a treaty

party; or';

(4) in section (b)(4) by deleting `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';

(5) by renumbering present section (b)(5) as (b)(6);

(6) by inserting a new section (b)(7) to read:

`(7) For purposes of paragraph (2), a work that is published in the

United States or a treaty party within thirty days of publication in a

foreign nation that is not a treaty party shall be considered first

published in the United States or such treaty party as the case may

be.'; and

(7) by inserting a new section (d) to read:

`(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.'.

(1) in paragraph (1), by deleting `(A) a nation adhering to the Berne

Convention or a WTO member country; or (B) subject to a Presidential

proclamation under subsection (g),' and inserting--

`(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) paragraph (3) is amended 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 enactment of the

Uruguay Round Agreements Act;

`(B) on the date of enactment is, or after the date of enactment

becomes, a nation adhering to the Berne Convention;

`(C) adheres to the WIPO Copyright Treaty;

`(D) adheres to the WIPO Performances and Phonograms Treaty; or

`(E) after such date of enactment becomes subject to a proclamation

under subsection (g).';

(3) in paragraph (6)(C)(iii), by deleting `and' after `eligibility';

(4) at the end of paragraph (6)(D), by deleting the period and inserting

`; and';

(5) by adding the following new paragraph (6)(E):

`(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.';

(6) in paragraph (8)(B)(i), by inserting `of which' before `the

majority' and striking `of eligible countries'; and

(7) by deleting paragraph (9).

(d) Section 411 of title 17, United States Code, is amended--

(1) in subsection (a), by deleting `actions for infringement of

United States and'; and

(2) in subsection (a), by inserting `United States' after `no action for

infringement of the copyright in any'.

(e) Section 507(a) of title 17, United States Code, is amended by adding at

the beginning, `Except as expressly provided elsewhere in this title,'.

SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT INFORMATION.

Title 17, United States Code, is amended by adding the following new

chapter:

`CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS

`Sec.

`1201. Circumvention of copyright protection systems.

`1202. Integrity of copyright management information.

`1203. Civil remedies.

`1204. Criminal offenses and penalties.

`1205. Savings Clause.

`Sec. 1201. Circumvention of copyright protection systems

`(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL PROTECTION

MEASURES- (1) No person shall circumvent a technological protection measure

that effectively controls access to a work protected under this title.

`(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 protection 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 protection

measure that effectively controls access to a work protected under this title;

`(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 protection measure that effectively controls access to a

work protected under this title.

`(3) As used in this subsection--

`(A) to `circumvent a technological protection measure' means to

descramble a scrambled work, to decrypt an encrypted work, or otherwise

to avoid, bypass, remove, deactivate, or impair a technological

protection measure, without the authority of the copyright owner; and

`(B) a technological protection 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 protection 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 protection 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 protection 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 protection

measure' means avoiding, bypassing, removing, deactivating, or otherwise

impairing a technological protection measure; and

`(B) a technological protection 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) IMPORTATION- The importation into the United States, the sale for

importation, or the sale within the United States after importation by the

owner, importer, or consignee of any technology, product, service, device,

component, or part thereof as described in subsection (a) or (b) shall be

actionable under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337).

`(d) 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 protection 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 subsections (a)(2) or

(b)(1).

`(e) 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 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 which

circumvents a technological protection 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.

`(f) LAW ENFORCEMENT AND INTELLIGENCE ACTIVITIES- This section does not

prohibit any lawfully authorized investigative, protective, or intelligence

activity of an officer,

agent or employee of the United States, a State, or a political subdivision of a

State, or a person acting pursuant to a contract with such entities.

`(g) Notwithstanding the provisions of subsection 1201(a)(1), a person who

has lawfully obtained the right to use a copy of a computer program may

circumvent a technological protection 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.

`(h) Notwithstanding the provisions of subsections 1201(a)(2) and (b), a

person may develop and employ technological means to circumvent for the

identification and analysis described in subsection (g), or for the limited

purpose of achieving interoperability of an independently created computer

program with other programs, where such means are necessary to achieve such

interoperability, to the extent that doing so does not constitute

infringement under this title.

