[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5211 Introduced in House (IH)]







107th CONGRESS
  2d Session
                                H. R. 5211

   To amend title 17, United States Code, to limit the liability of 
 copyright owners for protecting their works on peer-to-peer networks.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 25, 2002

Mr. Berman (for himself, Mr. Coble, Mr. Smith of Texas, and Mr. Wexler) 
 introduced the following bill; which was referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend title 17, United States Code, to limit the liability of 
 copyright owners for protecting their works on peer-to-peer networks.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. LIMITATION ON LIABILITY FOR PROTECTION OF COPYRIGHTED WORKS 
              ON PEER-TO-PEER NETWORKS.

    (a) In General.--Chapter 5 of title 17, United States Code, is 
amended by adding at the end the following new section:
``Sec. 514. Remedies for infringement: use of technologies to prevent 
              infringement of copyrighted works on peer-to-peer 
              computer networks
    ``(a) In General.--Notwithstanding any State or Federal statute or 
other law, and subject to the limitations set forth in subsections (b) 
and (c), a copyright owner shall not be liable in any criminal or civil 
action for disabling, interfering with, blocking, diverting, or 
otherwise impairing the unauthorized distribution, display, 
performance, or reproduction of his or her copyrighted work on a 
publicly accessible peer-to-peer file trading network, if such 
impairment does not, without authorization, alter, delete, or otherwise 
impair the integrity of any computer file or data residing on the 
computer of a file trader.
    ``(b) Exceptions.--Subsection (a) shall not apply to a copyright 
owner in a case in which--
            ``(1) in the course of taking an action permitted by 
        subsection (a), the copyright owner--
                    ``(A) impairs the availability within a publicly 
                accessible peer-to-peer file trading network of a 
                computer file or data that does not contain a work, or 
                portion thereof, in which the copyright owner has an 
                exclusive right granted under section 106, except as 
                may be reasonably necessary to impair the distribution, 
                display, performance, or reproduction of such a work, 
                or portion thereof, in violation of any of the 
                exclusive rights of the copyright owner under section 
                106;
                    ``(B) causes economic loss to any person other than 
                affected file traders; or
                    ``(C) causes economic loss of more than $50.00 per 
                impairment to the property of the affected file trader, 
                other than economic loss involving computer files or 
                data made available through a publicly accessible peer-
                to-peer file trading network that contain works in 
                which the owner has an exclusive right granted under 
                section 106; or
            ``(2) the copyright owner fails to comply with the 
        requirements of subsection (c).
    ``(c) Notification Requirement.--(1) A copyright owner shall not be 
liable under subsection (a) for an act to which subsection (a) applies 
only if--
            ``(A) the copyright owner has notified the Department of 
        Justice, in such manner as the Attorney General shall specify, 
        of the specific technologies the copyright owner intends to use 
        to impair the unauthorized distribution, display, performance, 
        or reproduction of the owner's copyrighted works over a 
        publicly accessible peer-to-peer file trading network; and
            ``(B) the notification under paragraph (1) was made at 
        least 7 days before the copyright owner engaged in the act.
    ``(2) At the request of an affected file trader or the assignee of 
an Internet Protocol address used by an affected file trader, a 
copyright owner shall provide notice to the affected file trader or 
assignee (as the case may be) of--
            ``(A) the reason for impairing trading in the computer file 
        or data containing the copyrighted work of the copyright owner;
            ``(B) the name and address of the copyright owner; and
            ``(C) the right of the affected file trader to bring an 
        action described in subsection (d).
    ``(3) The notification by a copyright owner under paragraph (1) 
shall not be construed for any purpose as an admission of an unlawful 
act.
    ``(d) Cause of Action for Wrongful Impairment.--(1) If, pursuant to 
the authority provided by subsection (a), a copyright owner knowingly 
and intentionally impairs the distribution, display, performance, or 
reproduction of a particular computer file or data, and has no 
reasonable basis to believe that such distribution, display, 
performance, or reproduction constitutes an infringement of copyright, 
and an affected file trader suffers economic loss in excess of $250 as 
a result of the act by the copyright owner, the affected file trader 
may seek compensation for such economic loss in accordance with the 
following:
            ``(A) The affected file trader may file a claim for such 
        compensation with the Attorney General not later than 1 year 
        after the date on which the claim accrues. The Attorney General 
        shall, not later than 10 days after the claim is filed, serve 
        notice of the claim on the copyright owner against whom the 
        claim is brought, and shall investigate the claim. The claim 
        shall be in writing under oath or affirmation and shall contain 
        such information and be in such form as the Attorney General 
        requires. The claim shall not be made public by the Attorney 
General.
            ``(B) If the Attorney General determines after such 
