[Congressional Record Volume 144, Number 61 (Thursday, May 14, 1998)]
[Senate]
[Pages S4884-S4900]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998

  Mr. LOTT. Mr. President, I ask the Senate turn to Calendar No. 358, 
S. 2037, regarding the WIPO treaty, which is the treaty dealing with 
digital copyright.
  The PRESIDING OFFICER. Under the previous order, the clerk will 
report.
  The assistant legislative clerk read as follows:

       A bill (S. 2037) to amend title 17, United States Code, to 
     implement the WIPO Copyright Treaty and the WIPO Performances 
     and Phonograms Treaty, to provide limitations on copyright 
     liability relating to material online, and for other 
     purposes.

  The Senate proceeded to consider the bill.
  Mr. LOTT. Mr. President, the Senate is now considering the WIPO 
Copyright Treaty which has up to 1 hour under the consent agreement 
that was reached on May 12. Therefore, the next vote will occur 
shortly--hopefully in less than an hour--on passage of the WIPO 
copyright bill, and that will be the last vote of the day.
  I know there are some Senators here who have worked on this issue who 
do want to be heard briefly--the Senator from Missouri, and, of course, 
the Senator from Utah has been working on this assiduously. We had a 
little problem we ran into yesterday, but we are going forward with 
this and we will try to work it out with the House, and I will 
certainly try to be helpful with that.
  This is important legislation. A lot of effort has been put into it. 
Some of the problems have been resolved, thanks to the courtesy and 
leadership of Senator Hatch, working with Senator Ashcroft. So I think 
we need to go ahead and do it today and we will have had, really, an 
incredible week on these high-tech bills.

  Again, the next vote will occur on Monday--there will be no further 
votes after the WIPO vote tonight--and I will notify all Members as to 
the time of that vote.
  With regard to the DOD authorization matter, I will be talking with 
the managers of this legislation to see what their wishes are, and we 
will have some further announcements of when that legislation will be 
brought up again.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the time allocated 
for this debate is 60 minutes, equally divided and controlled between 
the Senator from Utah, Mr. Hatch, and the Senator from Vermont, Mr. 
Leahy, with 15 minutes of the time of Mr. Hatch controlled by the 
Senator from Missouri, Mr. Ashcroft.
  The Senate will be in order.
  Mr. ASHCROFT. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I would like to yield to the distinguished Senator from 
Arizona for an amendment that he has to take care of.
  Mr. McCAIN. Mr. President, I ask unanimous consent to send to the 
desk an amendment that is on the DOD bill.
  The PRESIDING OFFICER. The Presiding Officer will advise the Senator 
the DOD bill is not the pending business.
  Mr. McCAIN. Can I, by unanimous consent, send up that amendment?
  Mr. LEVIN. I object. Reserving the right to object.
  Mr. McCAIN. It is an amendment that has been accepted by both sides.
  Mr. LEVIN. On the DOD bill? I have to object. There are too many 
pending amendments. I am sorry, if the Senator can clear that----
  The PRESIDING OFFICER. Objection is heard. The Senator from Utah.
  Mr. HATCH. Mr. President, I ask this time not be charged.
  The PRESIDING OFFICER. The amendments are submitted and will be 
numbered. The Senator from Utah.
  Mr. HATCH. I ask that time not be charged to the present act.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I rise to speak in support of the Digital 
Millennium Copyright Act of 1998, S. 2037. The DMCA is the most 
comprehensive bill that has come before the Senate regarding the 
Internet and the digital world in general.
  The DMCA in Title I implements the World Intellectual Property (WIPO) 
treaties on copyright and on performers and phonograms, and in Title II 
limits the copyright infringement liability of on-line and Internet 
service providers (OSPs and ISPs) under certain circumstances. The DMCA 
also provides in Title III a minor but important clarification of 
copyright law that the lawful owner or lessee of a computer may 
authorize someone to turn on their computer for the purposes of 
maintenance or repair. Title IV addresses the issues of ephemeral 
recordings, distance education, and digital preservation for libraries 
and archives.
  Due to the ease with which digital works can be copied and 
distributed worldwide virtually instantaneously, copyright owners will 
hesitate to make their works readily available on the Internet without 
reasonable assurance that they will be protected against massive 
piracy. Legislation implementing the treaties provides this protection 
and creates the legal platform for launching the global digital on-line 
marketplace for copyrighted works. It will facilitate making available 
quickly and conveniently via the Internet the movies, music, software, 
and literary works that are the fruit of American creative genius. It 
will also encourage the continued growth of the existing off-line 
global marketplace for copyrighted works in digital format by setting 
strong international copyright standards.
  The copyright industries are one of America's largest and fastest 
growing economic assets. According to International Intellectual 
Property Alliance statistics, in 1996 (when the last full set of 
figures was available), the U.S. creative industries accounted for 
3.65% of the U.S. gross domestic product (GDP)--$278.4 billion. In the 
last 20 years in which comprehensive statistics are available--1977-
1996--the U.S. copyright industries' share of GDP grew more than twice 
as fast as the remainder of the economy--5.5 percent versus 2.6 
percent.
  Between 1997 and 1996, employment in the U.S. copyright industries 
more than doubled to 3.5 million workers--2.8 percent of total U.S. 
employment. Between 1977 and 1996 U.S. copyright industry employment 
grew nearly three times as fast as the annual rate of the economy as a 
whole--4.6 percent versus 1.6 percent. In fact, the copyright 
industries contribute more to the U.S. economy and employ more workers 
than any single manufacturing sector, including chemicals, industrial 
equipment, electronics, food processing, textiles and apparel, and 
aircraft.
  More significantly for the WIPO treaties, in 1996 U.S. copyright 
industries achieved foreign sales and exports of $60.18 billion, for 
the first time leading all major industry sectors, including 
agriculture, automobiles and auto parts, and the aircraft industry. 
There can be no doubt that copyright is of supreme importance to the 
American economy. Yet, American companies are losing $18 to $20 billion 
annually due to the international piracy of copyrighted works.
  But the potential of the Internet, both as information highway and 
marketplace, depends on its speed and capacity. Without clarification 
of their liability, service providers may hesitate to make the 
necessary investment to fulfill that potential. In the ordinary course 
of their operations service providers must engage in all kinds of acts 
that expose them to potential copyright infringement liability.
  For example, service providers must make innumerable electronic 
copies in order simply to transmit information over the Internet. 
Certain electronic copies are made to speed up the delivery of 
information to users. Other electronic copies are made in order to host 
World Wide Web sites. Many service providers engage in directing users 
to sites in response to inquiries by users or they volunteer sites that 
users may find attractive. Some of these sites might contain infringing 
material. In

