[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4632 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 4632
To amend title 17, United States Code, to establish an alternative
dispute resolution program for copyright small claims, to amend the
Communications Act of 1934 to modify the scope of protection from civil
liability for ``good Samaritan'' blocking and screening of offensive
material, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 21, 2020
Mr. McConnell (for Mr. Graham) 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 establish an alternative
dispute resolution program for copyright small claims, to amend the
Communications Act of 1934 to modify the scope of protection from civil
liability for ``good Samaritan'' blocking and screening of offensive
material, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Online Content
Policy Modernization Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--COPYRIGHT SMALL CLAIMS
Sec. 101. Copyright small claims.
Sec. 102. Implementation.
Sec. 103. Study.
Sec. 104. Severability.
TITLE II--GOOD SAMARITAN BLOCKING
Sec. 201. Protection from civil liability for ``good Samaritan''
blocking and screening of offensive
material.
TITLE I--COPYRIGHT SMALL CLAIMS
SEC. 101. COPYRIGHT SMALL CLAIMS.
(a) In General.--Title 17, United States Code, is amended by adding
at the end the following:
``CHAPTER 15--COPYRIGHT SMALL CLAIMS
``1501. Definitions.
``1502. Copyright Claims Board.
``1503. Authority and duties of the Copyright Claims Board.
``1504. Nature of proceedings.
``1505. Registration requirement.
``1506. Conduct of proceedings.
``1507. Effect of proceeding.
``1508. Review and confirmation by district court.
``1509. Relationship to other district court actions.
``1510. Implementation by Copyright Office.
``1511. Funding.
``Sec. 1501. Definitions
``In this chapter--
``(1) the term `party'--
``(A) means a party; and
``(B) includes the attorney of a party, as
applicable;
``(2) the term `claimant' means the real party in interest
that commences a proceeding before the Copyright Claims Board
under section 1506(e), pursuant to a permissible claim of
infringement brought under section 1504(c)(1), noninfringement
brought under section 1504(c)(2), or misrepresentation brought
under section 1504(c)(3);
``(3) the term `counterclaimant' means a respondent in a
proceeding before the Copyright Claims Board that--
``(A) asserts a permissible counterclaim under
section 1504(c)(4) against the claimant in the
proceeding; and
``(B) is the real party in interest with respect to
the counterclaim described in subparagraph (A); and
``(4) the term `respondent' means any person against whom a
proceeding is brought before the Copyright Claims Board under
section 1506(e), pursuant to a permissible claim of
infringement brought under section 1504(c)(1), noninfringement
brought under section 1504(c)(2), or misrepresentation brought
under section 1504(c)(3).
``Sec. 1502. Copyright Claims Board
``(a) In General.--There is established in the Copyright Office the
Copyright Claims Board, which shall serve as an alternative forum in
which parties may voluntarily seek to resolve certain copyright claims
regarding any category of copyrighted work, as provided in this
chapter.
``(b) Officers and Staff.--
``(1) Copyright claims officers.--The Register of
Copyrights shall recommend 3 full-time Copyright Claims
Officers to serve on the Copyright Claims Board in accordance
with paragraph (3)(A). The Officers shall be appointed by the
Librarian of Congress to such positions after consultation with
the Register of Copyrights.
``(2) Copyright claims attorneys.--The Register of
Copyrights shall hire not fewer than 2 full-time Copyright
Claims Attorneys to assist in the administration of the
Copyright Claims Board.
``(3) Qualifications.--
``(A) Copyright claims officers.--
``(i) In general.--Each Copyright Claims
Officer shall be an attorney who has not fewer
than 7 years of legal experience.
``(ii) Experience.--Two of the Copyright
Claims Officers shall have--
``(I) substantial experience in the
evaluation, litigation, or adjudication
of copyright infringement claims; and
``(II) between those 2 Officers,
have represented or presided over a
diversity of copyright interests,
including those of both owners and
users of copyrighted works.
``(iii) Alternative dispute resolution.--
The Copyright Claims Officer not described in
clause (ii) shall have substantial familiarity
with copyright law and experience in the field
of alternative dispute resolution, including
the resolution of litigation matters through
that method of resolution.
``(B) Copyright claims attorneys.--Each Copyright
Claims Attorney shall be an attorney who has not fewer
than 3 years of substantial experience in copyright
law.
``(4) Compensation.--
``(A) Copyright claims officers.--
``(i) Definition.--In this subparagraph,
the term `senior level employee of the Federal
Government' means an employee, other than an
employee in the Senior Executive Service, the
position of whom is classified above GS-15 of
the General Schedule.
``(ii) Pay range.--Each Copyright Claims
Officer shall be compensated at a rate of pay
that is not less than the minimum, and not more
than the maximum, rate of pay payable for
senior level employees of the Federal
Government, including locality pay, as
applicable.
``(B) Copyright claims attorneys.--Each Copyright
Claims Attorney shall be compensated at a rate of pay
that is not more than the maximum rate of pay payable
for level 10 of GS-15 of the General Schedule,
including locality pay, as applicable.
``(5) Terms.--
``(A) In general.--Subject to subparagraph (B), a
Copyright Claims Officer shall serve for a renewable
term of 6 years.
``(B) Initial terms.--The terms for the first
Copyright Claims Officers appointed under this chapter
shall be as follows:
``(i) The first such Copyright Claims
Officer appointed shall be appointed for a term
of 4 years.
``(ii) The second Copyright Claims Officer
appointed shall be appointed for a term of 5
years.
``(iii) The third Copyright Claims Officer
appointed shall be appointed for a term of 6
years.
``(6) Vacancies and incapacity.--
``(A) Vacancy.--
``(i) In general.--If a vacancy occurs in
the position of a Copyright Claims Officer, the
Librarian of Congress shall, upon the
recommendation of, and in consultation with,
the Register of Copyrights, act expeditiously
to appoint a Copyright Claims Officer for that
position.
``(ii) Vacancy before expiration.--An
individual appointed to fill a vacancy
occurring before the expiration of the term for
which the predecessor of the individual was
appointed shall be appointed to serve a 6-year
term.
``(B) Incapacity.--If a Copyright Claims Officer is
temporarily unable to perform the duties of the
Officer, the Librarian of Congress shall, upon
recommendation of, and in consultation with, the
Register of Copyrights, act expeditiously to appoint an
interim Copyright Claims Officer to perform such duties
during the period of such incapacity.
``(7) Sanction or removal.--Subject to section 1503(b), the
Librarian of Congress may sanction or remove a Copyright Claims
Officer.
``(8) Administrative support.--The Register of Copyrights
shall provide the Copyright Claims Officers and Copyright
Claims Attorneys with necessary administrative support,
including technological facilities, to carry out the duties of
the Officers and Attorneys under this chapter.
``(9) Location of copyright claims board.--The offices and
facilities of the Copyright Claims Officers and Copyright
Claims Attorneys shall be located at the Copyright Office.
``Sec. 1503. Authority and duties of the Copyright Claims Board
``(a) Functions.--
``(1) Copyright claims officers.--Subject to the provisions
of this chapter and applicable regulations, the functions of
the Copyright Claims Officers shall be as follows:
``(A) To render determinations on the civil
copyright claims, counterclaims, and defenses that may
be brought before the Officers under this chapter.