        investigation that there is not reasonable cause to believe 
        that the facts alleged in the claim are true, the Attorney 
        General shall dismiss the claim and promptly notify the 
        affected file trader and the copyright owner against whom the 
        claim is brought of the Attorney General's action.
            ``(C) If the Attorney General determines after such 
        investigation that there is reasonable cause to believe that 
        the facts alleged in the claim are true, the Attorney General 
        shall promptly notify the affected file trader and the 
        copyright owner of the Attorney General's determination.
            ``(D) The Attorney General shall make the determination on 
        reasonable cause as promptly as possible, but in no case later 
        than 120 days after the date on which the claim is filed.
            ``(E) The affected file trader may seek compensation for 
        the economic loss that is the subject of the claim, plus 
        reasonable attorney's fees, in the appropriate United States 
        district court by filing an action in such court--
                    ``(i) not later than 60 days after being notified 
                of the Attorney General's determination under 
                subparagraph (C); or
                    ``(ii) if the Attorney General has not made a 
                determination on the claim within the 120-day period 
                specified in subparagraph (D), not later than 60 days 
                after the end of that 120-day period.
    ``(2) The cause of action established by this subsection shall only 
be available as a remedy against impairing actions that would not be 
lawful but for subsection (a).
    ``(e) Suits by United States.--The Attorney General of the United 
States may seek injunctive relief in the appropriate United States 
district court to prevent a copyright owner from engaging in impairing 
activities that would not be lawful but for subsection (a) if that 
owner has engaged in a pattern or practice of impairing the 
distribution, display, performance, or reproduction of computer files 
or data without a reasonable basis to believe that infringement of 
copyright has occurred.
    ``(f) Construction With Other Statutes.--(1) Nothing in this 
section shall be construed as limiting the authority of a copyright 
owner to take any otherwise lawful action to enforce any of the 
exclusive rights granted by section 106.
    ``(2) Nothing in this section shall limit any remedies available to 
a person under section 1030 of title 18, or under any other State or 
Federal statute or any other law, against a copyright owner who fails 
to qualify for the protections afforded under subsection (a).
    ``(3) Actions taken by a copyright owner pursuant to subsection (a) 
shall not be considered by a court for any other purpose under this 
title, including in determining whether a particular use of a work is 
infringing.
    ``(g) Nondisclosure of Information.--Information contained in any 
notification under subsection (c)(1)(A) may not be made available to 
the public under section 552 of title 5.
    ``(h) Definitions.--In this section--
            ``(1) the term `economic loss' means monetary costs only;
            ``(2) `peer-to-peer file trading network' means two or more 
        computers which are connected by computer software that--
                    ``(A) is primarily designed to--
                            ``(i) enable the connected computers to 
                        transmit files or data to other connected 
                        computers;
                            ``(ii) enable the connected computers to 
                        request the transmission of files or data from 
                        other connected computers; and
                            ``(iii) enable the designation of files or 
                        data on the connected computers as available 
                        for transmission; and
                    ``(B) does not permanently route all file or data 
                inquiries or searches through a designated, central 
                computer located in the United States;
            ``(3) a peer-to-peer file trading network is `publicly 
        accessible' if--
                    ``(A) participation in the network is substantially 
                open to the public; and
                    ``(B) the network enables the transmission of 
                computer files or data over the Internet or any other 
                public network of computers;
            ``(4) the term `file trader' means an individual who is 
        utilizing a publicly accessible, peer-to-peer file trading 
        network to transmit, make available for transmission, or 
        download computer files or data, or the owner of a computer 
        that is connected to a publicly accessible, peer-to-peer file 
        trading network and is engaged in the transmission of computer 
        files or data through the peer-to-peer file trading network;
            ``(5) the term `distribution', in the case of a computer 
        connected to a peer-to-peer file trading network, includes the 
        placement of a computer file or data in an area of a computer 
        that is accessible to other computers connected to the peer-to-
        peer file trading network; and
            ``(6) the term `copyright owner' means a legal or 
        beneficial owner of an exclusive right under section 106 and 
        any party authorized to act on the owner's behalf.''.
    (b) Conforming Amendment.--The table of sections for chapter 5 of 
title 17, United States Code, is amended by adding at the end the 
following new item:

``514. Remedies for infringement: use of technologies to prevent 
                            infringement of copyrighted works on peer-
                            to-peer computer networks.''.
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