[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1146 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                S. 1146

   To amend title 17, United States Code, to provide limitations on 
    copyright liability relating to material on-line, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 3, 1997

 Mr. Ashcroft introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend title 17, United States Code, to provide limitations on 
    copyright liability relating to material on-line, and for other 
                               purposes.

    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 Copyright Clarification and 
Technology Education Act of 1997''.

                TITLE 1--DIGITAL COPYRIGHT CLARIFICATION

SEC. 101. PURPOSES.

    The purposes of this Act are--
            (1) to clarify the application of copyright law in the 
        unique environment of Internet and on-line communication;
            (2) to foster the continued growth and development of the 
        Internet as a means of communication and commerce, including 
        the lawful distribution of intellectual property;
            (3) to protect the rights of copyright owners in the 
        digital environment;
            (4) to clarify that providing network services and 
        facilities with respect to the transmission of electronic 
        communications of another person does not result in liability 
        under the Copyright Act;
            (5) to clarify that Internet and on-line service providers 
        are not liable for third-party copyright infringements unless 
        they have received notice in compliance with this Act of the 
        infringing material and have a reasonable opportunity to limit 
        the third-party infringement; and
            (6) to create incentives for the rapid elimination of 
        infringing material residing on an electronic communications 
        system or network without litigation.

SEC. 102. CLARIFICATION OF LIABILITY.

