[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 9541 Introduced in House (IH)]

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117th CONGRESS
  2d Session
                                H. R. 9541

   To amend title 17, United States Code, to define and provide for 
   accommodation and designation of technical measures to identify, 
     protect, or manage copyrighted works, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 14, 2022

Ms. Chu (for herself and Mr. Armstrong) introduced the following bill; 
          which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend title 17, United States Code, to define and provide for 
   accommodation and designation of technical measures to identify, 
     protect, or manage copyrighted works, 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 ``Strengthening Measures to Advance 
Rights Technologies Copyright Act of 2023'' or the ``SMART Copyright 
Act of 2023''.

SEC. 2. DESIGNATION OF USE IN THE MARKETPLACE OF CERTAIN TECHNICAL 
              MEASURES TO IDENTIFY OR PROTECT COPYRIGHTED WORKS.

    (a) In General.--Chapter 5 of title 17, United States Code, is 
amended by adding at the end the following:
``Sec. 514. Designation of use in the marketplace of certain technical 
              measures to identify or protect copyrighted works
    ``(a) Definitions.--In this section:
            ``(1) Covered service provider.--The term `covered service 
        provider' means a service provider to which a designated 
        technical measure applies.
            ``(2) Designated technical measure.--The term `designated 
        technical measure' means a technical measure that has been 
        designated by the Librarian in accordance with subsections (c), 
        (d), and (e).
            ``(3) Librarian.--The term `Librarian' means the Librarian 
        of Congress.
            ``(4) Proposed technical measure.--The term `proposed 
        technical measure' means a technical measure that is proposed 
        by a person under subsection (d).
            ``(5) Register.--The term `Register' means the Register of 
        Copyrights.
            ``(6) Service provider.--The term `service provider' 
        means--
                    ``(A) a provider of online services or network 
                access, or the operator of facilities therefor, that--
                            ``(i) provides storage at the direction of 
                        a user of material that resides on a system or 
                        network controlled or operated by or for the 
                        service provider;
                            ``(ii) refers or links users to an online 
                        location by using information location tools, 
                        including a directory, index, reference, 
                        pointer, or hypertext link; and/or
                            ``(iii) provides the intermediate and 
                        temporary storage of material on a system or 
                        network controlled or operated by or for the 
                        service provider in a case in which--
                                    ``(I) the material is made 
                                available online by a person other than 
                                the service provider;
                                    ``(II) the material is transmitted 
                                from the person described in clause (i) 
                                through the system or network to a 
                                person other than the person described 
                                in clause (i) at the direction of that 
                                other person; and
                                    ``(III) the storage is carried out 
                                through an automatic technical process 
                                for the purpose of making the material 
                                available to users of the system or 
                                network who, after the material is 
                                transmitted as described in clause 
                                (ii), request access to the material 
                                from the person described in clause 
                                (i); and
                    ``(B) the term does not include--
                            ``(i) a library or archives--
                                    ``(I) whose collections are open to 
                                the public, or are available not only 
                                to researchers affiliated with the 
                                library or archives or with the 
                                institution of which it is a part, but 
                                also to other persons doing research in 
                                a specialized field;
                                    ``(II) that has a public service 
                                mission;
                                    ``(III) whose trained staff or 
                                volunteers provide professional 
                                services normally associated with 
                                libraries or archives; and
                                    ``(IV) whose collections are 
                                composed of lawfully acquired and/or 
                                licensed materials;
                            ``(ii) a nonprofit educational institution; 
                        or
                            ``(iii) any other person solely with regard 
                        to providing the services described in section 
                        512(k) to an institution described in 
                        subparagraph (i) or (ii) in the course of 
                        providing such services to such institution.
            ``(7) Technical measure.--The term `technical measure' 
        means a technical measure that is used in commerce by a 
        copyright owner or a service provider to identify or protect a 
        copyrighted work.
    ``(b) Employment of Designated Technical Measures.--A covered 
service provider shall use reasonable efforts to employ and effectively 
implement applicable designated technical measures.