[[Page S4885]]

short, by limiting the liability of service providers, the DMCA ensures 
that the efficiency of the Internet will continue to improve and that 
the variety and quality of services on the Internet will continue to 
expand.
  Besides the major copyright owners and the major OPSs and ISPs (e.g., 
the local telephone companies, the long distance carriers, America 
OnLine, etc.), the Committee heard from representatives of individual 
copyright owners and small ISPs, from representatives of libraries, 
archives and educational institutions, from representatives of 
broadcasters, computer hardware manufacturers, and consumers--and this 
is not an exhaustive list.
  Title II, for example, reflects 3 months of negotiations between the 
major copyright owners and the major OSPs, and ISPs, which I encouraged 
and in which I participated, and which took place with the assistance 
of Senator Ashcroft. Intense discussions took place on distance 
education too, with the participation of representatives of libraries, 
teachers, and educational institutions, and with the assistance of 
Senator Leahy, Senator Ashcroft, and the Copyright Office.
  As a result, the Committee took substantial steps to refine the 
discussion draft that I laid down before the Committee through a series 
of amendments, each of which was adopted unanimously. For example, the 
current legislation contains:
  (1) a provision to ensure that parents will be able to protect their 
children from pornography and other inappropriate material on the 
Internet;
  (2) provisions to provide for the updating of the copyright laws so 
that educators, libraries, and achieves will be able to take full 
advantage of the promise of digital technology;
  (3) important procedural protections for individual Internet users to 
ensure that they will not be mistakenly denied access to the World Wide 
Web;
  (4) provisions to ensure that the current practice of legitimate 
reverse engineering for software interoperability may continue; and
  (5) provisions to accommodate the needs of broadcasters for ephemeral 
recordings and regarding copyright management information.
  These provisions are in addition to provisions I had already 
incorporated into my discussion draft, such as provisions on library 
browsing, provisions addressing the special needs of individual 
creators regarding copyright management information, and provisions 
exempting nonprofit archives, nonprofit educational institutions, and 
nonprofit libraries from criminal penalties and, in the case of civil 
penalties, remitting damages entirely when such an institution was not 
aware and had no reason to believe that its acts constituted a 
violation.
  Consequently, the DMCA enjoys widespread support from the motion 
picture, recording, software, and publishing industries, as well as the 
telephone companies, long distance carriers, and other OSPs and ISPs. 
It is also supported by the Information Technology Industry Council, 
which includes the leading computer hardware manufacturers, and by 
representatives of individual creators, such as the Writers Guild, the 
Directors Guild, the Screen Actors Guild, and the American Federation 
of Television and Radio Artists. The breadth of support for S. 2037 is 
reflected in the unanimous roll call vote (18-0) by which the DMCA was 
reported out of Committee.
  Mr. President, the United States started the Internet, and remains 
its most significant hub. No country comes close to the United States 
in creative output. In these areas, we are the undisputed leaders. This 
bill will help us maintain this edge in an increasingly competitive 
global market.
  Mr. President, I urge my colleagues in the Senate to vote favorably 
for S. 2037. This bill has such important ramifications for the 
continued prosperity of the U.S. as we enter the next millennium and 
has such powerful support that it should be enacted immediately.
  Finally, I would like to particularly pay tribute to the ranking 
member of the Senate Judiciary Committee, Senator Leahy. I don't know 
of anyone who has more interest in the Internet, more interest in 
computers, more interest in copyright matters than Senator Leahy, 
unless it is myself, and I don't think I have more. He has done a great 
job on this committee. It is a pleasure to work with him.
  It has been a wonderful experience throughout the 22 years I have 
been on the committee to work with him on technical and difficult 
issues. I personally thank him before everybody today for his good 
work. Without his help, we wouldn't be this far, and we all know it. I 
thank him. I would also like to thank Manus Cooney, Edward Damich, Troy 
Dow, and Virginia Isaacson of my staff for their long hours of hard 
work on this issue. And I want to commend the hard work and cooperation 
I received from Bruce Cohen, Beryl Howell, and Marla Grossman of 
Senator Leahy's staff, and Paul Clement, and Bartlett Cleland of 
Senator Ashcroft's staff.


                           Amendment No. 2411

                (Purpose: To make technical corrections)

  Mr. HATCH. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Utah [Mr. Hatch] proposes an amendment 
     numbered 2411.

  The amendment is as follows:

       On page 12, line 15 strike subsection (c) and redesignate 
     the succeeding subsections and references thereto 
     accordingly.
       On page 17, line 4, insert ``and with the intent to induce, 
     enable, facilitate or conceal infringement'' after 
     ``knowingly''
       On page 17, beginning on line 8, strike ``, with the intent 
     to induce, enable, facilitate or conceal infringement''
       On page 17, beginning on line 21, strike paragraph (3) and 
     insert in lieu thereof the following:
       ``(3) distribute, import for distribution, or publicly 
     perform works, copies of works, or phonorecords, knowing that 
     copyright management information has been removed or altered 
     without authority of the copyright owner or the law,

     knowing, or, with respect to civil remedies under section 
     1203, having reasonable grounds to know, that it will induce, 
     enable, facilitate or conceal an infringement of any right 
     under this title.''.
       On page 19, line 4, insert the following new paragraph and 
     redesignate the succeeding paragraphs accordingly:
       ``(6) terms and conditions for use of the work;''.
       On page 19, line 4, strike ``of'' and insert in lieu 
     thereof ``or''.

  Mr. HATCH. This is a technical amendment, and I urge its adoption.
  The PRESIDING OFFICER. If there is no objection, the amendment is 
agreed to.
  The amendment (No. 2411) was agreed to.
  Mr. HATCH. I yield the floor.
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I thank my friend from Utah for his 
gracious comments, and I do appreciate working with him on this matter. 
He and I have discussed this so many times in walking back and forth to 
votes and in the committee room, and so on. I think the Senator from 
Utah and I long ago determined that if we were going to have this WIPO 
implementing bill passed, its best chance would be one where the 
Senator from Utah and the Senator from Vermont were basically holding 
hands on it.
  The Senator from Utah may recall a time once when the then-Senator 
from Nevada, Senator Laxalt, and I were here and we had two pieces of 
legislation, a Laxalt-Leahy bill and a Leahy-Laxalt bill. One of our 
colleagues said, ``This is either a very good bill or one of you didn't 
read.''
  In this case, the Hatch-Leahy-et al. piece of legislation is a very 
good bill, and one which the two of us have read every word. We have 
tried to make very clear to the Senate that the issues we are raising 
in this bill are not partisan issues. These are issues that create jobs 
in the United States. These are issues that allow the United States to 
go into the next century with our innovative genius in place. These are 
issues that allow the United States, in creating that innovative 
genius, to continue to lead the world. Senators, in voting for this 
legislation, will be voting to maintain the intellectual leadership of 
the United States.
  The successful adoption by the World Intellectual Property 
Organization, what we call WIPO, in December 1996, of two new copyright 
treaties--one on written material and one on sound recordings--was 
praised in the United States. The bill that we have before us today, 
the DMCA, the Digital Millennium Copyright Act, will effectuate the

[[Page S4886]]

purposes of those treaties in the United States and, I believe, will 
serve as a model for the rest of the world.
  The WIPO treaties will fortify intellectual property rights around 
the world. They will help unleash the full potential of America's most 
creative industries, including the movie, recording, computer software, 
and other copyrighted industries that are subject to online and other 
forms of piracy, especially in the digital age where it is easier to 
pirate and steal exact copies of works.
  If they don't have the protection, the owners of intellectual 
property are going to be unwilling to put their material online. If 
there is no content worth reading online, then the growth and 
usefulness of the Internet will be stifled and public accessibility 
will be retarded.
  Secretary Daley of the Department of Commerce said, for the most 
part, ``The treaties largely incorporate intellectual property norms 
that are already part of U.S. law.'' What the treaties will do is give 
American owners of copyrighted material an important tool to protect 
their intellectual property in those countries that become a party to 
the treaties.
  With ever-expanding electronic commerce, trafficking the global 
superhighway, international copyright standards are critical to 
protecting American firms and American jobs. The future growth of the 
Internet and of digital media requires rigorous international 
intellectual property protections.
  I have in my hand the 1998 Report on Copyright Industries in the 
United States Economy. This was released last week by the International 
Intellectual Property Alliance.
  This report shows conclusively just how important the U.S. copyright 
industries are to American jobs and how important it is to protect that 
U.S. copyright industry from global piracy.
  If you look at the chart over here, Mr. President, it shows that from 
the years 1977 to 1996, the U.S. copyright industries' share of the 
gross national product grew more than twice as fast as the rest of the 
economy.
  These are the core copyright industries. Look how fast they grew as 
compared to the rest of the U.S. economy.
  One of the things that has expanded and fueled our expanding economy 
is the copyright industry.
  Now, during those same 20 years, job growth in the core copyright 
industries was nearly three times as fast as the rest of the economy. 
What this shows us, Mr. President, is that we are undergoing 
unprecedented expansion of our economy, but this is the area expanding 
the fastest.
  These statistics underscore why, when the President transmitted the 
two WIPO treaties and draft legislation to implement the treaties to 
the U.S. Senate, I was proud to introduce the implementing legislation, 
S. 1121, with Senators Hatch, Thompson, and Kohl. We did it the same 
day. The legislation we have before us today is the result of years of 
work domestically and internationally to ensure that the appropriate 
copyright protections are in place around the world to foster the 
growth of the Internet and other digital media and networks.
  The Clinton administration showed great foresight when it formed, in 
1993, the Information Infrastructure Task Force, IITF, which 
established a Working Group on Intellectual Property Rights to examine 
and recommend changes to keep copyright law current with new 
technology. Then they released a report in 1995 explaining the 
importance of this effort, stating:

       The full potential of the NII will not be realized if the 
     education, information and entertainment products protected 
     by intellectual property laws are not protected. . .