    (a) In General.--Chapter 5 of title 17, United States Code, is 
amended by adding after section 511 the following new section:
``Sec. 512. Liability relating to material on the Internet and on-line
    ``(a) Material Being Transmitted Through an Electronic 
Communications System or Network.--
            ``(1) Network services with respect to the transmission of 
        electronic communications.--A person shall not be liable for 
        direct, vicarious or contributory infringement of copyright 
        arising out of providing electronic communications network 
        services or facilities with respect to a copyright infringement 
        by a user. A person shall be considered to provide ``network 
        services and facilities'' when such person transmits, routes or 
        provides connections for material on behalf of a user over an 
        electronic communications system or network controlled or 
        operated by or for the person, including intermediate and 
        transient storage, the processing of information, and the 
        provision of facilities therefor, if--
                    ``(A) the provision of services is for the purpose 
                of managing, controlling or operating a communications 
                system or network, supplying local access, local 
                exchange, telephone toll, trunk line, private line, or 
                backbone services, including network components or 
                functions necessary to the transmission of material 
                contained in electronic communications carried over 
                those services; or
                    ``(B) the transmission of material over the system 
                or network on behalf of a user does not involve the 
                generation or material alteration of content by the 
                person.
            ``(2) Private and real-time communication services.--A 
        person shall not be liable for direct, vicarious or 
        contributory infringement of copyright arising from supplying 
        to another--
                    ``(A) a private electronic communication, including 
                voice messaging or electronic mail services, or any 
                other communication for which such person lacks either 
                the technical ability or authority under law to access 
                or disclose such communication to any third party in 
                the normal course of business; or
                    ``(B) real-time communication formats, including 
                chat rooms, streamed data, or other virtually 
                simultaneous transmissions.
            ``(3) Information location tools.--No person shall be 
        liable for direct, vicarious or contributory infringement of 
        copyright arising out of supplying a user of network services 
        or facilities with--
                    ``(A) a site-linking aid or directory, including a 
                hyperlink or index;
                    ``(B) a navigational aid, including a search engine 
                or browser; or
                    ``(C) the tools for the creation of a site-linking 
                aid.
    ``(b) Material Residing on a System or Network.--
            ``(1) Cooperative procedure for expeditious response to 
        claims of infringement.--A person shall not be liable for 
        direct, vicarious or contributory infringement of copyright 
        arising out of the violation of any of the exclusive rights of 
        the copyright owner by another with respect to material 
        residing on a system or network used in conjunction with 
        electronic communications that is controlled or operated by or 
        for the person, unless upon receiving notice complying with 
        paragraph (b)(3), the person fails expeditiously to remove, 
        disable, or block access to the material to the extent 
        technologically feasible and economically reasonable for a 
        period of ten days, or until receiving a court order concerning 
        the material, whichever is less.
            ``(2) Paragraph (b)(1) shall apply where such person--
                    ``(A) did not initiate the placement of the 
                material on the system or network;
                    ``(B) did not determine the content of the material 
                placed on the system of network; and
                    ``(C) did not contract for placement of the 
                specific material on the system or network by another 
                person in order to provide that content as part of the 
                person's service offering.
            ``(3) A person shall not be deemed to have notice that 
        material residing on a system or network used in conjunction 
        with electronic communications is infringing unless the 
        person--
                    ``(A) is in receipt of a notification that the 
                particular material is infringing. Such notification 
                shall:
                            ``(i) pertain only to allegedly infringing 
                        material that resides on a system or network 
                        controlled or operated by or for the person;
                            ``(ii) be submitted in accordance with 
                        directions displayed on the person's system or 
                        network indicating a single place or person to 
                        which such notifications shall be submitted;
                            ``(iii) be signed, physically or 
                        electronically, by an owner of an exclusive 
                        right that is allegedly infringed, or by a 
                        person authorized to act on such owner's 
                        behalf;
                            ``(iv) provide an address, telephone 
                        number, and electronic mail address, if 
                        available, at which the complaining party may 
                        be contacted in a timely manner;
                            ``(v) describe the material claimed to be 
                        infringing, including information reasonably 
                        sufficient to permit the person expeditiously 
                        to identify and locate the material;
                            ``(vi) provide reasonable proof of a 
                        certificate of copyright registration for the 
                        material in question, a filed application for 
                        such registration, or a court order 
                        establishing that use of the material in the 
                        manner complained of is not authorized by the 
                        copyright owner or the law;
                            ``(vii) contain a sworn statement that the 
                        information in the notice is accurate, that the 
                        complaining party is an owner of the exclusive 
                        right that is claimed to be infringed or 
                        otherwise has the authority to enforce the 
                        owner's rights under this title, and that the 
                        complaining party has a good faith belief that 
                        the use complained of is an infringement;
                            ``(viii) be accompanied by any payment that 
                        the Register of Copyrights determines is 
                        necessary to deter frivolous and de minimis 
                        notices; and
                    ``(B) A person who is an employee or agent of a 
                nonprofit educational institution, library or archives, 
                acting within the scope of his employment, or such an 
                educational institution, library or archives itself, 
                shall not be deemed to have notice under subparagraph 
                (A) if that person reasonably believed (i) that the 
                allegedly infringing use was a fair use under Sec. 10 
                or (ii) was otherwise lawful; and
                    ``(C) The Register of Copyrights may, by 
                regulation, establish guidelines identifying additional 
                information to be included in the notice and shall 
                issue a standard notice form in both electronic and 
                hard copy formats, which complies with this paragraph, 
                but failure of a party to provide any such additional 
                information, or failure to use any issued form, shall 
                not invalidate the notice.
            ``(4) Misrepresentations and redress for wrongful 
        notifications.--Any person who materially misrepresents that 
        material on-line is infringing in a notice described in 
        paragraph (b)(3)(A), shall be liable in a civil action that may 
        be brought in an appropriate United States district court or 
        State court for statutory damages of not less than $1,000, and 
        any actual damages, including costs and attorneys' fees, 
        incurred by--
                    ``(A) the actual copyright owner or the alleged 
                infringer arising out of the disabling or blocking of 
                access to or removal of such material; or
                    ``(B) any person who relies upon such 
                misrepresentation in removing, disabling, or blocking 
                access to the material claimed to be infringing in such 
                notice.
            ``(5) Limitation on liability based upon removing, 
        disabling, or blocking access to infringing material.--A person 
        shall not be liable for any claim based on that person's 
        removing, disabling, or blocking access for a period of ten 
        days, or until the person receives a court order concerning the 
        material, whichever is less, to material residing on a system 
        or network used in conjunction with electronic communications 
        that is controlled or operated by or for that person in 
        response to notice pursuant to paragraph (b)(3)(A) that the 
        material is infringing, whether or not the material is 
        infringing.
            ``(6) Other defenses not affected.--A person's removing, 
        disabling, or blocking access to material residing on a system 
        or network used in conjunction with electronic communications 
        that is controlled or operated by or for that person, pursuant 
        to paragraph (1), or the failure to do so, shall not adversely 
bear upon the consideration by a court of any other issue pertaining to 
liability or remedy, including any other limitation on liability 
established in paragraph (a), any other applicable defense, any claim 
that the service provider's alleged conduct is not infringing, or 
whether or not such conduct is willful or innocent.''.
    (b) Conforming Amendment.--The table of sections for chapter 5 of 
title 17, United States Code, is amended at the end the following:

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

            TITLE II--TECHNOLOGY FOR TEACHERS AND LIBRARIANS

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Technology for Educators and 
Children (TECh) Act''.

SEC. 202. FAIR USE.

    (a) Transmissions.--The first sentence of section 107 of title 17, 
United States Code, is amended by inserting after ``or by any other 
means specified in that section,'' the following: ``and by analog or 
digital transmission,''.
    (b) Determination.--Section 107 of title 17, United States Code, is 
amended by adding at the end thereof the following: ``In making a 
determination concerning fair use, no independent weight shall be 
afforded to--
            ``(1) the means by which the work has been performed, 
        displayed or distributed under the authority of the copyright 
        owner; or
            ``(2) the application of an effective technological measure 
        (as defined under section 1201(c)) to the work.''.

SEC. 203. LIBRARY EXEMPTIONS.

    Section 108 of title 17, United States Code, is amended--
            (1) by striking ``Notwithstanding'' at the beginning of 
        subsection (a) and inserting: ``Except as otherwise provided 
        and notwithstanding'';
            (2) by inserting after ``copyright'' in subsection (a)(3): 
        ``if such notice appears on the copy or phonorecord that is 
        reproduced under the provisions of this section'';
            (3) in subsection (b) by--
                    (A) deleting ``a copy or phonorecord'' and 
                inserting in lieu thereof: ``three copies or 
                phonorecords''; and
                    (B) deleting ``in facsimile form''; and
            (4) in subsection (c) by--
                    (A) deleting ``a copy or phonorecord'' and 
                inserting in lieu thereof: ``three copies or 
                phonorecords'';
                    (B) deleting ``in facsimile form''; and
                    (C) inserting ``or if the existing format in which 
                the work is stored has become obsolete,'' after 
                ``stolen,''.

SEC. 204. DISTANCE EDUCATION.

    (a) Title Change.--The title of section 117 of title 17, United 
States Code, is amended to read as follows:
``Sec. 110. Limitations on exclusive rights: Exemption of certain 
              activities'';
    (b) Performance, Display and Distribution of a Work.--Section 
110(2) of title 17, United States Code, is amended to read as follows:
            ``(2) performance, display or distribution of a work, by or 
        in the course of an analog or digital transmission, if--
                    ``(A) the performance, display or distribution is a 
                regular part of the systematic instructional activities 
                of a governmental body or a nonprofit educational 
                institution;
                    ``(B) the performance, display or distribution is 
                directly related and of material assistance to the 
                teaching content of the transmission; and
                    ``(C) the work is provided for reception by--
                            ``(i) students officially enrolled in the 
                        course in connection with which it is provided; 
                        or
                            ``(ii) officers or employees of 
                        governmental bodies as part of their official 
                        duties or employment;''
    (c) Ephemeral Recordings of Works.--Section 112(b) of title 17, 
United States Code, is amended by deleting ``transmit a performance or 
display of'' and inserting in lieu thereof: ``perform, display or 
distribute''.

SEC. 205. LIMITATIONS ON EXCLUSIVE RIGHTS.