``(B) To ensure that claims, counterclaims, and
defenses are properly asserted and otherwise
appropriate for resolution by the Copyright Claims
Board.
``(C) To manage the proceedings before the Officers
and render rulings pertaining to the consideration of
claims, counterclaims, and defenses, including with
respect to scheduling, discovery, evidentiary, and
other matters.
``(D) To request, from participants and
nonparticipants in a proceeding, the production of
information and documents relevant to the resolution of
a claim, counterclaim, or defense.
``(E) To conduct hearings and conferences.
``(F) To facilitate the settlement by the parties
of claims and counterclaims.
``(G)(i) To award monetary relief; and
``(ii) to include in the determinations of the
Officers a requirement that certain activities under
section 1504(e)(2) cease or be mitigated, if the party
to undertake the applicable measure has so agreed.
``(H) To provide information to the public
concerning the procedures and requirements of the
Copyright Claims Board.
``(I) To maintain records of the proceedings before
the Officers, certify official records of such
proceedings as needed, and, as provided in section
1506(t), make the records in such proceedings available
to the public.
``(J) To carry out such other duties as are set
forth in this chapter.
``(K) When not engaged in performing the duties of
the Officers set forth in this chapter, to perform such
other duties as may be assigned by the Register of
Copyrights.
``(2) Copyright claims attorneys.--Subject to the
provisions of this chapter and applicable regulations, the
functions of the Copyright Claims Attorneys shall be as
follows:
``(A) To provide assistance to the Copyright Claims
Officers in the administration of the duties of those
Officers under this chapter.
``(B) To provide assistance to members of the
public with respect to the procedures and requirements
of the Copyright Claims Board.
``(C) To provide information to potential claimants
contemplating bringing a permissible action before the
Copyright Claims Board about obtaining a subpoena under
section 512(h) for the sole purpose of identifying a
potential respondent in such an action.
``(D) When not engaged in performing the duties of
the Attorneys set forth in this chapter, to perform
such other duties as may be assigned by the Register of
Copyrights.
``(b) Independence in Determinations.--
``(1) In general.--The Copyright Claims Board shall render
the determinations of the Board in individual proceedings
independently on the basis of the records in the proceedings
before it and in accordance with the provisions of this title,
judicial precedent, and applicable regulations of the Register
of Copyrights.
``(2) Consultation.--The Copyright Claims Officers and
Copyright Claims Attorneys--
``(A) may consult with the Register of Copyrights
on general issues of law; and
``(B) subject to section 1506(x), may not consult
with the Register of Copyrights with respect to--
``(i) the facts of any particular matter
pending before the Officers and the Attorneys;
or
``(ii) the application of law to the facts
described in clause (i).
``(3) Performance appraisals.--Notwithstanding any other
provision of law or any regulation or policy of the Library of
Congress or Register of Copyrights, any performance appraisal
of a Copyright Claims Officer or Copyright Claims Attorney may
not consider the substantive result of any individual
determination reached by the Copyright Claims Board as a basis
for appraisal except to the extent that result may relate to
any actual or alleged violation of an ethical standard of
conduct.
``(c) Direction by Register.--Subject to subsection (b), the
Copyright Claims Officers and Copyright Claims Attorneys shall, in the
administration of their duties, be under the general direction of the
Register of Copyrights.
``(d) Inconsistent Duties Barred.--A Copyright Claims Officer or
Copyright Claims Attorney may not undertake any duty that conflicts
with the duties of the Officer or Attorney in connection with the
Copyright Claims Board.
``(e) Recusal.--A Copyright Claims Officer or Copyright Claims
Attorney shall recuse himself or herself from participation in any
proceeding with respect to which the Copyright Claims Officer or
Copyright Claims Attorney, as the case may be, has reason to believe
that he or she has a conflict of interest.
``(f) Ex Parte Communications.--Except as may otherwise be
permitted by applicable law, any party to a proceeding before the
Copyright Claims Board shall refrain from ex parte communications with
the Copyright Claims Officers and the Register of Copyrights concerning
the substance of any active or pending proceeding before the Copyright
Claims Board.
``(g) Judicial Review.--Actions of the Copyright Claims Officers
and Register of Copyrights under this chapter in connection with the
rendering of any determination are subject to judicial review as
provided under section 1508(c) and not under chapter 7 of title 5.
``Sec. 1504. Nature of proceedings
``(a) Voluntary Participation.--Participation in a Copyright Claims
Board proceeding shall be on a voluntary basis in accordance with this
chapter and the right of any party to instead pursue a claim,
counterclaim, or defense in a district court of the United States or
any other court, and to seek a jury trial, shall be preserved.
``(b) Statute of Limitations.--
``(1) In general.--A proceeding may not be maintained
before the Copyright Claims Board unless the proceeding is
commenced, in accordance with section 1506(e), before the
Copyright Claims Board within 3 years after the claim accrued.
``(2) Tolling.--Subject to section 1507(a), a proceeding
commenced before the Copyright Claims Board shall toll the time
permitted under section 507(b) for the commencement of an
action on the same claim in a district court of the United
States during the period in which the proceeding is pending.
``(c) Permissible Claims, Counterclaims, and Defenses.--The
Copyright Claims Board may render determinations with respect to the
following claims, counterclaims, and defenses, subject to such further
limitations and requirements, including with respect to particular
classes of works, as may be set forth in regulations established by the
Register of Copyrights:
``(1) A claim for infringement of an exclusive right in a
copyrighted work provided under section 106 by the legal or
beneficial owner of the exclusive right at the time of the
infringement for which the claimant seeks damages, if any,
within the limitations set forth in subsection (e)(1).
``(2) A claim for a declaration of noninfringement of an
exclusive right in a copyrighted work provided under section
106, consistent with section 2201 of title 28.
``(3) A claim under section 512(f) for misrepresentation in
connection with a notification of claimed infringement or a
counter notification seeking to replace removed or disabled
material, except that any remedies relating to such a claim in
a proceeding before the Copyright Claims Board shall be limited
to those available under this chapter.
``(4) A counterclaim that is asserted solely against the
claimant in a proceeding--
``(A) pursuant to which the counterclaimant seeks
damages, if any, within the limitations set forth in
subsection (e)(1); and
``(B) that--
``(i) arises under section 106 or section
512(f) and out of the same transaction or
occurrence that is the subject of a claim of
infringement brought under paragraph (1), a
claim of noninfringement brought under
paragraph (2), or a claim of misrepresentation
brought under paragraph (3); or
``(ii) arises under an agreement pertaining
to the same transaction or occurrence that is
the subject of a claim of infringement brought
under paragraph (1), if the agreement could
affect the relief awarded to the claimant.
``(5) A legal or equitable defense under this title or
otherwise available under law, in response to a claim or
counterclaim asserted under this subsection.
``(6) A single claim or multiple claims permitted under
paragraph (1), (2), or (3) by one or more claimants against one
or more respondents, but only if all claims asserted in any one
proceeding arise out of the same allegedly infringing activity
or continuous course of infringing activities and do not, in
the aggregate, result in the recovery of such claim or claims
for damages that exceed the limitations under subsection
(e)(1).
``(d) Excluded Claims.--The following claims and counterclaims are
not subject to determination by the Copyright Claims Board:
``(1) A claim or counterclaim that is not a permissible
claim or counterclaim under subsection (c).
