DMCA

SECTION 1. SHORT TITLE.

This Act may be cited as the ëëDigital Millennium Copyright Actíí.

SEC. 2. TABLE OF CONTENTS.

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE IóWIPO TREATIES IMPLEMENTATION

Sec. 101. Short title.

Sec. 102. Technical amendments.

Sec. 103. Copyright protection systems and copyright management information.

Sec. 104. Evaluation of impact of copyright law and amendments on electronic commerce and technological development.

Sec. 105. Effective date.

TITLE IIóONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

Sec. 201. Short title.

Sec. 202. Limitations on liability for copyright infringement.

Sec. 203. Effective date. 2

TITLE IIIóCOMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION

Sec. 301. Short title.

Sec. 302. Limitations on exclusive rights; computer programs.

TITLE IVóMISCELLANEOUS 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 VóPROTECTION OF CERTAIN ORIGINAL DESIGNS

Sec. 501. Short title.

Sec. 502. Protection of certain original designs.

Sec. 503. Conforming amendments.

Sec. 504. Joint study of the effect of this title.

Sec. 505. Effective date.

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TITLE IIóONLINE COPYRIGHT INFRINGEMENT

LIABILITY LIMITATION

SEC. 201. SHORT TITLE.

This title may be cited as the ëëOnline Copyright Infringement Liability Limitation Actíí.

SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT INFRINGE-MENT.

(a) IN GENERAL.óChapter 5 of title 17, United States Code, is amended by adding after section 511 the following new section:

ëëß 512. Limitations on liability relating to material online

ëë(a) TRANSITORY DIGITAL NETWORK COMMUNICATIONS.óA 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 providerís 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, ifó

ëë(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

ëë(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;

ëë(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

ëë(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

ëë(5) the material is transmitted through the system or network without modification of its content.

ëë(b) SYSTEM CACHING.ó

ëë(1) LIMITATION ON LIABILITY.óA 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 whichó

ëë(A) the material is made available online by a person other than the service provider,

ëë(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

ëë(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.óThe conditions referred to in paragraph (1) are tható

ëë(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 de-scribed in paragraph (1)(A);

ëë(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;

ëë(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 technologyó

ëë(i) does not significantly interfere with the performance of the providerís system or network or with

the intermediate storage of the material;

ëë(ii) is consistent with generally accepted industry standard communications protocols; and

ëë(iii) does not extract information from the providerís 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;

ëë(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

ëë(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 ifó

ëë(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

ëë(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.

ëë(c) INFORMATION RESIDING ON SYSTEMS OR NETWORKS AT

DIRECTION OF USERS.ó

ëë(1) IN GENERAL.óA 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 provideró

ëë(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

ëë(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

ëë(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

ëë(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

ëë(C) upon notification of claimed infringement as de-scribed 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.

ëë(2) DESIGNATED AGENT.óThe 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:

ëë(A) the name, address, phone number, and electronic mail address of the agent.

ëë(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.

ëë(3)ELEMENTS OF NOTIFICATION

ëë(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:

ëë(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.

ëë(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.

ëë(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.

ëë(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if avail-able, an electronic mail address at which the complaining party may be contacted.

ëë(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

ëë(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly in-fringed.

ëë(B)(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.

ëë(ii) In a case in which the notification that is provided to the service providerís designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

ëë(d) INFORMATION LOCATION TOOLS.óA service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an on-line location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provideró

ëë(1)(A) does not have actual knowledge that the material or activity is infringing;

ëë(B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

ëë(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

ëë(2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

ëë(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.

ëë(e) LIMITATION ON LIABILITY OF NONPROFIT EDUCATIONAL IN-STITUTIONS.ó(1) When a public or other nonprofit institution of higher education is a service provider, and when a faculty member or graduate student who is an employee of such institution is per-forming a teaching or research function, for the purposes of sub-sections (a) and (b) such faculty member or graduate student shall be considered to be a person other than the institution, and for the purposes of subsections (c) and (d) such faculty memberís or graduate studentís knowledge or awareness of his or her infringing activities shall not be attributed to the institution, ifó

ëë(A) such faculty memberís or graduate studentís infringing activities do not involve the provision of online access to instructional materials that are or were required or recommended, within the preceding 3-year period, for a course taught at the institution by such faculty member or graduate student;

ëë(B) the institution has not, within the preceding 3-year period, received more than 2 notifications described in subsection (c)(3) of claimed infringement by such faculty member or graduate student, and such notifications of claimed infringement were not actionable under subsection (f); and

ëë(C) the institution provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright.

ëë(2) INJUNCTIONS.óFor the purposes of this subsection, the limitations on injunctive relief contained in subsections (j)(2) and (j)(3), but not those in (j)(1), shall apply.