    (a) Title.--The title of section 117 of title 17, 
United States Code, is amended to read as follows:
``Sec. 117. Limitations on exclusive rights: Computer programs and 
              digital copies'';
    (b) Digital Copies.--Section 117 of title 17, United States Code, 
is amended by inserting ``(a)'' before ``Notwithstanding'' and 
inserting the following as a new subsection (b):
    ``(b) Notwithstanding the provisions of section 106, it is not an 
infringement to make a copy of a work in a digital format if such 
copying--
            ``(1) is incidental to the operation of a device in the 
        course of the use of a work otherwise lawful under this title; 
        and
            ``(2) does not conflict with the normal exploitation of the 
        work and does not unreasonably prejudice the legitimate 
        interests of the author.''.

                 TITLE III--WIPO TREATY IMPLEMENTATION

SEC. 301. WIPO IMPLEMENTATION

    Title 17 of the United States Code is amended by adding the 
following sections:
``Sec. 1201. Circumvention of certain technological measures
    ``(a) Circumvention Conduct.--No person, for the purpose of 
facilitating or engaging in an act of infringement, shall engage in 
conduct so as knowingly to remove, deactivate or otherwise circumvent 
the application or operation of any effective technological measure 
used by a copyright owner to preclude or limit reproduction of a work 
or a portion thereof. As used in this subsection, the term `conduct' 
does not include manufacturing, importing or distributing a device or a 
computer program.
    ``(b) Conduct Governed by Separate Chapter.--Notwithstanding 
subsection (a), this section shall not apply with respect to conduct or 
the offer or performance of a service governed by a separate chapter of 
this title.
    ``(c) Definition of Effective Technological Measure.--As used in 
this section, the term `effective technological measure' means 
information included with or an attribute applied to a transmission or 
a copy of a work in a digital format, or a portion thereof, so as to 
protect the rights of a copyright owner of such work or portion thereof 
under chapter one of this title and which--
            ``(1) encrypts or scrambles the work or a portion thereof 
        in the absence of access information supplied by the copyright 
        owner; or
            ``(2) includes attributes regarding access to or recording 
        of the work that cannot be removed without degrading the work 
        or a portion thereof.
``Sec. 1202. Integrity of copyright management information
    ``(a) False Copyright Management Information.--No person shall 
knowingly provide copyright management information that is false, or 
knowingly publicly distribute or import for distribution copyright 
management information that is false, with intent to induce, 
facilitate, or conceal infringement.
    ``(b) Removal or Alteration of Copyright Management Information.--
No person shall, without authority of the copyright owner or other 
lawful authority, knowingly and with intent to mislead or to induce or 
facilitate infringement--
            ``(1) remove or alter any copyright management information;
            ``(2) publicly distribute or import for distribution a copy 
        of phonorecord containing copyright management information that 
        has been altered without authority of the copyright owner or 
        other lawful authority; or
            ``(3) publicly distribute or import for distribution a copy 
        or phonorecord from which copyright management information has 
        been removed without authority of the copyright owner or other 
        lawful authority:
Provided, That the conduct governed by this subsection does not include 
the manufacturing, importing or distributing of a device.
    (c) Definition of Copyright management Information.--As used in 
this chapter, the term `copyright management information' means the 
following information in electronic form as carried in or as data 
accompanying a copy of phonorecord of a work, including in digital 
form:
            ``(1) The title and other information identifying the work, 
        including the information set forth in a notice of copyright;
            ``(2) The name and other identifying information of the 
        author of the work;
            ``(3) The name and other identifying information of the 
        copyright owner of the work, including the information set 
        forth in a notice of copyright;
            ``(4) Terms and conditions for uses of the work;
            ``(5) Identifying numbers or symbols referring to such 
        information or links to such information; and
            ``(6) Such other identifying information concerning the 
        work as the Register of Copyrights may prescribe by regulation:
Provided, That the term `copyright management information' does not 
include the information described in section 1002, section 1201(c), or 