``(2) A claim or counterclaim that has been finally
adjudicated by a court of competent jurisdiction or that is
pending before a court of competent jurisdiction, unless that
court has granted a stay to permit that claim or counterclaim
to proceed before the Copyright Claims Board.
``(3) A claim or counterclaim by or against a Federal or
State governmental entity.
``(4) A claim or counterclaim asserted against a person or
entity residing outside of the United States, except in a case
in which the person or entity initiated the proceeding before
the Copyright Claims Board and is subject to counterclaims
under this chapter.
``(e) Permissible Remedies.--
``(1) Monetary recovery.--
``(A) Actual damages, profits, and statutory
damages for infringement.--With respect to a claim or
counterclaim for infringement of copyright, and subject
to the limitation on total monetary recovery under
subparagraph (D), the Copyright Claims Board may award
either of the following:
``(i) Actual damages and profits determined
in accordance with section 504(b), with that
award taking into consideration, in appropriate
cases, whether the infringing party has agreed
to cease or mitigate the infringing activity
under paragraph (2).
``(ii) Statutory damages, which shall be
determined in accordance with section 504(c),
subject to the following conditions:
``(I) With respect to works timely
registered under section 412, so that
the works are eligible for an award of
statutory damages in accordance with
that section, the statutory damages may
not exceed $15,000 for each work
infringed.
``(II) With respect to works not
timely registered under section 412,
but eligible for an award of statutory
damages under this section, statutory
damages may not exceed $7,500 per work
infringed, or a total of $15,000 in any
1 proceeding.
``(III) The Copyright Claims Board
may not make any finding that, or
consider whether, the infringement was
committed willfully in making an award
of statutory damages.
``(IV) The Copyright Claims Board
may consider, as an additional factor
in awarding statutory damages, whether
the infringer has agreed to cease or
mitigate the infringing activity under
paragraph (2).
``(B) Election of damages.--With respect to a claim
or counterclaim of infringement, at any time before
final determination is rendered, the claimant or
counterclaimant shall, in accordance with the schedule
established by the Copyright Claims Board under section
1506(k), elect--
``(i) to pursue actual damages and profits
or statutory damages under subparagraph (A); or
``(ii) not to pursue damages.
``(C) Damages for other claims.--Damages for claims
and counterclaims other than infringement claims, such
as those brought under section 512(f), shall be subject
to the limitation under subparagraph (D).
``(D) Limitation on total monetary recovery.--
Notwithstanding any other provision of law, a party
that pursues any one or more claims or counterclaims in
any single proceeding before the Copyright Claims Board
may not seek or recover in that proceeding a total
monetary recovery that exceeds the sum of $30,000,
exclusive of any attorneys' fees and costs that may be
awarded under section 1506(y)(2).
``(2) Agreement to cease certain activity.--In a
determination of the Copyright Claims Board, the Board shall
include a requirement to cease conduct if, in the proceeding
relating to the determination--
``(A) a party agrees--
``(i) to cease activity that is found to be
infringing, including removing or disabling
access to, or destroying, infringing materials;
or
``(ii) to cease sending a takedown notice
or counter notice under section 512 to the
other party regarding the conduct at issue
before the Board if that notice or counter
notice was found to be a knowing material
misrepresentation under section 512(f); and
``(B) the agreement described in subparagraph (A)
is reflected in the record for the proceeding.
``(3) Attorneys' fees and costs.--Notwithstanding any other
provision of law, except in the case of bad faith conduct as
provided in section 1506(y)(2), the parties to proceedings
before the Copyright Claims Board shall bear their own
attorneys' fees and costs.
``(f) Joint and Several Liability.--Parties to a proceeding before
the Copyright Claims Board may be found jointly and severally liable if
all such parties and relevant claims or counterclaims arise from the
same activity or activities.
``(g) Permissible Number of Cases.--The Register of Copyrights may
establish regulations relating to the permitted number of proceedings
each year by the same claimant under this chapter, in the interests of
justice and the administration of the Copyright Claims Board.
``Sec. 1505. Registration requirement
``(a) Application or Certificate.--A claim or counterclaim alleging
infringement of an exclusive right in a copyrighted work may not be
asserted before the Copyright Claims Board unless--
``(1) the legal or beneficial owner of the copyright has
first delivered a completed application, a deposit, and the
required fee for registration of the copyright to the Copyright
Office; and
``(2) a registration certificate has either been issued or
has not been refused.
``(b) Certificate of Registration.--Notwithstanding any other
provision of law, a claimant or counterclaimant in a proceeding before
the Copyright Claims Board shall be eligible to recover actual damages
and profits or statutory damages under this chapter for infringement of
a work if the requirements of subsection (a) have been met, except
that--
``(1) the Copyright Claims Board may not render a
determination in the proceeding until--
``(A) a registration certificate with respect to
the work has been issued by the Copyright Office,
submitted to the Copyright Claims Board, and made
available to the other parties to the proceeding; and
``(B) the other parties to the proceeding have been
provided an opportunity to address the registration
certificate;
``(2) if the proceeding may not proceed further because a
registration certificate for the work is pending, the
proceeding shall be held in abeyance pending submission of the
certificate to the Copyright Claims Board, except that, if the
proceeding is held in abeyance for more than 1 year, the
Copyright Claims Board may, upon providing written notice to
the parties to the proceeding, and 30 days to the parties to
respond to the notice, dismiss the proceeding without
prejudice; and
``(3) if the Copyright Claims Board receives notice that
registration with respect to the work has been refused, the
proceeding shall be dismissed without prejudice.
``(c) Presumption.--In a case in which a registration certificate
shows that registration with respect to a work was issued not later
than 5 years after the date of the first publication of the work, the
presumption under section 410(c) shall apply in a proceeding before the
Copyright Claims Board, in addition to relevant principles of law under
this title.
``(d) Regulations.--In order to ensure that actions before the
Copyright Claims Board proceed in a timely manner, the Register of
Copyrights shall establish regulations allowing the Copyright Office to
make a decision, on an expedited basis, to issue or deny copyright
registration for an unregistered work that is at issue before the
Board.
``Sec. 1506. Conduct of proceedings
``(a) In General.--
``(1) Applicable law.--Proceedings of the Copyright Claims
Board shall be conducted in accordance with this chapter and
regulations established by the Register of Copyrights under
this chapter, in addition to relevant principles of law under
this title.
``(2) Conflicting precedent.--If it appears that there may
be conflicting judicial precedent on an issue of substantive
copyright law that cannot be reconciled, the Copyright Claims
Board shall follow the law of the Federal jurisdiction in which
the action could have been brought if filed in a district court
of the United States, or, if the action could have been brought
in more than 1 such jurisdiction, the jurisdiction that the
Copyright Claims Board determines has the most significant ties
to the parties and conduct at issue.
``(b) Record.--The Copyright Claims Board shall maintain records
documenting the proceedings before the Board.
``(c) Centralized Process.--Proceedings before the Copyright Claims
Board shall--
``(1) be conducted at the offices of the Copyright Claims
Board without the requirement of in-person appearances by
parties or others; and
``(2) take place by means of written submissions, hearings,
and conferences carried out through internet-based applications
and other telecommunications facilities, except that, in cases
in which physical or other nontestimonial evidence material to
a proceeding cannot be furnished to the Copyright Claims Board
through available telecommunications facilities, the Copyright
Claims Board may make alternative arrangements for the
submission of such evidence that do not prejudice any other
party to the proceeding.