  The report said further:

       All the computers, telephones, fax machines, scanners, 
     cameras, keyboards, televisions, monitors, printers, 
     switches, routers, wires, cables, networks, and satellites in 
     the world will not create a successful NII, if there is no 
     content. What will drive the NII is the content moving 
     through it.

  The same year that report was issued, Senator Hatch and I joined 
together to introduce the NII Copyright Protection Act of 1995, S. 
1284, which incorporated the recommendations of the Administration. 
That legislative proposal confronted fundamental questions about the 
role of copyright in the next century--many of which are echoed by the 
DMCA, which we consider today.
  Title I of the DMCA is based on the Administration's recommendations 
for legislation to implement the two WIPO treaties. It makes certain 
technical changes to conform our copyright laws to the treaties and 
substantive amendments to comply with two new treaty obligations.
  Specifically, the treaties oblige the signatories to provide legal 
protections against circumvention of technological measures used by 
copyright owners to protect their works, and against violations of the 
integrity of copyright management information (CMI). Such information 
is used to identify a work, its author, the copyright owner and any 
information about the terms and conditions of use of the work. The bill 
adds a new chapter to U.S. copyright law to implement the anticircum-
vention and CMI provisions, along with corresponding civil and criminal 
penalties.
  Title II of the DMCA limits the liability for copyright infringement, 
under certain conditions, for Internet and online service providers. 
Title III gives a Copyright Act exemption to lawful computer owners or 
lessees so that independent technicians may service the machines 
without infringement liability.
  Title IV begins a process of updating our Nation's copyright laws 
with respect to library archives, and educational uses of copyrighted 
works in the digital age.
  Title I is based on the administration's recommendations, as I said.
  Following intensive discussions with a number of interested parties, 
including libraries, universities, small businesses, ISPs and OSPs, 
telephone companies, computer users, broadcasters, content providers, 
and device manufacturers, we in the Senate Judiciary Committee were 
able to reach unanimous agreement.
  For example, significant provisions were added to the bill in Title 
II to clarify the liability for copyright infringement of online and 
Internet service providers. The bill provides ``safe harbors'' from 
liability under clearly defined circumstances, which both encourage 
responsible behavior and protect important intellectual property 
rights. In addition, during the committee's consideration of this bill, 
an Ashcroft-Leahy-Hatch amendment was adopted to ensure that computer 
users are given reasonable notice when their Web sites are the subject 
of infringement complaints, and to provide procedures for computer 
users to have material that is mistakenly taken down put back online.
  We have a number of provisions designed to help libraries and 
archives. First, libraries expressed concerns about the possibility of 
criminal sanctions or potentially ruinous monetary liability for 
actions taken in good faith. This bill makes sure that libraries acting 
in good faith can never be subject to fines or civil damages. 
Specifically, a library is exempt from monetary liability in a civil 
suit if it was not aware and had no reason to believe that its acts 
constituted a violation. In addition, libraries are completely exempt 
from the criminal provisions.
  We have a ``browsing'' exception for libraries so they can look at 
encrypted work and decide whether or not they want to purchase it for 
their library.
  Senator Hatch, Senator Ashcroft, and I crafted an amendment to 
provide for the preservation of digital works by qualified libraries 
and archives. The ability of libraries to preserve legible copies of 
works in digital form is one I consider critical. Under present law, 
libraries are permitted to make a single facsimile copy for their 
collections for preservation purposes, or to replace copies in case of 
fire and so on. That worked back in the nondigital age. It does not 
work today. This gives us a chance to be up to date. We would allow 
libraries to transfer a work from one digital format to another if the 
equipment needed to read the earlier format becomes unavailable 
commercially.
  The bill ensures that libraries' collections will continue to be 
available to future generations by permitting libraries to make up to 
three copies in any format--including in digital form. This was one of 
the proposals in The National Information Infrastructure (NII) 
Copyright Protection Act of 1995, which I sponsored with Senator Hatch 
in the last Congress. The Register of Copyrights, among others, has 
supported that proposal.
  These provisions go a long way toward meeting the concerns that 
libraries have expressed about the original

[[Page S4887]]

implementing legislation we introduced.
  We address distance learning. When Congress enacted the present 
copyright law it recognized the potential of broadcast and cable 
technology to supplement classroom teaching, and to bring the classroom 
to those who, because of their disabilities or other special 
circumstances, are unable to attend classes. At the same time, Congress 
also recognized the potential for unauthorized transmissions of works 
to harm the markets for educational uses of copyrighted materials. The 
present Copyright Act strikes a careful balance and includes a narrowly 
crafted exemption.
  As with so many areas of copyright law, the advent of digital 
technology requires us to take another look at the issue.
  I recognize that the issue of distance learning has been under 
consideration for the past several years by the Conference on Fair Use 
(CONFU) that was established by the Administration to consider how to 
protect fair use in the digital environment. In spite of the hard work 
of the participants, CONFU has so far been unable to forge a 
comprehensive agreement on guidelines for the application of fair use 
to digital distance learning.
  We made tremendous strides in the Committee to chart the appropriate 
course for updating the Copyright Act to permit the use of copyrighted 
works in valid distance learning activities.
  Senator Hatch, Senator Ashcroft, and I joined together to ask the 
Copyright Office to facilitate discussions among interested library and 
educational groups and content providers with a view toward making 
recommendations for us to consider with this legislation. We 
incorporated into the DMCA a new section 122 requiring the Copyright 
Office to make broader recommendations to Congress on digital distance 
education within six months. Upon receiving the Copyright Office's 
recommendations, it is my hope that the Senate Judiciary Committee will 
promptly commence hearings on the issue and move expeditiously to enact 
further legislation on the matter. I know that all members on this 
Committee are as anxious as I am to complete the process that we 
started in Committee of updating the Copyright Act to permit the 
appropriate use of copyrighted works in valid distance learning 
activities. This step should be viewed as a beginning--and we are 
committed to making more progress as quickly as possible.
  We have also asked the Copyright Office to examine, in a 
comprehensive fashion, when the actions of a university's employees 
might jeopardize the university's eligibility for the safe harbors set 
out in the bill for online service providers. This is an important and 
complex issue with implications for other online service providers, 
including libraries and archives, and I look forward to reviewing the 
Copyright Office's analysis of this issue.
  Amendments sponsored by Senator Ashcroft, Senator Hatch, and I were 
crafted to address the question of reverse engineering, ephemeral 
recordings, and to clarify the use of copyright management.
  Finally, to assuage the concerns of the consumer, electronics 
manufacturers, and others, that the bill might require them to design 
their products to respond to a particular technological protection 
measure, Senator Hatch, Senator Ashcroft, and I crafted an amendment to 
clarify the bill on this issue.
  I mention all of these things, Mr. President, because it shows why 
the administration has sent a Statement of Administration policy saying 
the Administration supports passage of this bill. This is a well-
balanced package of proposals. As we go into the next century--the 
creators, the consumers, those in commerce in this country need the 
best laws possible. The United States is the leader today. The United 
States will not be the leader tomorrow without adequate laws.
  These laws allow the United States to continue to be the electronic 
and intellectual property leader of the world. We should pass this 
bill. We can pass it with pride.
  I would like to close by praising the dedicated staff members from 
the Judiciary Committee who have assisted us in crafting this 
legislation. They appreciate the significance of this legislation for 
our country and its economy. In particular, I want to thank Edward 
Damich and Troy Dow from the Chairman's staff, and Paul Clement and 
Bartlett Cleland from Senator Ashcroft's staff, for demonstrating what 
can be done when we put political party allegiances aside and strive to 
work together in a bipartisan fashion to craft the best bill possible. 
My hope is that the bipartisan manner in which they worked on behalf of 
the Chairman and Senator Ashcroft to bridge differences rather than 
exacerbate them can be replicated on a number of other important 
issues pending in our Committee.