a chapter of this title other than chapters one through nine of this 
title: Provided further, That, in order to assure privacy protection, 
the term `copyright management information' does not include any 
personally identifiable information relating to the user of a work, 
including but not limited to the name, account, address or other 
contact information of or pertaining to the user.
``Sec. 1203. Civil remedies
    ``(a) Civil Actions.--Any person aggrieved by a violation of 
section 1201(a) or 1202 may bring a civil action in an appropriate 
United States district court against any person for such violation.
    ``(b) Powers of the Court.--In an action brought under subsection 
(a), the court--
            ``(1) may grant a temporary and a permanent injunction on 
        such terms as it deems reasonable to prevent or restrain a 
        violation;
            ``(2) may grant such other equitable relief as it deems 
        appropriate;
            ``(3) may award damages pursuant to subsection (c);
            ``(4) may allow the recovery of costs by or against any 
        party other than the United States or an officer thereof; and
            ``(5) may award a reasonable attorney's fee to the 
        prevailing party.
    ``(c) Award of Damages.--
            ``(1) In general.--If the court finds that a violation of 
        section 1201(a) or 1202 has occurred, the complaining party may 
        elect to either actual damages as computed under paragraph (2) 
        or statutory damages as computed under paragraph (3).
            ``(2) Actual damages.--The court may award to the 
        complaining party the actual damages suffered by him or her as 
        a result of the violation, and any profits of the violator that 
        are attributable to the violation and are not taken into 
        account in computing the actual damages, if the complaining 
        party elects such damages instead of statutory damages at any 
        time before final judgment is entered.
            ``(3) Statutory damages.--(A) The court may award to the 
        complaining party statutory damages for each violation of 
        section 1201(a) of not less than $250 or more than $2,500, as 
        the court considers just, if the complaining party elects such 
        damages instead of actual damages at any time before final 
        judgment is entered.
            ``(B) The court may award to the complaining party 
        statutory damages for each violation of section 1202 of not 
        less than $500 or more than $20,000, as the court considers 
        just, if the complaining party elects such damages instead of 
        actual damages at any time before final judgment is entered.
            ``(4) Repeated violations.--In an case in which the court 
        finds that a person has violated section 1201(a) or 1202 within 
        three years after a final judgment against that person for 
        another such violation was entered, the court may increase the 
        award of damages to not more than double the amount that would 
        otherwise be awarded under paragraph (2) or (3), as the court 
        considers just.
            ``(5) Innocent violation.--The court may reduce or remit 
        altogether the total award of damages that otherwise would be 
        awarded under paragraph (2) or (3) in any case in which the 
violator sustains the burden of proving, and the court finds, that the 
violator was not aware and had no reason to believe that its acts 
constituted a violation of section 1201(a) or 1202.''.

SEC. 302. CONFORMING AMENDMENTS.

    (a) Table of Sections.--The table of sections for chapter 1 of 
title 17, United States Code, is amended by--
            (1) revising the item relating to section 110 to read as 
        follows:

``110. Limitations on exclusive rights: Exemption of certain 
                            activities.'';
        and
            (2) revising the item relating to section 117 to read as 
        follows:

``117. Limitations on exclusive rights: Computer programs and digital 
                            copies.''.
    (b) Table of Chapters.--The table of chapters for title 17, United 
States Code, is amended by adding at the end the following:

``12. Copyright Protection and Management Systems...........    1201''.

SEC. 303. EFFECTIVE DATES.

    (a) In General.--Sections one through seven and section 9(a) of 
this Act, and the amendments made by sections one through seven and 
section 9(a) of this Act, shall take effect on the date of enactment of 
this Act.
    (b) WIPO Treaties.--Section 8 and section 9(b) of this Act, and the 
amendments made by section 8 and section 9(b) of this Act, shall take 
effect on the date on which both the World Intellectual Property 
Organization Copyright Treaty and the World Intellectual Property 
Organization Performances and Phonograms Treaty have entered into force 
with respect to the United States.
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