``(d) Representation.--A party to a proceeding before the Copyright
Claims Board may be, but is not required to be, represented by--
``(1) an attorney; or
``(2) a law student who is qualified under applicable law
governing representation by law students of parties in legal
proceedings and who provides such representation on a pro bono
basis.
``(e) Commencement of Proceeding.--In order to commence a
proceeding under this chapter, a claimant shall, subject to such
additional requirements as may be prescribed in regulations established
by the Register of Copyrights, file a claim with the Copyright Claims
Board, that--
``(1) includes a statement of material facts in support of
the claim;
``(2) is certified under subsection (y)(1); and
``(3) is accompanied by a filing fee in such amount as may
be prescribed in regulations established by the Register of
Copyrights.
``(f) Review of Claims and Counterclaims.--
``(1) Claims.--Upon the filing of a claim under subsection
(e), the claim shall be reviewed by a Copyright Claims Attorney
to ensure that the claim complies with this chapter and
applicable regulations, subject to the following:
``(A) If the claim is found to comply, the claimant
shall be notified regarding that compliance and
instructed to proceed with service of the claim under
subsection (g).
``(B) If the claim is found not to comply, the
claimant shall be notified that the claim is deficient
and be permitted to file an amended claim not later
than 30 days after the date on which the claimant
receives the notice, without the requirement of an
additional filing fee. If the claimant files a
compliant claim within that 30-day period, the claimant
shall be so notified and be instructed to proceed with
service of the claim. If the claim is refiled within
that 30-day period and still fails to comply, the
claimant shall again be notified that the claim is
deficient and shall be provided a second opportunity to
amend the claim within 30 days after the date of that
second notice, without the requirement of an additional
filing fee. If the claim is refiled again within that
second 30-day period and is compliant, the claimant
shall be so notified and shall be instructed to proceed
with service of the claim, but if the claim still fails
to comply, upon confirmation of such noncompliance by a
Copyright Claims Officer, the proceeding shall be
dismissed without prejudice. The Copyright Claims Board
shall also dismiss without prejudice any proceeding in
which a compliant claim is not filed within the
applicable 30-day period.
``(C)(i) Subject to clause (ii), for purposes of
this paragraph, a claim against an online service
provider for infringement by reason of the storage of
or referral or linking to infringing material that may
be subject to the limitations on liability set forth in
subsection (b), (c), or (d) of section 512 shall be
considered noncompliant unless the claimant affirms in
the statement required under subsection (e)(1) of this
section that the claimant has previously notified the
service provider of the claimed infringement in
accordance with subsection (b)(2)(E), (c)(3), or (d)(3)
of section 512, as applicable, and the service provider
failed to remove or disable access to the material
expeditiously upon the provision of such notice.
``(ii) If a claim is found to be noncompliant under
clause (i), the Copyright Claims Board shall provide
the claimant with information concerning the service of
such a notice under the applicable provision of section
512.
``(2) Counterclaims.--Upon the filing and service of a
counterclaim, the counterclaim shall be reviewed by a Copyright
Claims Attorney to ensure that the counterclaim complies with
the provisions of this chapter and applicable regulations. If
the counterclaim is found not to comply, the counterclaimant
and the other parties to the proceeding shall be notified that
the counterclaim is deficient, and the counterclaimant shall be
permitted to file and serve an amended counterclaim within 30
days after the date of such notice. If the counterclaimant
files and serves a compliant counterclaim within that 30-day
period, the counterclaimant and such other parties shall be so
notified. If the counterclaim is refiled and served within that
30-day period but still fails to comply, the counterclaimant
and such other parties shall again be notified that the
counterclaim is deficient, and the counterclaimant shall be
provided a second opportunity to amend the counterclaim within
30 days after the date of the second notice. If the
counterclaim is refiled and served again within that second 30-
day period and is compliant, the counterclaimant and such other
parties shall be so notified, but if the counterclaim still
fails to comply, upon confirmation of such noncompliance by a
Copyright Claims Officer, the counterclaim, but not the
proceeding, shall be dismissed without prejudice.
``(3) Dismissal of unsuitability.--The Copyright Claims
Board shall dismiss a claim or counterclaim without prejudice
if, upon reviewing the claim or counterclaim, or at any other
time in the proceeding, the Copyright Claims Board concludes
that the claim or counterclaim is unsuitable for determination
by the Copyright Claims Board, including on account of any of
the following:
``(A) The failure to join a necessary party.
``(B) The lack of an essential witness, evidence,
or expert testimony.
``(C) The determination of a relevant issue of law
or fact that could exceed either the number of
proceedings the Copyright Claims Board could reasonably
administer or the subject matter competence of the
Copyright Claims Board.
``(g) Service of Notice and Claims.--In order to proceed with a
claim against a respondent, a claimant shall, within 90 days after
receiving notification under subsection (f) to proceed with service,
file with the Copyright Claims Board proof of service on the
respondent. In order to effectuate service on a respondent, the
claimant shall cause notice of the proceeding and a copy of the claim
to be served on the respondent, either by personal service or pursuant
to a waiver of personal service, as prescribed in regulations
established by the Register of Copyrights. Such regulations shall
include the following requirements:
``(1) The notice of the proceeding shall adhere to a
prescribed form and shall set forth the nature of the Copyright
Claims Board and proceeding, the right of the respondent to opt
out, and the consequences of opting out and not opting out,
including a prominent statement that, by not opting out within
60 days after receiving the notice, the respondent--
``(A) loses the opportunity to have the dispute
decided by a court created under article III of the
Constitution of the United States; and
``(B) waives the right to a jury trial regarding
the dispute.
``(2) The copy of the claim served on the respondent shall
be the same as the claim that was filed with the Copyright
Claims Board.
``(3) Personal service of a notice and claim may be
effected by an individual who is not a party to the proceeding
and is older than 18 years of age.
``(4) An individual, other than a minor or incompetent
individual, may be served by--
``(A) complying with State law for serving a
summons in an action brought in courts of general
jurisdiction in the State where service is made;
``(B) delivering a copy of the notice and claim to
the individual personally;
``(C) leaving a copy of the notice and claim at the
individual's dwelling or usual place of abode with
someone of suitable age and discretion who resides
there; or
``(D) delivering a copy of the notice and claim to
an agent designated by the respondent to receive
service of process or, if not so designated, an agent
authorized by appointment or by law to receive service
of process.
``(5)(A) A corporation, partnership, or unincorporated
association that is subject to suit in courts of general
jurisdiction under a common name shall be served by delivering
a copy of the notice and claim to its service agent. If such
service agent has not been designated, service shall be
accomplished--
``(i) by complying with State law for serving a
summons in an action brought in courts of general
jurisdiction in the State where service is made; or
``(ii) by delivering a copy of the notice and claim
to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to
receive service of process in an action brought in
courts of general jurisdiction in the State where
service is made and, if the agent is one authorized by
statute and the statute so requires, by also mailing a
copy of the notice and claim to the respondent.