  I would also like to thank those people on my Judiciary Committee 
staff--Bruce Cohen, Beryl Howell, Marla Grossman, Bill Bright and Mike 
Carrasco--for their work on this bill. They each put in long hours to 
help me find solutions to the concerns of a number of stakeholders in 
this bill. I could always trust their counsel to be fair and 
conscientious.
  Mr. President, I reserve the remainder of my time.
  Mr. HATCH. Mr. President, let me just praise my colleague from 
Missouri. Senator Ashcroft has been committed and has worked very, very 
hard to make this bill one that all of us can support. He has done a 
terrific job. He has worked on this OSP liability thing with us ad 
infinitum and added matters to this bill that made this a much better 
bill and strengthened the bill. I just could not feel better about 
somebody on my committee working on this bill than I do toward Senator 
Ashcroft. I just wanted to say he played a significant role in this 
legislation. I personally thank him.
  I yield the floor.
  Mr. ASHCROFT addressed the Chair.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Missouri is recognized to speak for 15 minutes.
  Mr. ASHCROFT. Thank you, Mr. President.
  I am grateful for the kind remarks of the Senator from Utah and am 
pleased to have the opportunity to work with him and the Senator from 
Vermont.
  I rise today to speak in favor of one of the most important pieces of 
technology legislation in the 105th Congress. At its heart, this 
legislation is about updating the copyright laws for the digital age 
and preparing a sizable portion of our economy for the next century.
  The affected parties include the online service providers, computer 
hardware and software manufacturers; every educator in America is 
affected by this legislation; every student; all the libraries; all the 
consumer electronics manufacturers and consumers of electronics; the 
motion picture companies, and everyone who uses the Internet. This 
measure will have as broad an impact on the American public as 
virtually any measure we will address.
  The full Senate's consideration of this bill culminates an effort of 
updating our copyright law that I began last September when I 
introduced S. 1146, the Digital Copyright Clarification and Technology 
Education Act. S. 1146 was a comprehensive bill designed to jump-start 
a process that had ground to a halt and appeared to be going nowhere.
  The bill addresses three basic problems. First, the liability of 
online service providers for copyright violations; second, the need to 
update the provisions of the copyright law that affect educators and 
libraries for the digital age; and third--and not least, of course--the 
need to implement the World Intellectual Property Organization, or 
WIPO, treaties.
  The United States of America, as the generator of so much content and 
material--the innovator, the creator of so much of what is 
copywritten--stands to gain most by making sure that our copyrights are 
respected worldwide.
  I am gratified that today the full Senate will vote on this bill that 
addresses all three of these concerns, especially the concerns 
regarding the need to implement the World Intellectual Property 
Organization treaties which will provide that the United States effort 
to protect copyrights--the intellectual property of those who are the 
creators in this country and develop things in this country--those 
treaties will protect those copyrights.
  The original administration language that was introduced by Senators 
Hatch and Leahy focused exclusively on the

[[Page S4888]]

WIPO treaties. However, through hard work, numerous amendments and the 
assistance of Senators Hatch and Leahy and their staffs--and this was 
really a cooperative effort--we were able to fashion a comprehensive 
approach to updating the copyright laws for the digital age.
  Many important changes were made to the bill, including amendments 
reinforcing on-line privacy rights, ensuring that the bill would not be 
read to mandate design decisions and addressing the need to update the 
copyright laws to permit distance education using digital technology.
  When I was a professor--I won't want to admit how long ago--I used to 
teach a television course. The very same procedures I used in analog 
technology for television transmission might well have been illegal if 
the TV signal had been transmitted digitally. It is important that we 
give the capacity for distance education in the digital age the same 
potential that we had for distance education in the analog age.
  I will focus on three important changes, one reflecting each of the 
three basic problems addressed by the original bill.
  First, there is the issue of the liability of on-line service 
providers. The notion that service providers should not bear the 
responsibility for copyright infringements when they are solely 
transmitting the material is one key to the future growth of the 
Internet. Now, what we are really talking about is if someone illegally 
transmits material on the Internet, the Internet companies that provide 
the opportunity for people to transmit the material shouldn't be held 
responsible any more than the phone company should be held responsible 
if you were to say something illegal over the phone, or that Xerox 
should be held responsible if you violate a copyright by illegally 
copying material on the Xerox machine.
  This is very important because of the way the Internet operates in 
terms of assembling and reassembling digital messages that they not be 
considered to be an illegal publisher; they, therefore, needed the 
protections that are provided in this bill so that we can have and 
continue to use the infrastructure of the Internet and allow it to 
operate effectively.
  Proper resolution of this issue is critical to unlock the potential 
for the Internet. For that reason, I included a title addressing on-
line service provider liability in my legislation. Make no mistake 
about it, clarification of on-line service provider liability was one 
of my fundamental concerns in the debate, and after months of 
negotiations the affected parties were able to agree to legislative 
language that protects on-line service providers, or what we call the 
OSPs, from liability when they simply transmit--they are not involved, 
they don't have any interest in the message, but they are just 
transmitters. If there is a violation, it is not their fault that 
something was transmitted in contravention of the copyright law.
  Although I applauded the efforts of the affected industries to 
resolve the OSP liability issue, there was one issue which the industry 
agreement did not address--the protections that need to be given to 
users of the Internet. The agreement that the OSPs entered into would 
have protected the interests of the copyright owners, but it provided 
little or no protection for an Internet user who was wrongfully accused 
of violating copyright laws.
  I think of a little girl, perhaps, who puts on her Internet site the 
picture of a duck she draws. We shouldn't allow Disney to say, ``We own 
Donald Duck. That looks too much like Donald,'' and be able to bully a 
little girl from having a duck on her web site. We needed protection 
for the small user, not just for the big content promoters.
  Even though several Judiciary Committee members claimed no amendments 
were needed, I made sure that the industry compromise respected the 
rights of typical Internet users, ordinary people, by offering an 
amendment that provided a protection included in the original bill I 
had offered. It is an idea which is referred to as the ``notice and 
put-back'' provision. If material is wrongfully taken down from the 
Internet user's home page, my amendment ensures that the end user will 
be given notice of the action taken and gives them a right to initiate 
a process that allows them to put their material back on line without 
the need to hire a lawyer or go to court. This was a critical 
improvement over the industry's prior compromise agreement.

