Original document located at http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=wais.access.gpo.gov&filename=publ304.105&directory=/diskb/wais/data/105_cong_public_laws
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DIGITAL MILLENNIUM COPYRIGHT ACT
[[Page 112 STAT. 2860]]
Public Law 105-304
105th Congress
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. 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. 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. 201. Short title.
Sec. 202. Limitations on liability for copyright infringement.
Sec. 203. Effective date.
TITLE III--COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
Sec. 301. Short title.
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. 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.
[[Page 112 STAT. 2861]]
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'';
(B) in paragraph (1)--
(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;
``(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.'';
(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:
[[Page 112 STAT. 2862]]
``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--
(1) in subsection (b)--
(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
[[Page 112 STAT. 2863]]
``(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).'';
(3) in paragraph (6)--
(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.
``1203. Civil remedies.
``1204. Criminal offenses and penalties.
``1205. Savings clause.
``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
[[Page 112 STAT. 2864]]
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
[[Page 112 STAT. 2865]]
``(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).
[[Page 112 STAT. 2866]]
``(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
[[Page 112 STAT. 2867]]
readily available to the person engaging in the circumvention, to the
extent any such acts of identification and analysis do not constitute
infringement under this title.
``(2) Notwithstanding the provisions of subsections (a)(2) and (b),
a person may develop and employ technological means to circumvent a
technological measure, or to circumvent protection afforded by a
technological measure, in order to enable the identification and
analysis under paragraph (1), or for the purpose of enabling
interoperability of an independently created computer program with other
programs, if such means are necessary to achieve such interoperability,
to the extent that doing so does not constitute infringement under this
title.
``(3) The information acquired through the acts permitted under
paragraph (1), and the means permitted under paragraph (2), may be made
available to others if the person referred to in paragraph (1) or (2),
as the case may be, provides such information or means solely for the
purpose of enabling interoperability of an independently created
computer program with other programs, and to the extent that doing so
does not constitute infringement under this title or violate applicable
law other than this section.
``(4) For purposes of this subsection, the term `interoperability'
means the ability of computer programs to exchange information, and of
such programs mutually to use the information which has been exchanged.
``(g) Encryption Research.--
``(1) Definitions.--For purposes of this subsection--
``(A) the term `encryption research' means
activities necessary to identify and analyze flaws and
vulnerabilities of encryption technologies applied to
copyrighted works, if these activities are conducted to
advance the state of knowledge in the field of
encryption technology or to assist in the development of
encryption products; and
``(B) the term `encryption technology' means the
scrambling and descrambling of information using
mathematical formulas or algorithms.
``(2) Permissible acts of encryption research.--
Notwithstanding the provisions of subsection (a)(1)(A), it is
not a violation of that subsection for a person to circumvent a
technological measure as applied to a copy, phonorecord,
performance, or display of a published work in the course of an
act of good faith encryption research if--
``(A) the person lawfully obtained the encrypted
copy, phonorecord, performance, or display of the
published work;
``(B) such act is necessary to conduct such
encryption research;
``(C) the person made a good faith effort to obtain
authorization before the circumvention; and
``(D) such act does not constitute infringement
under this title or a violation of applicable law other
than this section, including section 1030 of title 18
and those provisions of title 18 amended by the Computer
Fraud and Abuse Act of 1986.
``(3) Factors in determining exemption.--In determining
whether a person qualifies for the exemption under paragraph
(2), the factors to be considered shall include--
``(A) whether the information derived from the
encryption research was disseminated, and if so, whether
[[Page 112 STAT. 2868]]
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;
[[Page 112 STAT. 2869]]
``(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.
``( j) Security Testing.--
``(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
[[Page 112 STAT. 2870]]
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,
[[Page 112 STAT. 2871]]
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.
[[Page 112 STAT. 2872]]
``(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.
[[Page 112 STAT. 2873]]
``(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
[[Page 112 STAT. 2874]]
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--
[[Page 112 STAT. 2875]]
``(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).
``(c) Award of Damages.--
``(1) In general.--Except as otherwise provided in this
title, a person committing a violation of section 1201 or 1202
is liable for either--
``(A) the actual damages and any additional profits
of the violator, as provided in paragraph (2), or
``(B) statutory damages, as provided in paragraph
(3).
``(2) Actual damages.--The court shall award to the
complaining party the actual damages suffered by the party as a
result of the violation, and any profits of the violator that
are attributable to the violation and are not taken into account
in computing the actual damages, if the complaining party elects
such damages at any time before final judgment is entered.
``(3) Statutory damages.--(A) At any time before final
judgment is entered, a complaining party may elect to recover an
award of statutory damages for each violation of section 1201 in
the sum of not less than $200 or more than $2,500 per act of
circumvention, device, product, component, offer, or performance
of service, as the court considers just.
``(B) At any time before final judgment is entered, a
complaining party may elect to recover an award of statutory
damages for each violation of section 1202 in the sum of not
less than $2,500 or more than $25,000.
``(4) Repeated violations.--In any case in which the injured
party sustains the burden of proving, and the court finds, that
a person has violated section 1201 or 1202 within 3 years after
a final judgment was entered against the person for another such
violation, the court may increase the award of damages up to
triple the amount that would otherwise be awarded, as the court
considers just.
``(5) Innocent violations.--
``(A) In general.--The court in its discretion may
reduce or remit the total award of damages in any case
in which the violator sustains the burden of proving,
and
[[Page 112 STAT. 2876]]
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:
``12. Copyright Protection and Management Systems................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),
[[Page 112 STAT. 2877]]
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,
[[Page 112 STAT. 2878]]
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.
``(b) System Caching.--
``(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
[[Page 112 STAT. 2879]]
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
[[Page 112 STAT. 2880]]
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