``(B) A corporation, partnership, or unincorporated
association that is subject to suit in courts of general
jurisdiction under a common name may elect to designate a
service agent to receive notice of a claim against it before
the Copyright Claims Board by complying with requirements that
the Register of Copyrights shall establish by regulation. The
Register of Copyrights shall maintain a current directory of
service agents that is available to the public for inspection,
including through the internet, and may require such
corporations, partnerships, and unincorporated associations
designating such service agents to pay a fee to cover the costs
of maintaining the directory.
``(6) In order to request a waiver of personal service, the
claimant may notify a respondent, by first class mail or by
other reasonable means, that a proceeding has been commenced,
such notice to be made in accordance with regulations
established by the Register of Copyrights, subject to the
following:
``(A) Any such request shall be in writing, shall
be addressed to the respondent, and shall be
accompanied by a prescribed notice of the proceeding, a
copy of the claim as filed with the Copyright Claims
Board, a prescribed form for waiver of personal
service, and a prepaid or other means of returning the
form without cost.
``(B) The request shall state the date on which the
request is sent, and shall provide the respondent a
period of 30 days, beginning on the date on which the
request is sent, to return the waiver form signed by
the respondent. The signed waiver form shall, for
purposes of this subsection, constitute acceptance and
proof of service as of the date on which the waiver is
signed.
``(7)(A) A respondent's waiver of personal service shall
not constitute a waiver of the respondent's right to opt out of
the proceeding.
``(B) A respondent who timely waives personal service under
paragraph (6) and does not opt out of the proceeding shall be
permitted a period of 30 days, in addition to the period
otherwise permitted under the applicable procedures of the
Copyright Claims Board, to submit a substantive response to the
claim, including any defenses and counterclaims.
``(8) A minor or an incompetent individual may only be
served by complying with State law for serving a summons or
like process on such an individual in an action brought in the
courts of general jurisdiction of the State where service is
made.
``(9) Service of a claim and waiver of personal service may
only be effected within the United States.
``(h) Notification by Copyright Claims Board.--The Register of
Copyrights shall establish regulations providing for a written
notification to be sent by, or on behalf of, the Copyright Claims Board
to notify the respondent of a pending proceeding against the
respondent, as set forth in those regulations, which shall--
``(1) include information concerning the respondent's right
to opt out of the proceeding, the consequences of opting out
and not opting out, and a prominent statement that, by not
opting out within 60 days after the date of service under
subsection (g), the respondent loses the opportunity to have
the dispute decided by a court created under article III of the
Constitution of the United States and waives the right to a
jury trial regarding the dispute; and
``(2) be in addition to, and separate and apart from, the
notice requirements under subsection (g).
``(i) Opt-Out Procedure.--Upon being properly served with a notice
and claim, a respondent who chooses to opt out of the proceeding shall
have a period of 60 days, beginning on the date of service, in which to
provide written notice of such choice to the Copyright Claims Board, in
accordance with regulations established by the Register of Copyrights.
If proof of service has been filed by the claimant and the respondent
does not submit an opt-out notice to the Copyright Claims Board within
that 60-day period, the proceeding shall be deemed an active proceeding
and the respondent shall be bound by the determination in the
proceeding to the extent provided under section 1507(a). If the
respondent opts out of the proceeding during that 60-day period, the
proceeding shall be dismissed without prejudice, except that, in
exceptional circumstances and upon written notice to the claimant, the
Copyright Claims Board may extend that 60-day period in the interests
of justice.
``(j) Service of Other Documents.--Documents submitted or relied
upon in a proceeding, other than the notice and claim, shall be served
in accordance with regulations established by the Register of
Copyrights.
``(k) Scheduling.--Upon confirmation that a proceeding has become
an active proceeding, the Copyright Claims Board shall issue a schedule
for the future conduct of the proceeding. A schedule issued by the
Copyright Claims Board may be amended by the Copyright Claims Board in
the interests of justice.
``(l) Conferences.--One or more Copyright Claims Officers may hold
a conference to address case management or discovery issues in a
proceeding, which shall be noted upon the record of the proceeding and
may be recorded or transcribed.
``(m) Party Submissions.--A proceeding of the Copyright Claims
Board may not include any formal motion practice, except that, subject
to applicable regulations and procedures of the Copyright Claims
Board--
``(1) the parties to the proceeding may make requests to
the Copyright Claims Board to address case management and
discovery matters, and submit responses thereto; and
``(2) the Copyright Claims Board may request or permit
parties to make submissions addressing relevant questions of
fact or law, or other matters, including matters raised sua
sponte by the Copyright Claims Officers, and offer responses
thereto.
``(n) Discovery.--Discovery in a proceeding shall be limited to the
production of relevant information and documents, written
interrogatories, and written requests for admission, as provided in
regulations established by the Register of Copyrights, except that--
``(1) upon the request of a party, and for good cause
shown, the Copyright Claims Board may approve additional
relevant discovery, on a limited basis, in particular matters,
and may request specific information and documents from
participants in the proceeding and voluntary submissions from
nonparticipants, consistent with the interests of justice;
``(2) upon the request of a party, and for good cause
shown, the Copyright Claims Board may issue a protective order
to limit the disclosure of documents or testimony that contain
confidential information; and
``(3) after providing notice and an opportunity to respond,
and upon good cause shown, the Copyright Claims Board may apply
an adverse inference with respect to disputed facts against a
party who has failed to timely provide discovery materials in
response to a proper request for materials that could be
relevant to such facts.
``(o) Evidence.--The Copyright Claims Board may consider the
following types of evidence in a proceeding, and such evidence may be
admitted without application of formal rules of evidence:
``(1) Documentary and other nontestimonial evidence that is
relevant to the claims, counterclaims, or defenses in the
proceeding.
``(2) Testimonial evidence, submitted under penalty of
perjury in written form or in accordance with subsection (p),
limited to statements of the parties and nonexpert witnesses,
that is relevant to the claims, counterclaims, and defenses in
a proceeding, except that, in exceptional cases, expert witness
testimony or other types of testimony may be permitted by the
Copyright Claims Board for good cause shown.
``(p) Hearings.--The Copyright Claims Board may conduct a hearing
to receive oral presentations on issues of fact or law from parties and
witnesses to a proceeding, including oral testimony, subject to the
following:
``(1) Any such hearing shall be attended by not fewer than
two of the Copyright Claims Officers.
``(2) The hearing shall be noted upon the record of the
proceeding and, subject to paragraph (3), may be recorded or
transcribed as deemed necessary by the Copyright Claims Board.
``(3) A recording or transcript of the hearing shall be
made available to any Copyright Claims Officer who is not in
attendance.
``(q) Voluntary Dismissal.--
``(1) By claimant.--Upon the written request of a claimant
that is received before a respondent files a response to the
claim in a proceeding, the Copyright Claims Board shall dismiss
the proceeding, or a claim or respondent, as requested, without
prejudice.
``(2) By counterclaimant.--Upon written request of a
counterclaimant that is received before a claimant files a
response to the counterclaim, the Copyright Claims Board shall
dismiss the counterclaim, such dismissal to be without
prejudice.
``(3) Class actions.--Any party in an active proceeding
before the Copyright Claims Board who receives notice of a
pending or putative class action, arising out of the same
transaction or occurrence, in which that party is a class
member may request in writing dismissal of the proceeding
before the Board. Upon notice to all claimants and
counterclaimants, the Copyright Claims Board shall dismiss the
proceeding without prejudice.