  A second concern of mine throughout this process has been the need to 
update protections for educators and libraries already included in the 
copyright law to reflect the digital technology. I have already 
mentioned that. Having been an individual who had the privilege of 
teaching a college course on television I knew just how important it 
would be for libraries and educational institutions to be able to use 
digital transmissions of documents and signals in the same way that 
they were authorized to do so with analog signals under our copyright 
law as it has existed.
  I did offer an amendment in committee, and it was unanimously 
incorporated into the bill, which will allow libraries to use digital 
technology for archiving and for interlibrary loans, for example. This 
will help libraries serve the American public.
  A final issue of profound importance, ensuring that the bill did not 
inadvertently make it a violation of the Federal law to be a good 
parent. The original bill or draft of this bill took such a broad 
approach to outlawing any devices that could be used to gain access to 
a copyrighted work that it may have made it illegal to manufacture and 
use devices that were designed to protect children from obscenities and 
pornography. An amendment I offered in committee makes it clear that a 
parent may protect his children from pornography without running afoul 
of this law. I think moms and dads will want to be able to protect 
their children and shouldn't have to risk running afoul of the law to 
do so. My own belief is that when moms and dads do their jobs, 
governing America will be easy. If moms and dads don't do their jobs, 
governing this country could be impossible. We need to make it possible 
for parents in every instance to do their job.
  The amendment recognizes that devices designed to allow such parental 
monitoring must be allowed. We should never allow any legislation to 
move forward that intentionally or unintentionally makes good parenting 
illegal. When the choice is between protecting our children from 
obscene material and perhaps allowing one machine to be diverted for 
unlawful use, Congress and the court should choose the protection of 
the children every time and then prosecute anyone who makes unlawful 
use of such machine.
  There are a number of individuals who deserve our specific thanks 
here, and I want to take the time to make sure that deserving 
individuals and organizations are thanked. I want to take a moment to 
thank a few particular staff members who labored into the night over 
and over again and through weekends to put together this legislation. I 
commend my colleagues Senators Hatch and Leahy. I want to say that a 
number of my concerns were accommodated because these members of the 
Leahy and Hatch staff were so hard-working. Ed Damich and Troy Dow with 
Senator Hatch were critical to moving forward on all issues, 
particularly by coordinating the OSP discussions.
  Beryl Howell and Marla Grossman of Senator Leahy's staff were 
similarly important to the process, particularly in regard to the 
education provisions and on drafting language for several key areas. I 
thank the staff. They worked very closely with two of the best staff 
members that I think work in any arena on Capitol Hill, and that is 
Bartlett Cleland of my staff and Paul Clement. They worked extremely 
hard with industry and with other Members of the Senate to craft a 
piece of legislation which I believe is going to be a tremendous asset 
in allowing the potential of the Internet to be realized.
  Finally, I want to thank all of the individuals representing various 
industry and education interests who were critical not only in 
educating me on the myriad of technical issues addressed in this 
legislation, but were helping in every way to reach agreement when the 
time came. In the end, this is perhaps not a perfect bill. I would have 
favored a different approach to some issues. But this is a bill that 
has become a comprehensive effort to bring the copyright law into the 
digital age. It is an important piece of legislation which we can work 
together to make work for America.

[[Page S4889]]

  Accordingly, I am happy to support this bill. I look forward to its 
final passage, with appreciation to the outstanding leadership of 
Senator Hatch and Senator Leahy in the committee. Working with them has 
been one of the most gratifying experiences of a process of reaching a 
conclusion on legislation which I think will advance our opportunity 
significantly to access the advantages of electronic and digital 
communication for the entirety of America.
  Mr. President, I want to go over some of these notions again and 
expand the ideas a bit further.
  I rise today to speak in favor of one of the most important pieces of 
technology legislation in the 105th congress. At its heart, this 
legislation is about updating the copyright laws for the digital age 
and preparing a sizable portion of our economy for the next century. 
The affected parties include the on-line service providers, computer 
hardware and software manufacturers, educators students, libraries, 
consumer electronics manufacturers and consumers, motion picture 
companies, and everyone who uses the Internet. The full Senate's 
consideration of this bill culminates an effort at updating our 
copyright law that I began last September when I introduced S. 1146, 
the Digital Copyright Clarification and Technology Education Act. S. 
1146 was a comprehensive bill designed to jump start a process that had 
ground to a halt and appeared to be going nowhere. The bill addressed 
three basic problems: (1) the liability of on-line service providers 
for copyright violations, (2) the need to update the provisions of the 
copyright law that affect educators and libraries for the digital age, 
and (3) the need to implement the World Intellectual Property 
Organization, or WIPO, treaties. I am gratified that today the full 
Senate will vote on a bill that addresses all three of these concerns.
  The original Administration language that was introduced by Senators 
Hatch and Leahy focused exclusively on the WIPO Treaties. However, 
through hard work, numerous amendments, and the assistance of Senators 
Hatch and Leahy and their staffs, we were able to fashion a 
comprehensive approach to updating the copyright laws for the digital 
age.
  The bill before the Senate today now addresses all three of the basic 
problems identified in my bill. First, the notion that service 
providers should not bear the responsibility for copyright 
infringements when they are providing a means of communication is a key 
notion for the future growth and development of digital communications 
and most importantly the Internet. Resolution of this issue is critical 
for the future development of the Internet. For that reason, I included 
a title regarding on-line service provider liability in my legislation. 
After months of negotiations, the affected parties were able to agree 
to legislative language that protects on-line service providers, or 
OSPs, from liability when they simply transmit information along the 
Internet.
  The principles expressed in this legislation will provide a clear 
path for OSPs to operate without concern for legal ramifications or 
copyright infringement that may occur in the regular course of the 
operation of the Internet, or that occur without the OSPs knowledge. 
Without these issues being clearly delineated we would have faced a 
future of uncertainty regarding the growth of Internet and potentially 
whether it could have operated at all. Make no mistake that the 
clarification of on-line service provider liability was one of my 
fundamental concerns in this debate. While this was not the only 
crucial change in the legislation it is a change that I found essential 
for this legislation to even be considered, which is why Title I of my 
original legislation was devoted to clearly defining liability.
  Although I was supportive of the affected industries' efforts to 
resolve the OSP liability issues, there was one issue which the 
industry agreement did not address--what protections would be given the 
typical users of the Internet. The agreement protected the interests of 
OSPs, and it protected the interests of copyright owners, but it 
provided little or no protection for an Internet user wrongfully 
accused of violating the copyright laws.
  The original draft would have left these wrongly injured, innocent 
users with limited recourse. They would have to hire an attorney and go 
to court to have the court require the OSP and copyright holder to 
allow the web page to go back up--in other words the end user would 
have to go to court to prove their innocence. I found this situation to 
be totally unacceptable. Even though several Judiciary Committee 
members claimed that no amendments were needed I made sure that the 
industry compromise protected the rights of the typical Internet user 
by offering an amendment that provided protection included my original 
bill--an idea referred to as notice and put back. If material is 
wrongly taken down from an Internet user's home page because the 
original notice mistakenly did not take into account that the Internet 
user was only making a fair use of the copyrighted work, my amendment 
ensures that the end-user will be given notice of the action taken, and 
gives them a right to initiate a process that allows them to put their 
material back on-line, without the need to hire a lawyer and go to 
court. This was a critical improvement over the industry's compromise 
agreement.
  Another modification to the OSP liability material was to guarantee 
that companies, such as Yahoo!, could continue to operate as they have 
previous to the passage of this legislation. I admire companies that 
can succeed in the highly competitive technology sector, and Yahoo! has 
done just that. In no way should Congress discourage true 
entrepreneurship, particularly when the better ``mouse trap'' in this 
case has propelled a company to the top of its market. The safe harbor 
should not dissipate merely because a service provider viewed a 
particular online location during the course of categorization for a 
directory. If the rule were otherwise, true consumer oriented products 
would be eliminated or discouraged in the marketplace.
  Finally, I also insisted on language in the Committee role that 
recognized that the OSP liability provisions must be applied to 
educators and libraries with sensitivity to the special nature of those 
institutions and the unique relationships that exist in those settings. 
The report also makes it clear that the notice and put-back provision I 
mentioned above provides all the process that is due, so that state 
institutions need not worry about having to choose between qualifying 
for the safe harbors provided in the bill and the requirements imposed 
by the Due Process Clause.
  The second title of my original legislation was dedicated to similar 
concerns of universities, libraries, schools, educators and students, 
and ensured that these groups would not be left out when the content 
providers rushed to secure their position in the digital age. This 
legislation now includes some of the same provisions. I worked closely 
with Senator Leahy, educators, libraries and publishers to guarantee 
that libraries will be able to update their archives and provide 
materials to the public in a way that keeps pace with technology.