    ``(c) Authority of the Librarian.--
            ``(1) Designation of technical measures.--The Librarian 
        may, at the recommendation of the Register, and pursuant to 
        subsections (d) and (e)--
                    ``(A) designate proposed technical measures that--
                            ``(i) are widely used in the marketplace by 
                        service providers; or
                            ``(ii) are widely available in the 
                        marketplace on nondiscriminatory terms and a 
                        royalty-free basis;
                    ``(B) rescind previous designations of technical 
                measures; and
                    ``(C) revise previous designations of technical 
                measures.
            ``(2) Prescription of rules.--The Librarian, upon 
        consultation with the Register, shall prescribe rules that--
                    ``(A) implement subsections (d) and (e); and
                    ``(B) provide for the protection of confidential 
                and sensitive information provided to the Librarian--
                            ``(i) as part of a petition under 
                        subsection (d); or
                            ``(ii) during a rulemaking under subsection 
                        (e).
    ``(d) Petitions.--
            ``(1) In general.--Not later than 1 year after the date of 
        enactment of the SMART Copyright Act of 2023 and every 3 years 
        thereafter, the Librarian shall accept petitions, from owners 
        of copyrighted works, service providers, and other 
        stakeholders, proposing the designation of a technical measure 
        or the rescission or revision of a previous designation of a 
        technical measure.
            ``(2) Petition requirements.--In the case of a petition 
        submitted to the Librarian under paragraph (1) proposing the 
        designation of a technical measure or review of a previous 
        designation of a technical measure, as appropriate, the 
        petition shall detail with specificity--
                    ``(A) how the proposed technical measure, or the 
                designated technical measure as proposed to be revised, 
                meets the definition of `technical measure' under 
                subsection (a) and the criteria for designation of such 
                technical measure under subsection (c)(1)(A);
                    ``(B) the classes of copyrighted works, or any 
                subsets thereof, intended to be covered; and
                    ``(C) the types of service provider, or any subsets 
                thereof, intended to be covered.
            ``(3) Evaluation of petition.--After each deadline under 
        paragraph (1), the Librarian shall evaluate each petition 
        received under that paragraph and take appropriate action as 
        follows:
                    ``(A) The Librarian may begin a rulemaking process 
                to--
                            ``(i) designate a proposed technical 
                        measure; or
                            ``(ii) rescind or revise a previous 
                        designation of a technical measure.
                    ``(B) The Librarian shall reject without a 
                rulemaking proceeding a petition that proposes the 
                designation or revision of a designation applicable to 
                a privately owned technical measure, unless the 
                petition is filed or joined by the owner of the 
                technical measure proposed to be designated or whose 
                previous designation is proposed to be revised.
    ``(e) Rulemaking Process.--
            ``(1) Public comment.--For any proposed technical measure 
        or designated technical measure for which the Librarian has 
        begun a rulemaking process under subsection (d)(3)(A), the 
        public comment process shall include not less than 1 public 
        hearing convened by the Register.