ëë(f) MISREPRESENTATIONS.óAny person who knowingly materially misrepresents under this sectionó

ëë(1) that material or activity is infringing, or

ëë(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneysí fees, incurred by the alleged infringer, by any copyright owner or copyright ownerís authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

ëë(g) REPLACEMENT OF REMOVED OR DISABLED MATERIAL AND LIMITATION ON OTHER LIABILITY.ó

ëë(1) NO LIABILITY FOR TAKING DOWN GENERALLY.óSubject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service providerís 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.

ëë(2) EXCEPTION.óParagraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provideró

ëë(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;

ëë(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

ëë(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service providerís system or network.

ëë(3) CONTENTS OF COUNTER NOTIFICATION.óTo be effective under this subsection, a counter notification must be a written communication provided to the service providerís designated agent that includes substantially the following:

ëë(A) A physical or electronic signature of the sub-scriber.

ëë(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

ëë(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.

ëë(D) The subscriberís name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriberís address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

ëë(4) LIMITATION ON OTHER LIABILITY.óA service providerís 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).

ëë(h) SUBPOENA TO IDENTIFY INFRINGER.ó

ëë(1) REQUEST.óA copyright owner or a person authorized to act on the ownerís behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

ëë(2) CONTENTS OF REQUEST.óThe request may be made by filing with the clerkó

ëë(A) a copy of a notification described in subsection (c)(3)(A);

ëë(B) a proposed subpoena; and

ëë(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

ëë(3) CONTENTS OF SUBPOENA.óThe subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

ëë(4) BASIS FOR GRANTING SUBPOENA.óIf the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.

ëë(5) ACTIONS OF SERVICE PROVIDER RECEIVING SUBPOENA.ó Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.

ëë(6) RULES APPLICABLE TO SUBPOENA.óUnless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.

ëë(i) CONDITIONS FOR ELIGIBILITY.ó

ëë(1) ACCOMMODATION OF TECHNOLOGY.óThe limitations on liability established by this section shall apply to a service provider only if the service provideró

ëë(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service providerís system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service providerís system or network who are repeat infringers; and

ëë(B) accommodates and does not interfere with standard technical measures.

ëë(2) DEFINITION.óAs used in this subsection, the term ëstandard technical measuresí means technical measures that are used by copyright owners to identify or protect copyrighted works andó

ëë(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process;

ëë(B) are available to any person on reasonable and nondiscriminatory terms; and

ëë(C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.

ëë(j) INJUNCTIONS.óThe following rules shall apply in the case of any application for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section:

ëë(1) SCOPE OF RELIEF.ó(A) With respect to conduct other than that which qualifies for the limitation on remedies set forth in subsection (a), the court may grant injunctive relief with respect to a service provider only in one or more of the following forms:

ëë(i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the providerís system or network.

ëë(ii) An order restraining the service provider from providing access to a subscriber or account holder of the service providerís system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.

ëë(iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose.

ëë(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:

ëë(i) An order restraining the service provider from providing access to a subscriber or account holder of the service providerís system or network who is using the providerís service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.

ëë(ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States.

ëë(2) CONSIDERATIONS.óThe court, in considering the relevant criteria for injunctive relief under applicable law, shall consideró

ëë(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 providerís system or network;

ëë(B) the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement;

ëë(C) whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other on-line locations; and

ëë(D) whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available.

ëë(3) NOTICE AND EX PARTE ORDERS.óInjunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service providerís communications network.

ëë(k) DEFINITIONS.ó

ëë(1) SERVICE PROVIDER.ó(A) As used in subsection (a), the term ëservice providerí 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 userís choosing, without modification to the content of the material as sent or received.

ëë(B) As used in this section, other than subsection (a), the term ëservice providerí means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

ëë(2) MONETARY RELIEF.óAs used in this section, the term ëmonetary reliefí means damages, costs, attorneysí fees, and any other form of monetary payment.

ëë(l) OTHER DEFENSES NOT AFFECTED.óThe failure of a service providerís 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 providerís conduct is not in-fringing under this title or any other defense.

ëë(m) PROTECTION OF PRIVACY.óNothing in this section shall be construed to condition the applicability of subsections (a) through (d) onó

ëë(1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection (i); or

ëë(2) a service provider gaining access to, removing, or disabling access to material in cases in which such conduct is prohibited by law.

ëë(n) CONSTRUCTION.óSubsections (a), (b), (c), and (d) describe separate and distinct functions for purposes of applying this section. Whether a service provider qualifies for the limitation on liability in any one of those subsections shall be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualifies for the limitations on liability under any other such subsection.íí.

(b) CONFORMING AMENDMENT.óThe table of sections for chapter 5 of title 17, United States Code, is amended by adding at the end the following:

ëë512. Limitations on liability relating to material online.íí.

SEC. 203. EFFECTIVE DATE.

This title and the amendments made by this title shall take effect on the date of the enactment of this Act.

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