  Additionally, this legislation begins the process to allow distance 
education in the digital world. We should not tolerate laws that 
discriminate against technology, instead we should seek to guarantee 
that what people can do in the analog that they can continue those 
actions in the digital world. A study will be undertaken to help 
Congress to sort out the many technological and legal challenges of 
updating the copyright law regarding distance education. At the 
beginning of the next Congress I fully expect to introduce legislation 
specifically on distance education and I understand that both Senators 
Hatch and Leahy have agreed to support legislation based on the study 
conducted by the Copyright Office. In addition, I look forward to 
working with both the education community and the content community to 
pass, not block, this important legislation. Distance education is of 
fundamental importance to Missouri, as it is to most rural states, and 
of great importance to the many parents who home school their children.
  A third portion of the bill addresses the means by which the WIPO 
treaties will be implemented in the United States, also referred to as 
section 1201. This issue is of fundamental importance for a vital part 
of our nations

[[Page S4890]]

economy. Piracy is a large and growing problem for many content 
providers, but particularly to our software industry. Billions of 
dollars in pirated material is lost every year and in impact is felt 
directly to our national bottom line.
  While the overall structure of the legislation in this part is not 
the way I would have approached the issue I believe that I have been 
given enough assurance both in legislative language and in legislative 
history that I can support the bill. I still find troubling any 
approach that makes technology the focus of illegality rather than the 
bad conduct of a bad actor, but with the accommodations that have been 
given I think that the bill is workable.
  One issue of profound importance to me was ensuring that parents 
continue to have the legal ability to be good parents. The original 
draft of this bill took such a broad approach to outlawing devices, 
that it may have inadvertently made it illegal to manufacture and use 
devices designed to protect children from on-line pornography. The 
bill, as amended recognizes that certain devices--such as devices that 
allow parents to protect their children from on-line pornography--must 
be allowed. An amendment I offered in Committee makes clear that a 
parent may protect their children from pornography without running 
afoul of this law. We should never be in the position with any 
legislation that intentionally or unintentionally makes good parenting 
illegal. When the choice is between protecting our children from 
obscene material and perhaps allowing one machine to be diverted for 
unlawful use, Congress and the courts should choose the protection of 
children every time.
  Additionally, the protection of privacy remains a concern. While the 
legislation makes some effort to make clear that a person acting to 
protect their individual privacy should not be liable for or guilty of 
circumvention some further clarification is needed. One of my primary 
concerns has been the use of ``cookies'' and their detrimental impact 
for on-line privacy. I am not convinced that cookies could not be 
copyrighted and protected in such a way that getting rid of them or 
turning them off would not violate the new law. Recently my concern has 
been proven further by a piece of software developed by Blizzard 
Entertainment called StarCraft. This software rifles through the 
player's hard drives and sends the information found back to the 
company. Again, I was told by some that I should not be concerned, but 
I will tell you that I am concerned and everyone in this body and in 
the country should have similar concerns about this or any legislation 
that without careful thought could create a situation where an 
individual's privacy is jeopardized. I believe the savings clause I 
added to the bill will address this problem. However, if that does not 
prove sufficient, I will introduce legislation to deal with this 
problem directly and will look forward to working with all the parties 
that support this bill to ensure passage of such legislation.
  One industry that has concerns about this legislation is the 
encryption industry. I sought to have included in the legislative 
language a provision to guarantee that the highly successful means for 
encryption research that are used in this country may continue to be 
used in the future, despite some of the prohibitions included in this 
bill. Unfortunately, we were not able to work out any acceptable 
legislative language. We were able to craft language for the report 
that made clear that most forms of current encryption research were 
left undisturbed by the bill. While I believe that this is better than 
nothing, I understand that there are lingering concerns, and I would 
certainly support efforts to try to address this issue before the House 
completes work on this important piece of legislation.
  In discussing the anti-circumvention portion of the legislation, I 
think it is worth emphasizing that I could agree to support the bill's 
approach of outlawing certain devices because I was repeatedly assured 
that the device prohibitions in 1201(a)(2) and 1201(b) are aimed at so-
called ``black boxes'' and not at legitimate consumer electronics and 
computer products that have substantial non-infringing uses. I 
specifically worked for and achieved changes to the bill to make sure 
that no court would misinterpret this bill as outlawing legitimate 
consumer electronics devices or computer hardware. As a result, neither 
section 1201(a)(2) nor section 1201(b) should be read as outlawing any 
device with substantial non-infringing uses, as per the tests provided 
in those sections.
  If history is a guide, however, someone may yet try to use this bill 
as a basis for initiating litigation to stop legitimate new products 
from coming to market. By proposing the addition of section 1201(d)(2) 
and (3), I have sought to make clear that any such effort to use the 
courts to block the introduction of new technology should be bound to 
fail.
  As my colleagues may recall, this wouldn't be the first time someone 
has tried to stop the advance of new technology. In the mid 1970s, for 
example, a lawsuit was filed in an effort to block the introduction of 
the Betamax video recorder. I think it useful to recall what the 
Supreme Court had to say in ruling for consumers and against two movie 
studies in that case:

       One may search the Copyright Act in vain for any sign that 
     the elected representatives of the millions of people who 
     watch television every day have made it unlawful to copy a 
     program for later viewing at home, or have enacted a flat 
     prohibition against the sale of machines that make such 
     copying possible.

  As Missouri's Attorney General, I had the privilege to file a brief 
in the Supreme Court in support of the right of consumers to buy that 
first generation of VCRs. I want to make it clear that I did not come 
to Washington to vote for a bill that could be used to ban the next 
generation of recording equipment. I want to reassure consumers that 
nothing in the bill should be read to make it unlawful to produce and 
use the next generation of computers or VCRs or whatever future device 
will render one or the other of these familiar devices obsolete.
  Another important amendment was added that makes clear that this law 
does not mandate any particular selection of components for the design 
of any technology. I was concerned that this legislation could be 
interpreted as a mandate on product manufacturers to design products so 
as to respond affirmatively to effective technical protection measures 
available in the marketplace. In response to this concern I was pleased 
to offer an amendment, with the support of both the Chairman and the 
Ranking Member of the Committee, to avoid the unintended effect of 
having design requirements imposed on product and component 
manufacturers, which would have a dampening effect on innovation, and 
on the research and development of new products. Accordingly, my 
amendment clarified that product designers need not design consumer 
electronics, telecommunications, or computing products, nor design and 
select parts or components for such products, in order to respond to 
particular technological protection measures.
  This amendment reflects my belief that product manufacturers should 
remain free to design and produce consumer electronics, 
telecommunications and computing products without the threat of 
incurring liability for their design decisions under this legislation. 
Nothing could cause greater disaster and a swifter downfall of our 
vibrant technology sector than to have the federal government dictating 
the design of computer chips or mother boards. By way of example, 
during the course of our deliberations, we were made aware of certain 
video boards used in personal computers in order to allow consumers to 
receive television signals on their computer monitors which, in order 
to transform the television signal from a TV signal to one capable of 
display on a computer monitor, remove attributes of the original signal 
that may be associated with certain copy control technologies. I am 
acutely aware of this particular example because I have one of these 
video boards on my own computer back in my office. It is quite useful 
as it allows me to monitor the Senate floor, and occasionally ESPN on 
those rare occasions when the Senate is not in session. My amendment 
makes it clear that this legislation does not require that such 
transformations, which are part of the normal conversion process rather 
than affirmative attempts to remove or circumvent copy control 
technologies, fall within the proscriptions of chapter