`(i) The information acquired through the acts permitted under subsection

(g), and the means permitted under subsection (h), may be made available to

others if the person referred to in subsections (g) or (h) provides such

information or means solely for the purpose of achieving interoperability of

an independently created computer program with other programs, and to the

extent that doing so does not constitute infringement under this title, or

violate applicable law other than this title.

`(j) For purposes of subsections (g), (h) and (i), the term

`interoperability' means the ability of computer programs to exchange

information, and for such programs mutually to use the information which has

been exchanged.

`(k) 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 (i) does not itself violate

the provisions of this chapter and (ii) has the sole purpose to prevent the

access of minors to material on the Internet.'

`Sec. 1202. Integrity of copyright management information

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

`(1) provide copyright management information that is false, or

`(2) distribute or import for distribution copyright management

information that is false, with the intent to induce, enable, facilitate

or conceal infringement.

`(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,

`(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

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 chapter, `copyright management information'

means the following information conveyed in connection with copies or

phonorecords of a work or performances or displays of a work, including in

digital form--

`(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

`(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) identifying numbers of symbols referring to such information or

links to such information; or

`(7) 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 AND INTELLIGENCE ACTIVITIES- This section does not

prohibit any lawfully authorized investigative, protective, or intelligence

activity of an officer, agent, or employee of the United States, a State, or

a political subdivision of a State, or a person acting pursuant to a

contract with such entities.

`(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 radio or

television 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.

`(2) DIGITAL TRANSMISSIONS-

`(A) If a digital transmission standard for the placement of

voluntary, consensus standard-setting process involving a

representative cross-section of radio or television 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 subsection (e)(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.

`(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 subsection (e)(1) shall not be liable for a violation of

subsection (b) with respect to such copyright management

information, where the activity that constitutes such violation is

not intended to induce, enable, facilitate or conceal infringement,

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 section; 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

radio or television broadcast stations or cable systems and

for public performance by such stations or systems.

`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;

`(2) at any time while an action is pending, may order the impounding,

on such terms as it deems reasonable, of any device or product that is

in the custody or control of the alleged violator and that the court has

reasonable cause to believe was involved in a violation;

`(3) may award damages under subsection (c);

`(4) in its discretion may allow the recovery of costs by or against any

party other than the United States or an officer thereof;

`(5) in its discretion may award reasonable attorney's fees to the

prevailing party; and

`(6) may, as part of a final judgment or decree finding a violation,

order the remedial modification or the destruction of any device or

product involved in the violation that is in the custody or control of

the violator or has been impounded under paragraph (2).

`(c) AWARD OF DAMAGES-

`(1) IN GENERAL- Except as otherwise provided in this chapter, 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 three years after

a final judgment was entered against the person for another such violation, the

court may increase the award of damages up to triple the amount that would

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- Notwithstanding section 507(a) of this title,

no criminal proceeding shall be brought under this section unless such

proceeding is commenced within five 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.'.

SEC. 104. CONFORMING AMENDMENT.

The table of chapters for Title 17, United States Code, is amended by adding

at the end the following:

1201'.

SEC. 105. EFFECTIVE DATE.

(a) IN GENERAL- Subject to subsection (b), 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 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)(8) of this title.

(B) the amendment made by section 102(a)(10) of this title;

Code, as amended by section 102(c)(1) of this title; and

(D) subparagraph (C) of section 104A(h)(3) of title 17, United States

Code, as amended by section 102(c)(2) of this title.

(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)(8) of this title.

(B) the amendment made by section 102(a)(11) of this title;

(D) Subparagraph (D) of section 104A(h)(1) of title 17, United States

Code, as amended by section 102(c)(2) of this title; and

(E) the amendment made by section 102(c)(4) of this title; and

(F) the amendment made by section 102(c)(5) of this title.