``(r) Settlement.--
``(1) In general.--At any time in an active proceeding,
some or all of the parties may--
``(A) jointly request a conference with a Copyright
Claims Officer for the purpose of facilitating
settlement discussions; or
``(B) submit to the Copyright Claims Board an
agreement providing for settlement and dismissal of
some or all of the claims and counterclaims in the
proceeding.
``(2) Additional request.--A submission under paragraph
(1)(B) may include a request that the Copyright Claims Board
adopt some or all of the terms of the parties' settlement in a
final determination in the proceeding.
``(s) Factual Findings.--Subject to subsection (n)(3), the
Copyright Claims Board shall make factual findings based upon a
preponderance of the evidence.
``(t) Determinations.--
``(1) Nature and contents.--A determination rendered by the
Copyright Claims Board in a proceeding shall--
``(A) be reached by a majority of the Copyright
Claims Board;
``(B) be in writing, and include an explanation of
the factual and legal basis of the determination;
``(C) set forth any terms by which a respondent or
counterclaim respondent has agreed to cease infringing
activity under section 1504(e)(2);
``(D) to the extent requested under subsection
(r)(2), set forth the terms of any settlement agreed to
under subsection (r)(1); and
``(E) include a clear statement of all damages and
other relief awarded, including under subparagraphs (C)
and (D).
``(2) Dissent.--A Copyright Claims Officer who dissents
from a decision contained in a determination under paragraph
(1) may append a statement setting forth the grounds for that
dissent.
``(3) Publication.--Each final determination of the
Copyright Claims Board shall be made available on a publicly
accessible website. The Register shall establish regulations
with respect to the publication of other records and
information relating to such determinations, including the
redaction of records to protect confidential information that
is the subject of a protective order under subsection (n)(2).
``(4) Freedom of information act.--All information relating
to proceedings of the Copyright Claims Board under this title
is exempt from disclosure to the public under section 552(b)(3)
of title 5, except for determinations, records, and information
published under paragraph (3).
``(u) Respondent's Default.--If a proceeding has been deemed an
active proceeding but the respondent has failed to appear or has ceased
participating in the proceeding, as demonstrated by the respondent's
failure, without justifiable cause, to meet one or more deadlines or
requirements set forth in the schedule adopted by the Copyright Claims
Board under subsection (k), the Copyright Claims Board may enter a
default determination, including the dismissal of any counterclaim
asserted by the respondent, as follows and in accordance with such
other requirements as the Register of Copyrights may establish by
regulation:
``(1) The Copyright Claims Board shall require the claimant
to submit relevant evidence and other information in support of
the claimant's claim and any asserted damages and, upon review
of such evidence and any other requested submissions from the
claimant, shall determine whether the materials so submitted
are sufficient to support a finding in favor of the claimant
under applicable law and, if so, the appropriate relief and
damages, if any, to be awarded.
``(2) If the Copyright Claims Board makes an affirmative
determination under paragraph (1), the Copyright Claims Board
shall prepare a proposed default determination, and shall
provide written notice to the respondent at all addresses,
including email addresses, reflected in the records of the
proceeding before the Copyright Claims Board, of the pendency
of a default determination by the Copyright Claims Board and of
the legal significance of such determination. Such notice shall
be accompanied by the proposed default determination and shall
provide that the respondent has a period of 30 days, beginning
on the date of the notice, to submit any evidence or other
information in opposition to the proposed default
determination.
``(3) If the respondent responds to the notice provided
under paragraph (2) within the 30-day period provided in such
paragraph, the Copyright Claims Board shall consider
respondent's submissions and, after allowing the other parties
to address such submissions, maintain, or amend its proposed
determination as appropriate, and the resulting determination
shall not be a default determination.
``(4) If the respondent fails to respond to the notice
provided under paragraph (2), the Copyright Claims Board shall
proceed to issue the default determination as a final
determination. Thereafter, the respondent may only challenge
such determination to the extent permitted under section
1508(c), except that, before any additional proceedings are
initiated under section 1508, the Copyright Claims Board may,
in the interests of justice, vacate the default determination.
``(v) Claimant's Failure To Proceed.--
``(1) Failure to complete service.--If a claimant fails to
complete service on a respondent within the 90-day period
required under subsection (g), the Copyright Claims Board shall
dismiss that respondent from the proceeding without prejudice.
If a claimant fails to complete service on all respondents
within that 90-day period, the Copyright Claims Board shall
dismiss the proceeding without prejudice.
``(2) Failure to prosecute.--If a claimant fails to proceed
in an active proceeding, as demonstrated by the claimant's
failure, without justifiable cause, to meet one or more
deadlines or requirements set forth in the schedule adopted by
the Copyright Claims Board under subsection (k), the Copyright
Claims Board may, upon providing written notice to the claimant
and a period of 30 days, beginning on the date of the notice,
to respond to the notice, and after considering any such
response, issue a determination dismissing the claimants'
claims, which shall include an award of attorneys' fees and
costs, if appropriate, under subsection (y)(2). Thereafter, the
claimant may only challenge such determination to the extent
permitted under section 1508(c), except that, before any
additional proceedings are initiated under section 1508, the
Copyright Claims Board may, in the interests of justice, vacate
the determination of dismissal.
``(w) Request for Reconsideration.--A party may, within 30 days
after the date on which the Copyright Claims Board issues a final
determination in a proceeding under this chapter, submit a written
request for reconsideration of, or an amendment to, such determination
if the party identifies a clear error of law or fact material to the
outcome, or a technical mistake. After providing the other parties an
opportunity to address such request, the Copyright Claims Board shall
either deny the request or issue an amended final determination.
``(x) Review by Register.--If the Copyright Claims Board denies a
party a request for reconsideration of a final determination under
subsection (w), that party may, within 30 days after the date of such
denial, request review of the final determination by the Register of
Copyrights in accordance with regulations established by the Register.
Such request shall be accompanied by a reasonable filing fee, as
provided in such regulations. The review by the Register shall be
limited to consideration of whether the Copyright Claims Board abused
its discretion in denying reconsideration of the determination. After
providing the other parties an opportunity to address the request, the
Register shall either deny the request for review, or remand the
proceeding to the Copyright Claims Board for reconsideration of issues
specified in the remand and for issuance of an amended final
determination. Such amended final determination shall not be subject to
further consideration or review, other than under section 1508(c).
``(y) Conduct of Parties and Attorneys.--
``(1) Certification.--The Register of Copyrights shall
establish regulations requiring certification of the accuracy
and truthfulness of statements made by participants in
proceedings before the Copyright Claims Board.
``(2) Bad faith conduct.--Notwithstanding any other
provision of law, in any proceeding in which a determination is
rendered and it is established that a party pursued a claim,
counterclaim, or defense for a harassing or other improper
purpose, or without a reasonable basis in law or fact, then,
unless inconsistent with the interests of justice, the
Copyright Claims Board shall in such determination award
reasonable attorneys' fees and costs to any adversely affected
party of in an amount of not more than $5,000, except that--
``(A) if an adversely affected party appeared pro
se in the proceeding, the award to that party shall be
for costs only, in an amount of not more than $2,500;
and
``(B) in extraordinary circumstances, such as where
a party has demonstrated a pattern or practice of bad
faith conduct as described in this paragraph, the
Copyright Claims Board may, in the interests of
justice, award costs in excess of the limitations under
this paragraph.