[[Page S4891]]

12 of the copyright law as added by this bill.
  Further, concerns were voiced during the Committee's deliberations 
that because 1201 applies not only to devices but to parts and 
components of devices, it could be interpreted broadly to sweep in 
legitimate products such as personal computers and accessories and 
video and audio recording devices. While the manufacturers of these 
products were understandably concerned, it was quite apparent to me 
that it was not the Committee's intention that such useful multipurpose 
articles of commerce be prohibited by 1201 on the basis that they may 
have particular parts or components that might, if evaluated separately 
from such products, fall within the proscriptions of 1201(a)(2) or (b). 
My amendment adding sections 1201(d)(2) and (3) was intended to address 
these concerns.
  Another issue of concern is that unless product designers are 
adequately consulted on the design and implementation of technological 
protection measures and means of preserving copyright management 
information, such measures may have noticeable and recurring adverse 
effects on the authorized display or performance of works. Under such 
circumstances, certain adjustments to specific products may become 
necessary after sale to a consumer to maintain the normal, authorized 
functioning of such products. Such adjustments, when made solely to 
mitigate the adverse effects of the measure on the normal, authorized 
operation of a manufacturer's product, device, component, or part 
thereof, would not, in my view, constitute conduct that would fall 
within the proscriptions of this legislation.
  The problems described may occur at a more fundamental level--with 
noticeable and recurring adverse effects on the normal operation of 
products that are being manufactured and sold to consumers. The best 
way to avoid this problem is for companies and industries to work 
together to seek to avoid such problems to the maximum extent possible. 
I am pleased to note that multi-industry efforts to develop copy 
control technologies that are both effective and avoid such noticeable 
and recurring adverse effects have been underway over the past two 
years in relation to certain copy protection measures. I join my 
colleagues in strongly encouraging the continuation of these efforts, 
since, in my view, they offer substantial benefits to copyright owners 
who add so much to the economy and who obviously want devices that do 
not interfere with the other normal operations of affected products.
  The truth of the matter is that Congress ought to operate 
contemporaneously with industry to solve problems. Anytime the affected 
industries beat government to the solution they ought to be praised. In 
many respects I invite the private sector to be there first and get it 
done well. If they are there first, they will often solve the problem. 
Even when they cannot solve the problem, the private sector problem 
solving process will at least narrow the issues for the government to 
address. Getting a law passed is very difficult, getting it changed is 
sometimes even more difficult, and so relying on government really 
elevates the need to have no garbage in, to result in the right output.
  I would encourage the content community and the device and hardware 
manufacturers to work together to avoid situations in which effective 
technological measures and copyright management information affect 
display quality. There is no reason why the interested parties cannot 
resolve these issues to ensure both optimal protection of content and 
optimal picture quality. To the extent that a particular technological 
protection measure or means of applying or embedding copyright 
management information to or in a work is designed and deployed into 
the marketplace without adequate consultation with potentially affected 
manufacturers, the proprietor of such a measure or means and those 
copyright owners using it must be aware that product adjustments by a 
manufacturer to avoid noticeable and recurring adverse effects on the 
normal, authorized operation of affected products are foreseeable, 
legitimate and commercially necessary. Such actions by manufacturers 
may not, therefore, be proscribed by this chapter.
  Again, several individuals and organizations deserve thanks from 
everyone involved in this debate. I want to take a moment to thank 
those few particular staff who labored into the night and over weekends 
to put together this legislation and to accommodate some of my 
concerns. Ed Damich and Troy Dow with Senator Hatch's office were 
critical to moving forward on all issues particularly by coordinating 
the OSP discussions. Beryl Howell and Marla Grossman were similarly 
important to the process particularly in regards to the education 
provisions and on drafting language for several key areas. I would like 
to thank all of the individuals representing various industry and 
educational interests who were critical not only in educating me on the 
myriad issues but also on copyright law in general. Finally, I would 
again like to thank the members of my own staff, Bartlett Cleland and 
Paul Clement who worked so well to produce a piece of legislation that 
could guide this country to a digital future.
  In the end, this is not a perfect bill. I would have favored a 
different approach to some issues. However, this bill is an important 
step forward in bringing the copyright law into the digital age. I am 
happy to support this bill and look forward to its final passage.
  Mr. KOHL. Mr. President, I rise to express my support for the Digital 
Millennium Copyright Act of 1998. In my view, we need this measure to 
stop an epidemic of illegal copying of protected works--such as movies, 
books, musical recordings, and software. The copyright industry is one 
of our most thriving businesses. But we still lose more than $15 
billion each year due to foreign copyright piracy, according to some 
estimates.
  This foreign piracy is out of control. For example, one of my 
staffers investigating video piracy on a trip to China walked into a 
Hong Kong arcade and bought three bootlegged computer games--including 
``Toy Story'' and ``NBA `97''--for just $10. These games normally sell 
for about $100. Indeed, the manager was so brazen about it, he even 
agreed to give a receipt.
  Illegal copying has been a longstanding concern to me. I introduced 
one of the precursors to this bill, the Motion Picture Anti-Piracy Act, 
which in principle has been incorporated into this measure. And I was 
one of the original cosponsors of the original proposed WIPO 
implementing legislation, the preliminary version of this measure.
  In my opinion, this bill achieves a fair balance by taking steps to 
effectively deter piracy, while still allowing fair use of protected 
materials. It is the product of intensive negotiations between all of 
the interested parties--including the copyright industry, telephone 
companies, libraries, universities and device manufacturers. And every 
major concern raised during that process was addressed. For these 
reasons, it earned the unanimous support of the Judiciary Committee.
  I am confident that this bill has the best approach for stopping 
piracy and strengthening one of our biggest export industries. It 
deserves our support. Thank you.
  Mr. GRASSLEY. Mr. President, I wanted to make a few brief remarks on 
S. 2037, the Digital Millennium Copyright Act of 1998, which would 
implement the World Intellectual Property Organization treaties. The 
amendments adopted in Committee make some significant improvements to 
the original bill. For example, the bill now includes provisions 
clarifying educational institution and library liability and use 
exemptions, as well as provisions dealing with distance learning. The 
Committee also adopted provisions addressing concerns regarding 
pornography and privacy. Further, I worked with Senator Kyl to make 
sure that our law enforcement and intelligence people are able to carry 
out their duties in the best, and most effective, manner possible.
  It was important to me that the bill be clarified to ensure that 
parents are not prohibited from monitoring, or limiting access to, 
their children in regard to pornography and other indecent material on 
the Internet. I don't believe anyone wants to restrict parents' rights 
to take care of their children, or to take away tools that might be 
helpful for parents to ensure that their kids aren't accessing sites 
containing pornography. The interests of the copyright owners had to be 
balanced with the needs of consumers and