            ``(2) Examination by register.--For any rulemaking process 
        the Librarian has begun under subsection (d)(3)(A), with 
        respect to each proposed technical measure, the Register, in 
        making a recommendation under paragraph (3), shall consider 
        whether the criteria set forth in subsection (c)(1)(A) have 
        been met, and, in addition, shall take into account--
                    ``(A) whether the proposed technical measure 
                imposes substantial and disproportionate costs on 
                service providers or substantial and disproportionate 
                burdens on their systems or networks;
                    ``(B) whether there are any intellectual property 
                rights that need to be licensed by service providers to 
                employ and effectively implement the proposed technical 
                measure;
                    ``(C) the total amount of alleged or demonstrated 
                infringing activity occurring over systems or networks 
                controlled by the types of service providers described 
                in the petition, including the volume of valid takedown 
                notices received by the service provider pursuant to 
                section 512, taking into consideration the scale of the 
                platform and existing systems to identify or protect 
                copyrighted material;
                    ``(D) the positive or negative impact the proposed 
                technical measure may have on criticism, comment, news 
                reporting, teaching, scholarship, research, increasing 
                information sharing, or other relevant public interest 
                considerations;
                    ``(E) whether the proposed technical measure poses 
                a cybersecurity threat (as defined in section 102 of 
                the Cybersecurity Information Sharing Act of 2015 (6 
                U.S.C. 1501)) to, or would create a security 
                vulnerability (as defined in such section 102) for, the 
                information systems of the affected service providers;
                    ``(F) the impact the proposed technical measure may 
                have on privacy and data protection;
                    ``(G) the impact the lack of use of the proposed 
                technical measure may have on unfair competition among 
                service providers;
                    ``(H) whether certain categories or types of 
                service providers should be exempt from the subset of 
                service providers covered by the proposed technical 
                measure, such as corporate or not-for-profit websites 
                that permit user comments or posts, but have never or 
                rarely had infringing activity on their services;
                    ``(I) whether the proposed technical measure may 
                conflict or interfere with other proposed technical 
                measures or designated technical measures; and
                    ``(J) whether multiple proposed technical measures 
                and designated technical measures should be subsumed 
                under a broader category of designated technical 
                measures.
            ``(3) Recommendation.--The Register shall make a 
        recommendation on each proposed technical measure, and each 
        proposed revision or rescinding of a previous designation of a 
        technical measure, that is considered under the rulemaking 
        process under this subsection, and after consulting with the 
        following, as appropriate:
                    ``(A) The Director of the National Institute of 
                Standards and Technology.
                    ``(B) The Assistant Secretary of Commerce for 
                Communications and Information.
                    ``(C) Any relevant cybersecurity agency.
            ``(4) Decision.--If, at the conclusion of the rulemaking 
        process under this subsection, the Librarian determines based 
        on the recommendation of the Register that a proposed technical 
        measure should be designated under the authority granted in 
        subsection (c), the Librarian shall--
                    ``(A)(i) for a proposed technical measure, 
                designate the proposed technical measure; or
                    ``(ii) for a revision of a previous designation of 
                a technical measure, set forth the revised designation 
                of the technical measure;
                    ``(B) for a proposed technical measure or a 
                proposed revision of a previous designation of a 
                technical measure--
                            ``(i) describe, as part of the designation 
                        under subparagraph (A), the classes of 
                        copyrighted works, or any subsets thereof, and 
                        the types of covered service providers to which 
                        the technical measure applies; and
                            ``(ii) include in the description under 
                        clause (i), as appropriate, any category or 
                        subset of type of service provider that is 
                        exempt from the designation, such that the 
                        requirement under subsection (b) does not apply 
                        to those service providers;
                    ``(C) for a previous designation of a technical 
                measure proposed to be rescinded, rescind the 
                designation of the technical measure;
                    ``(D) for a proposed technical measure or a 
                previous designation of a technical measure proposed to 
                be revised, provide examples or a definition with 
                specificity for what `employ and effectively implement' 
                means for the technical measure, taking into account 
                how different covered service providers to which the 
                technical measure applies may have to employ and 
                effectively implement differently based on their size 
                or other relevant characteristics, provided that no 
                such examples shall imply that a particular proprietary 
                product must be used;
                    ``(E) publish a list of designated technical 
                measures, including the description required under 
                subparagraph (B)(i), to be in effect after the 
                Librarian has designated technical measures or revised 
                or rescinded previous designations of technical 
                measures under the paragraph in the Federal Register 
                and publish and maintain the list on the website of the 
                Library of Congress; and
                    ``(F) for a proposed technical measure or a revised 
                designation of a technical measure, publish a deadline, 
                which shall not be earlier than 1 year after the date 
                of publication, by which covered service providers 
                shall implement the designated technical measure.