TITLE II--INTERNET COPYRIGHT INFRINGEMENT LIABILITY

SEC. 201. SHORT TITLE.

This title may be cited as the `Internet Copyright Infringement Liability

Clarification Act of 1998'.

SEC. 202. LIMITATIONS ON LIABILITY FOR INTERNET 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. Liability of service providers for online infringement of copyright

`(a) DIGITAL NETWORK COMMUNICATIONS- A service provider shall not be liable

for monetary relief, or except as provided in subsection (i) for injunctive

or other equitable relief, for infringement for 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 the intermediate

and transient storage of such material in the course of such transmitting,

routing or providing connections, if--

`(1) it was initiated by or at the direction of a person other than the

service provider;

`(2) it is carried out through an automatic technical process without

selection of such material by the service provider;

`(3) the service provider does not select the recipients of such

material except as an automatic response to the request of another;

`(4) no such copy of such material made by the service provider 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 the

anticipated recipients for a longer period than is reasonably necessary

for the communication; and

`(5) the material is transmitted without modification to its content.

`(b) SYSTEM CACHING- A service provider shall not be liable for monetary

relief, or except as provided in subsection (i) for injunctive or other

equitable relief, for infringement for the intermediate and temporary

storage of material on the system or network controlled or operated by or

for the service provider, where (i) such material is made available online

by a person other than such service provider, (ii) such material is

transmitted from the person described in clause (i) through such system or

network to someone other than that person at the direction of such other

person, and (iii) the storage is carried out through an automatic technical

process for the purpose of making such material available to users of such

system or network who subsequently request access to that material from the

person described in clause (i), provided that:

`(1) such material is transmitted to such subsequent users without

modification to its content from the manner in which the material

otherwise was transmitted from the person described in clause (i);

`(2) such service provider complies with rules concerning the

refreshing, reloading or other updating of such material when specified

by the person making that material available online in accordance with

an accepted industry standard data communications protocol for the

system or network through which that person makes the material

available; provided that the rules are not used by the person described

in clause (i) to prevent or unreasonably impair such intermediate

storage;

`(3) such service provider does not interfere with the ability of

technology associated with such material that returns to the person

described in clause (i) the information that would have been available

to such person if such material had been obtained by such subsequent

users directly from such person, provided that such technology--

`(A) does not significantly interfere with the performance of the

provider's system or network or with the intermediate storage of the

material;

`(B) is consistent with accepted industry standard communications

protocols; and

`(C) does not extract information from the provider's system or

network other than the information that would have been available to

such person if such material had been accessed by such users

directly from such person;

`(4) either--

`(A) the person described in clause (i) does not currently condition

access to such material; or

`(B) if access to such material is so conditioned by such person, by

a current individual pre-condition, such as a pre-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

been so authorized and only in accordance with those conditions; and

`(5) if the person described in clause (i) makes that material available

online without the authorization of the copyright owner, then the

service provider responds expeditiously to remove, or disable access to,

the material that is claimed to be infringing upon notification of

claimed infringements described in subsection (c)(3); provided that the

material has previously been removed from the originating site, and the

party giving the notification includes in the notification a statement

confirming that such material has been removed or access to it has been

disabled or ordered to be removed or have access disabled.

`(c) INFORMATION STORED ON SERVICE PROVIDERS-

`(1) IN GENERAL- A service provider shall not be liable for monetary

relief, or except as provided in subsection (i) for injunctive or other

equitable relief, for infringement for 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 activity

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) if upon obtaining such knowledge or awareness, the service

provider acts expeditiously to remove or disable access to, the

material;

`(B) does not receive a financial benefit directly attributable to

the infringing activity, where the service provider has the right

and ability to control such activity; and

`(C) in the instance of a 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 only if the service provider has designated an agent to

receive

notifications of claimed infringement described in paragraph (3), by

substantially making the name, address, phone number, electronic mail address of

such agent, and other contact information deemed appropriate by the Register of

Copyrights, available through its service, including on its website, and by

providing such information to the Copyright Office. 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.