``(3) Additional penalty.--If the Board finds that on more
than one occasion within a 12-month period a party pursued a
claim, counterclaim, or defense before the Copyright Claims
Board for a harassing or other improper purpose, or without a
reasonable basis in law or fact, that party shall be barred
from initiating a claim before the Copyright Claims Board under
this chapter for a period of 12 months beginning on the date on
which the Board makes such a finding. Any proceeding commenced
by that party that is still pending before the Board when such
a finding is made shall be dismissed without prejudice, except
that if a proceeding has been deemed active under subsection
(i), the proceeding shall be dismissed under this paragraph
only if the respondent provides written consent thereto.
``(z) Regulations for Smaller Claims.--The Register of Copyrights
shall establish regulations to provide for the consideration and
determination, by at least one Copyright Claims Officer, of any claim
under this chapter in which total damages sought do not exceed $5,000
(exclusive of attorneys' fees and costs). A determination issued under
this subsection shall have the same effect as a determination issued by
the entire Copyright Claims Board.
``Sec. 1507. Effect of proceeding
``(a) Determination.--Subject to the reconsideration and review
processes provided under subsections (w) and (x) of section 1506 and
section 1508(c), the issuance of a final determination by the Copyright
Claims Board in a proceeding, including a default determination or
determination based on a failure to prosecute, shall, solely with
respect to the parties to such determination, preclude relitigation
before any court or tribunal, or before the Copyright Claims Board, of
the claims and counterclaims asserted and finally determined by the
Board, and may be relied upon for such purpose in a future action or
proceeding arising from the same specific activity or activities,
subject to the following:
``(1) A determination of the Copyright Claims Board shall
not preclude litigation or relitigation as between the same or
different parties before any court or tribunal, or the
Copyright Claims Board, of the same or similar issues of fact
or law in connection with claims or counterclaims not asserted
or not finally determined by the Copyright Claims Board.
``(2) A determination of ownership of a copyrighted work
for purposes of resolving a matter before the Copyright Claims
Board may not be relied upon, and shall not have any preclusive
effect, in any other action or proceeding before any court or
tribunal, including the Copyright Claims Board.
``(3) Except to the extent permitted under this subsection
and section 1508, any determination of the Copyright Claims
Board may not be cited or relied upon as legal precedent in any
other action or proceeding before any court or tribunal,
including the Copyright Claims Board.
``(b) Class Actions Not Affected.--
``(1) In general.--A proceeding before the Copyright Claims
Board shall not have any effect on a class action proceeding in
a district court of the United States, and section 1509(a)
shall not apply to a class action proceeding in a district
court of the United States.
``(2) Notice of class action.--Any party to an active
proceeding before the Copyright Claims Board who receives
notice of a pending class action, arising out of the same
transaction or occurrence as the proceeding before the
Copyright Claims Board, in which the party is a class member
shall either--
``(A) opt out of the class action, in accordance
with regulations established by the Register of
Copyrights; or
``(B) seek dismissal under section 1506(q)(3) of
the proceeding before the Copyright Claims Board.
``(c) Other Materials in Proceeding.--Except as permitted under
this section and section 1508, a submission or statement of a party or
witness made in connection with a proceeding before the Copyright
Claims Board, including a proceeding that is dismissed, may not be
cited or relied upon in, or serve as the basis of, any action or
proceeding concerning rights or limitations on rights under this title
before any court or tribunal, including the Copyright Claims Board.
``(d) Applicability of Section 512(g).--A claim or counterclaim
before the Copyright Claims Board that is brought under subsection
(c)(1) or (c)(4) of section 1504, or brought under subsection (c)(6) of
section 1504 and that relates to a claim under subsection (c)(1) or
(c)(4) of such section, qualifies as an action seeking an order to
restrain a subscriber from engaging in infringing activity under
section 512(g)(2)(C) if--
``(1) notice of the commencement of the Copyright Claims
Board proceeding is provided by the claimant to the service
provider's designated agent before the service provider
replaces the material following receipt of a counter
notification under section 512(g); and
``(2) the claim brought alleges infringement of the
material identified in the notification of claimed infringement
under section 512(c)(1)(C).
``(e) Failure To Assert Counterclaim.--The failure or inability to
assert a counterclaim in a proceeding before the Copyright Claims Board
shall not preclude the assertion of that counterclaim in a subsequent
court action or proceeding before the Copyright Claims Board.
``(f) Opt-Out or Dismissal of Party.--If a party has timely opted
out of a proceeding under section 1506(i) or is dismissed from a
proceeding before the Copyright Claims Board issues a final
determination in the proceeding, the determination shall not be binding
upon and shall have no preclusive effect with respect to that party.
``Sec. 1508. Review and confirmation by district court
``(a) In General.--In any proceeding in which a party has failed to
pay damages, or has failed otherwise to comply with the relief, awarded
in a final determination of the Copyright Claims Board, including a
default determination or a determination based on a failure to
prosecute, the aggrieved party may, not later than 1 year after the
date on which the final determination is issued, any reconsideration by
the Copyright Claims Board or review by the Register of Copyrights is
resolved, or an amended final determination is issued, whichever occurs
last, apply to the United States District Court for the District of
Columbia or any other appropriate district court of the United States
for an order confirming the relief awarded in the final determination
and reducing such award to judgment. The court shall grant such order
and direct entry of judgment unless the determination is or has been
vacated, modified, or corrected under subsection (c). If the United
States District Court for the District of Columbia or other district
court of the United States, as the case may be, issues an order
confirming the relief awarded by the Copyright Claims Board, the court
shall impose on the party who failed to pay damages or otherwise comply
with the relief, the reasonable expenses required to secure such order,
including attorneys' fees, that were incurred by the aggrieved party.
``(b) Filing Procedures.--
``(1) Application to confirm determination.--Notice of the
application under subsection (a) for confirmation of a
determination of the Copyright Claims Board and entry of
judgment shall be provided to all parties to the proceeding
before the Copyright Claims Board that resulted in the
determination, in accordance with the procedures applicable to
service of a motion in the district court of the United States
where the application is made.
``(2) Contents of application.--The application shall
include the following:
``(A) A certified copy of the final or amended
final determination of the Copyright Claims Board, as
reflected in the records of the Copyright Claims Board,
following any process of reconsideration or review by
the Register of Copyrights, to be confirmed and
rendered to judgment.
``(B) A declaration by the applicant, under penalty
of perjury--
``(i) that the copy is a true and correct
copy of such determination;
``(ii) stating the date it was issued;
``(iii) stating the basis for the challenge
under subsection (c)(1); and
``(iv) stating whether the applicant is
aware of any other proceedings before the court
concerning the same determination of the
Copyright Claims Board.
``(c) Challenges to the Determination.--
``(1) Bases for challenge.--Not later than 90 days after
the date on which the Copyright Claims Board issues a final or
amended final determination in a proceeding, or not later than
90 days after the date on which the Register of Copyrights
completes any process of reconsideration or review of the
determination, whichever occurs later, a party may seek a court
order vacating, modifying, or correcting the determination of
the Copyright Claims Board in the following cases:
``(A) If the determination was issued as a result
of fraud, corruption, misrepresentation, or other
misconduct.