    ``(f) Public Information.--To assist the public in understanding 
the requirements under this section, the Register shall--
            ``(1) publish on the website of the Copyright Office an 
        index of cases relating to the requirements; and
            ``(2) update the list published under paragraph (1) not 
        less frequently than annually.
    ``(g) Authorization of Appropriations.--
            ``(1) In general.--There is authorized to be appropriated 
        to carry out this section--
                    ``(A) $900,000 for fiscal year 2023; and
                    ``(B) subject to paragraph (2), $700,000 for fiscal 
                year 2024 and each fiscal year thereafter.
            ``(2) Adjustment for inflation.--The amount authorized to 
        be appropriated under paragraph (1)(B) for fiscal year 2025 and 
        each fiscal year thereafter shall be adjusted annually to 
        reflect the change in the Consumer Price Index for All Urban 
        Consumers published by the Bureau of Labor Statistics.
    ``(h) Appeal to District of Columbia Circuit.--Not later than 90 
days after the date on which the Librarian publishes a decision 
regarding a technical measure under subsection (e)(4), any covered 
service provider to which the technical measure applies and any party 
that submitted a petition under subsection (d) regarding the technical 
measure may appeal the decision to the United States Court of Appeals 
for the District of Columbia Circuit.
    ``(i) Civil Remedies.--
            ``(1) Civil actions.--A copyright owner may bring a civil 
        action in an appropriate United States district court against a 
        covered service provider for a violation of subsection (b) for 
        the remedies provided in this subsection.
            ``(2) Authority of the court.--In an action brought under 
        paragraph (1), if the court finds a violation of subsection 
        (b), the court shall enter an order on such terms as it may 
        deem reasonable to ensure compliance by the covered service 
        provider with subsection (b) within an appropriate time period, 
        and, in addition, the court may--
                    ``(A) award damages, in accordance with paragraph 
                (3);
                    ``(B) allow, in its discretion, the recovery of 
                costs by or against any party other than the United 
                States or an officer of the United States; and
                    ``(C) award, in its discretion, reasonable attorney 
                fees and expert witness fees to the prevailing party.
            ``(3) Award of damages.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B) or otherwise provided in this title, 
                the court may award to the copyright owner bringing a 
                claim under paragraph (1)--
                            ``(i) statutory damages in the sum of not 
                        less than $5,000 and not more than $500,000 for 
                        each violation of subsection (b), as the court 
                        considers just; and
                            ``(ii) a separate award of statutory 
                        damages in the sum of not less than $5,000 and 
                        not more than $500,000 for each month that a 
                        covered service provider fails to comply with 
                        subsection (b) after the time period ordered by 
                        the court in paragraph (2)(A).
                    ``(B) Innocent violations.--The court, in its 
                discretion, may reduce or remit the total award of 
                damages in any action brought against a covered service 
                provider under paragraph (1)--
                            ``(i) in which the covered service provider 
                        proves by a preponderance of the evidence that 
                        the covered service provider was not aware and 
                        had no reason to believe that its acts 
                        constituted a violation of subsection (b); or
                            ``(ii) for reasons of equity.
    ``(j) No Impact on Safe Harbor.--
            ``(1) In general.--Nothing in this section shall be 
        construed to alter the scope of the safe harbors set forth in 
        subsections (a) through (e) of section 512, or to impose a 
        condition on eligibility for those safe harbors.
            ``(2) No defense to liability.--The safe harbors set forth 
        in subsections (a) through (e) of section 512 shall not 
        constitute a defense to liability under this section.
    ``(k) Limitation of Liability.--Notwithstanding subsection (i), no 
covered service provider shall be held liable in a civil action on 
account of--
            ``(1) any action voluntarily taken in good faith under this 
        section to restrict access to or availability of material; or
            ``(2) any action taken under this section to enable or make 
        available to covered service providers the technical means to 
        restrict access to material described in paragraph (1).''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 5 of title 17, United States Code, is amended by adding at the 
end the following:

``514. Designation of use in the marketplace of certain technical 
                            measures to identify or protect copyrighted 
                            works.''.
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