`(3) ELEMENTS OF NOTIFICATION-

`(A) To be effective under this subsection, a notification of

claimed infringement means any written communication provided to the

service provider's designated agent 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 such 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 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, or its agent, or the law;

and

`(vi) a statement that the information in the notification is

accurate, and under penalty of perjury, that the complaining

party has the authority to enforce the owner's rights that are

claimed to be infringed.

`(B) A notification from the copyright owner or from a person

authorized to act on behalf of the copyright owner that fails

substantially to conform to the provisions of paragraph (3)(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, provided

that the provider promptly attempts to contact the complaining party

or takes other reasonable steps to assist in the receipt of notice

under paragraph (3)(A)

when the notice is provided to the service provider's designated agent and

substantially satisfies the provisions of subparagraphs (3)(A)(ii), (iii), and

(iv).

`(d) INFORMATION LOCATION TOOLS- A service provider shall not be liable for

monetary relief, or except as provided in subsection (i) for injunctive or

other equitable relief, for infringement for the provider referring or

linking users to an online location containing infringing material or

activity by using information location tools, including a directory, index,

reference, pointer or hypertext link, if the provider--

`(1) does not have actual knowledge that the material or activity is

infringing or, in the absence of such actual knowledge, is not aware of

facts or circumstances from which infringing activity is apparent;

`(2) does not receive a financial benefit directly attributable to the

infringing activity, where the service provider has the right and

ability to control such activity; and

`(3) responds expeditiously to remove or disable the reference or link

upon notification of claimed infringement as described in subsection

(c)(3); provided that for the purposes of this paragraph, the element 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 such reference or

link.

`(e) 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 the 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.

`(f) REPLACEMENT OF REMOVED OR DISABLED MATERIAL AND LIMITATION ON OTHER

LIABILITY-

`(1) Subject to paragraph (2) of this subsection, 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) Paragraph (1) of this subsection 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 notice as described in paragraph (3),

promptly provides the person who provided the notice under

subsection (c)(1)(C) with a copy of the counter notice, and informs

such person that it will replace the removed material or cease

disabling access to it in ten business days; and

`(C) replaces the removed material and ceases disabling access to it

not less than ten, nor more than fourteen, 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) To be effective under this subsection, a counter notification means

any 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 such

material appeared before it was removed or access 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 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 notice under subsection (c)(1)(C) or

agent of such person.

`(4) 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).

`(g) IDENTIFICATION OF DIRECT INFRINGER- The copyright owner or a person

authorized to act on the owner's behalf may request an order for release of

identification of an alleged infringer by filing (i) a copy of

a notification described in subsection (c)(3)(A), including a proposed order,

and (ii) a sworn declaration that the purpose of the order is to obtain the

identity of an alleged infringer and that such information will only be used for

the purpose of this title, with the clerk of any United States district court.

The order shall authorize and order the service provider receiving the

notification to disclose expeditiously to the copyright owner or person

authorized by the copyright owner information sufficient to identify the alleged

direct infringer of the material described in the notification to the extent

such information is available to the service provider. The order shall be

expeditiously issued if the accompanying notification satisfies the provisions

of subsection (c)(3)(A) and the accompanying declaration is properly executed.

Upon receipt of the order, either accompanying or subsequent to the receipt of a

notification described in subsection (c)(3)(A), a service provider shall

expeditiously give to the copyright owner or person authorized by the copyright

owner the information required by the order, notwithstanding any other provision

of law and regardless of whether the service provider responds to the

notification.

`(h) CONDITIONS FOR ELIGIBILITY-

`(1) ACCOMMODATION OF TECHNOLOGY- The limitations on liability

established by this section shall apply only if the service provider--

`(A) has adopted and reasonably implemented, and informs subscribers

of the service of, a policy for the termination of subscribers of

the service who are repeat infringers; and

`(B) accommodates and does not interfere with standard technical

measures as defined in this subsection.

