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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.
- (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.
- (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.
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