``(B) If the Copyright Claims Board exceeded its
authority or failed to render a final determination
concerning the subject matter at issue.
``(C) In the case of a default determination or
determination based on a failure to prosecute, if it is
established that the default or failure was due to
excusable neglect.
``(2) Procedure to challenge.--
``(A) Notice of application.--Notice of the
application to challenge a determination of the
Copyright Claims Board shall be provided to all parties
to the proceeding before the Copyright Claims Board, in
accordance with the procedures applicable to service of
a motion in the court where the application is made.
``(B) Staying of proceedings.--For purposes of an
application under this subsection, any judge who is
authorized to issue an order to stay the proceedings in
an any other action brought in the same court may issue
an order, to be served with the notice of application,
staying proceedings to enforce the award while the
challenge is pending.
``Sec. 1509. Relationship to other district court actions
``(a) Stay of District Court Proceedings.--Subject to section
1507(b), a district court of the United States shall issue a stay of
proceedings or such other relief as the court determines appropriate
with respect to any claim brought before the court that is already the
subject of a pending or active proceeding before the Copyright Claims
Board.
``(b) Alternative Dispute Resolution Process.--A proceeding before
the Copyright Claims Board under this chapter shall qualify as an
alternative dispute resolution process under section 651 of title 28
for purposes of referral of eligible cases by district courts of the
United States upon the consent of the parties.
``Sec. 1510. Implementation by Copyright Office
``(a) Regulations.--
``(1) Implementation generally.--The Register of Copyrights
shall establish regulations to carry out this chapter. Such
regulations shall include the fees prescribed under subsections
(e) and (x) of section 1506. The authority to issue such fees
shall not limit the authority of the Register of Copyrights to
establish fees for services under section 708. All fees
received by the Copyright Office in connection with the
activities under this chapter shall be deposited by the
Register of Copyrights and credited to the appropriations for
necessary expenses of the Office in accordance with section
708(d). In establishing regulations under this subsection, the
Register of Copyrights shall provide for the efficient
administration of the Copyright Claims Board, and for the
ability of the Copyright Claims Board to timely complete
proceedings instituted under this chapter, including by
implementing mechanisms to prevent harassing or improper use of
the Copyright Claims Board by any party.
``(2) Limits on monetary relief.--
``(A) In general.--Subject to subparagraph (B), the
Register of Copyrights may, in order to further the
goals of the Copyright Claims Board, conduct a
rulemaking to adjust the limits on monetary recovery or
attorneys' fees and costs that may be awarded under
this chapter.
``(B) Effective date of adjustment.--Any rule under
subparagraph (A) that makes an adjustment shall take
effect at the end of the 120-day period beginning on
the date on which the Register of Copyrights submits
the rule to Congress and only if Congress does not,
during that 120-day period, enact a law that provides
in substance that Congress does not approve the rule.
``(b) Necessary Facilities.--Subject to applicable law, the
Register of Copyrights may retain outside vendors to establish
internet-based, teleconferencing, and other facilities required to
operate the Copyright Claims Board.
``(c) Fees.--Any filing fees, including the fee to commence a
proceeding under section 1506(e), shall be prescribed in regulations
established by the Register of Copyrights. The sum total of such filing
fees shall be in an amount of at least $100, may not exceed the cost of
filing an action in a district court of the United States, and shall be
fixed in amounts that further the goals of the Copyright Claims Board.
``Sec. 1511. Funding
``There are authorized to be appropriated such sums as may be
necessary to pay the costs incurred by the Copyright Office under this
chapter that are not covered by fees collected for services rendered
under this chapter, including the costs of establishing and maintaining
the Copyright Claims Board and its facilities.''.
(b) Clerical Amendment.--The table of chapters for title 17, United
States Code, is amended by adding after the item relating to chapter 14
the following:
``15. Copyright Small Claims................................ 1501''.
SEC. 102. IMPLEMENTATION.
Not later 1 year after the date of enactment of this Act, the
Copyright Claims Board established under section 1502 of title 17,
United States Code, as added by section 101 of this Act, shall begin
operations.
SEC. 103. STUDY.
Not later than 3 years after the date on which the Copyright Claims
Board issues the first determination of the Copyright Claims Board
under chapter 15 of title 17, United States Code, as added by section
101 of this Act, the Register of Copyrights shall conduct, and report
to Congress on, a study that addresses the following:
(1) The use and efficacy of the Copyright Claims Board in
resolving copyright claims, including the number of proceedings
the Copyright Claims Board could reasonably administer.
(2) Whether adjustments to the authority of the Copyright
Claims Board are necessary or advisable, including with respect
to--
(A) eligible claims, such as claims under section
1202 of title 17, United States Code; and
(B) works and applicable damages limitations.
(3) Whether greater allowance should be made to permit
awards of attorneys' fees and costs to prevailing parties,
including potential limitations on such awards.
(4) Potential mechanisms to assist copyright owners with
small claims in ascertaining the identity and location of
unknown online infringers.
(5) Whether the Copyright Claims Board should be expanded
to offer mediation or other nonbinding alternative dispute
resolution services to interested parties.
(6) Such other matters as the Register of Copyrights
believes may be pertinent concerning the Copyright Claims
Board.
SEC. 104. SEVERABILITY.
If any provision of this title, an amendment made by this title, or
the application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this
title and the amendments made by this title, and the application of the
provision or the amendment to any other person or circumstance, shall
not be affected.
TITLE II--GOOD SAMARITAN BLOCKING
SEC. 201. PROTECTION FROM CIVIL LIABILITY FOR ``GOOD SAMARITAN''
BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.
Section 230 of the Communications Act of 1934 (47 U.S.C. 230) is
amended--
(1) in subsection (c)--
(A) in paragraph (1)--
(i) by striking ``No provider'' and
inserting the following:
``(A) In general.--No provider''; and
(ii) by adding at the end the following:
``(B) Applicability.--
``(i) In general.--Subparagraph (A) shall
not apply to any decision or agreement made or
action taken by a provider or user of an
interactive computer service to restrict access
to or availability of material provided by
another information content provider.
``(ii) Civil liability.--Any applicable
immunity for a decision or agreement made or
action taken by a provider or user of an
interactive computer service described in
clause (i) shall be provided solely by
paragraph (2).''; and
(B) in paragraph (2)--
(i) in subparagraph (A)--
(I) by striking ``considers to be''
and inserting ``has an objectively
reasonable belief is''; and
(II) by striking ``or otherwise
objectionable'' and inserting
``promoting self-harm, promoting
terrorism, or unlawful''; and
(ii) in subparagraph (B), by striking
``paragraph (1)'' and inserting ``subparagraph
(A)''; and
(2) in subsection (f)(3)--
(A) by striking ``The term'' and inserting the
following:
``(A) In general.--The term''; and
(B) by adding at the end the following:
``(B) Responsibility.--For purposes of subparagraph
(A), being responsible in whole or in part for the
creation or development of information--
``(i) includes any instance in which a
person or entity editorializes or affirmatively
and substantively modifies the content of
another person or entity; and
``(ii) does not include a change to the
format, layout, or basic appearance of the
content of another person or entity.''.
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