`(2) DEFINITION- As used in this section, `standard technical measures'

are technical measures, used by copyright owners to identify or protect

copyrighted works, that--

`(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.

`(i) 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 by operation of this section:

`(1) SCOPE OF RELIEF-

`(A) With respect to conduct other than that which qualifies for the

limitation on remedies as set forth in subsection (a), the court may

only grant injunctive relief with respect to a service provider in

one or more of the following forms:

`(i) an order restraining it 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 it from providing access to an

identified subscriber of the service provider's system or

network who is engaging in infringing activity by terminating

the specified accounts of such subscriber; or

`(iii) such other injunctive remedies as the court may consider

necessary to prevent or restrain infringement of specified

copyrighted material at a particular online location, provided

that such remedies are the least burdensome to the service

provider that are 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 it from providing access to an

identified subscriber of the service provider's system or

network who is using the provider's service to engage in

infringing activity by terminating the specified accounts of

such subscriber; or

`(ii) an order restraining it from providing access, by taking

specified reasonable steps to block access, to a specific,

identified, foreign online location.

`(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

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 not be available without notice to the service provider and an

opportunity for such provider to appear, 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.

`(j) DEFINITIONS-

`(1)(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 any other subsection of this section, 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 the

preceding paragraph of this subsection.

`(2) As used in this section, the term `monetary relief' means damages,

costs, attorneys' fees, and any other form of monetary payment.

`(k) 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.

`(l) 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 (h); or

`(2) a service provider accessing, removing, or disabling access to

material where such conduct is prohibited by law.

`(m) RULE OF CONSTRUCTION- Subsections (a), (b), (c), and (d) are intended

to describe separate and distinct functions for purposes of analysis under

this section. Whether a service provider qualifies for the limitation on

liability in any one such subsection shall be based solely on the criteria

in each such subsection and shall not affect a determination of whether such

service provider qualifies for the limitations on liability under any other

such subsection.'.

SEC. 203. 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. Liability of service providers for online infringement of

SEC. 204. LIABILITY OF EDUCATIONAL INSTITUTIONS FOR ONLINE INFRINGEMENT OF

(a) Not later than six months after the date of enactment of this Act, the

owners and nonprofit educational institutions, shall submit to the Congress

recommendations regarding the liability of nonprofit educational institutions

for copyright infringement committed with the use of computer systems for which

such an institution is a service provider, as that term is defined in 17 U.S.C.

Sec. 512 (as amended by this Act), including recommendations for legislation the

(b) In formulating recommendations, the Register of Copyrights shall

consider, where relevant--

(1) current law regarding the direct, vicarious, and contributory

liability of nonprofit educational institutions for infringement by

faculty, administrative employees, students, graduate students, and

students who are employees of a nonprofit educational institution;

(2) other users of their computer systems for whom nonprofit educational

institutions may be responsible;

(3) the unique nature of the relationship between nonprofit educational

institutions and faculty;

(4) what policies nonprofit educational institutions should adopt

regarding copyright infringement by users of their computer systems;

(5) what technological measures are available to monitor infringing

uses;

(6) what monitoring of their computer systems by nonprofit educational

institutions is appropriate;

(7) what due process nonprofit educational institutions should afford in

disabling access by users of their computer systems who are alleged to

have committed copyright infringement;

(8) what distinctions, if any, should be drawn between computer systems

which may be accessed from outside the nonprofit educational systems,

those which may not, and combinations thereof;

(9) the tradition of academic freedom; and

(10) such other issues relating to the liability of nonprofit

educational institutions for copyright infringement committed with the

use of computer systems for which such an institution is a service

provider that the Register considers appropriate.

SEC. 205. 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

SEC. 301. LIMITATION 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 new subsections:

`(c) MACHINE MAINTENANCE OR REPAIR- Notwithstanding the provisions of

section 106, it is not an infringement for an 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--EPHEMERAL RECORDINGS; DISTANCE EDUCATION; EXEMPTION FOR LIBRARIES AND