[[Page S4892]]

families. I think that the Committee made a significant improvement to 
the bill in defense of this important protection for our families.
  Also, the Committee worked on changes which protect individuals' 
right to privacy on the Internet. I've heard concerns about software 
programs, probes, contaminants and ``cookies,'' and how they obtain 
personal and confidential information on Internet users and then convey 
it to companies for commercial purposes, sometimes without the users 
even knowing that this is happening. Even if users are aware a 
``cookie'' or one of these other techniques has been sent to them, I 
think we'd all agree that Internet users should have a choice on 
whether to give up their personal information or not. While some argue 
that this is a non-issue because ``cookies'' and ``cookie-cutting'' do 
not violate the provisions of the bill, I've heard otherwise. In fact, 
I've heard about a case where a computer game company admitted that it 
surreptitiously collected personal information from users' computers 
when they were playing the game via the Internet. So I was not 
convinced that there did not need to be a clarification in the bill on 
this subject. The intent behind the bill is now clear that an Internet 
user can protect his or her privacy by disabling programs that transmit 
information on that user to other parties, or by utilizing software 
programs like ``cookie-cutters'' to do this.
  I'd also like to make a few remarks on the clarification Senator Kyl 
and I worked on dealing with the law enforcement exceptions in the 
bill. The changes Senator Kyl and I made substantially improve the 
bill's language by making it clear that the exceptions will protect 
officers, agents, employees, or contractors of, or other persons acting 
at the direction of, a law enforcement or intelligence agency of the 
United States, a State, or a political subdivision of a State, who are 
performing lawfully authorized investigative, protective, or 
intelligence activities. Further, the bill's language was clarified to 
indicate that the exceptions also apply to officers, agents, employees, 
or contractors of, or other persons acting at the direction of, any 
element or division of an agency or department of the United States, a 
State, or a political subdivision of a State, which does not have law 
enforcement or intelligence as its primary function, when those 
individuals are performing lawfully authorized investigative, 
protective, or intelligence activities. I'd like to note that the 
Committee report makes clear that these exceptions only apply when the 
individuals are performing these activities within the scope of their 
duties and in furtherance of lawfully authorized activities. Our law 
enforcement and intelligence people must have the opportunity and the 
tools to carry out their duties effectively. This language was crafted 
with the input and support of representatives from the law enforcement 
community, the Administration, as well as the content providers and 
other parties. I'd like to especially thank Senator Kyl and his fine 
staff for their hard work on this important clarification to the bill.
  I want to thank Senator Ashcroft and his staff for all the hard work 
and long hours they put into this difficult negotiations process to 
improve this bill. Their efforts in working for a balance of interests 
in the bill are to be commended. I'd also like to thank Chairman Hatch 
and Senator Leahy, and their staffs, for their hard work on the bill.
  Mrs. BOXER. Mr. President I am proud to support the Digital 
Millennium Copyright Act (DMCA) of 1998 which I believe is an important 
step in the evolution of international digital commerce. The DMCA 
accomplishes two important goals--it implements the World Intellectual 
Property Organization Copyright Treaty and the World Intellectual 
Property Organization Performances and Phonograms Treaty. Both treaties 
include provisions that respond to the challenges of digital 
technology.
  Although the treaties contain little that is not already covered by 
U.S. law, the treaties will provide U.S. copyright holders the 
worldwide protections they need and deserve. In addition, the treaties 
will go along way towards standardizing international copyright 
practice.
  Intellectual property, including copyright, is an integral part of 
the U.S. economy. The core copyright industries accounted for $238.6 
billion in value added to the U.S. economy, accounting for 
approximately 3.74 percent of the Gross Domestic Product. In addition, 
between 1977 and 1993, employment in the core copyright industries 
doubled to 3 million workers, about 2.5 percent of total U.S. 
employment. The copyright industries contribute more to the U.S. 
economy and employ more workers than any single manufacturing sector 
including aircraft, textiles and apparels or chemicals.
  Intellectual property is a particularly integral part of the economy 
of my home state of California. California is the leading producer of 
movies, computer software, recordings, video games, and other creative 
works. California's movie and television industries employed 
approximately 165,000 Californians in 1995 and the combined payroll of 
those industries was $7.4 billion. Similarly, the California pre-
packaged computer software industry employs more than 25,000 
Californians.
  Finally Mr. President, I want to note the importance of this bill to 
Online Service Providers (OSPs) and to Internet Service Providers 
(ISPs). I believe it is important to update our copyright laws to 
comport with the digital electronic age in which we now operate. This 
bill appropriately balances the interests of copyright holders and 
OSPs/ISPs. It ensures that creative works receive the protection they 
deserve while also assuring that OSPs/ISPs are not held liable for 
unknowingly posting infringing material or for merely providing the 
physical facilities used to upload infringing material.
  I think this is a good bill, a balanced and fair bill, and I am proud 
to support it.
  Mr. THOMPSON. Mr. President, I am pleased to support S. 2037, the 
Digital Millennium Copyright Act. This legislation implementing the 
World Intellectual Property Organization Treaty is of vital importance 
to the American economy.
  No nation benefits more from the protection of intellectual property 
than the United States. We lead the world in the production and export 
of intellectual property, including the many forms of artistic 
intellectual property and computer software. These industries are among 
the fastest growing employers in our country. When the owners of 
intellectual property are not fairly compensated, that hurts Americans 
and it decreases incentives for creating additional intellectual 
property that educates, entertains, and does business for us.
  New technology creates exciting opportunities for intellectual 
property, but the digital environment also poses threats to this form 
of property. Unscrupulous copyright violators can use the Internet to 
more widely distribute copyrighted material without permission. To 
maintain fair compensation to the owners of intellectual property, a 
regime for copyright protection in the digital age must be created. 
Technology to protect access to copyrighted work must be safeguarded. 
Copyright management information that identifies the copyright owner 
and the terms and conditions of use of the copyrighted material must be 
secured.
  There are new issues with respect to copyright in the digital age 
that never were issues before. The bill addresses such issues as on-
line service provider liability in a way that is fair to all parties. 
And it governs a number of other issues that have been accommodated in 
the new era.
  Passage of this bill is important if American intellectual property 
is to be protected in other countries. I was pleased to be an original 
co-sponsor of the initial bill, and to have supported the bill in the 
Judiciary Committee and now on the floor. I strongly support its 
enactment.
  Mrs. FEINSTEIN. Mr. President, it is with great pleasure that I rise 
today to speak on passage of S. 2037, the Digital Millennium Copyright 
Act. This Act implements two treaties adopted by the World Intellectual 
Property Organization, or WIPO, in December, 1996--the WIPO Copyright 
Treaty and the WIPO Performances and Phonograms Treaty.
  Passage of this important legislation will clear the way for 
ratification of these treaties, which are in the paramount interest of 
the United States--

[[Page S4893]]

and of the State of California, in particular. These treaties are 
intended to ensure that foreign countries give intellectual property to 
the same high level of protection that we afford it here in the U.S.
  The United States is the world's leader in intellectual property, the 
home of the most creative and dynamic individuals and enterprises in 
the world--the majority of whom are located in California. This 
industry constitutes a very important sector of the U.S. economy, and 
contributes greatly to our global economic position: American creative 
industries grew twice as fast as the rest of the U.S. economy from 
1987-94; more than 3 million Americans worked in the core copyright 
industries as of 1994; exports of U.S. intellectual property were more 
than $53 billion in 1995; and the Business Software Alliance reports 
that 50-60 percent of its revenues come from overseas.
  It is vital that we do everything we can to protect and defend this 
important sector of the economy from foreign piracy, especially in this 
new digital age, when the potential exists for thousands of absolutely 
perfect, priated copies of American intellectual property to be made 
almost instantly, at the tough of a button: American copyright owners 
lose $15 billion in overseas sales to piracy every year; the digital 
gaming industry loses $3.2 billion per year to priacy--almost one third 
of its $10.1 billion annual sales; and the recording industry's 
domestic business is flat and they need a strong export market for 
sales growth.
  Indeed, some countries, such as Argentina, have said that computer 
programs aren't even protected by copyright; ratifying WIPO will ensure 
that they are. Foreign countries have been waiting for the U.S., as the 
world's largest producer of intellectual property, to take the lead in 
WIPO ratification before the ratify the WIPO treaty, so this is an 
important step we are taking today.
  The bill which we crafted in the Judiciary Committee is a truly 
impressive achievement. We worked together with a plethora of diverse 
industries, academic interests, and law enforcement to forge a bill 
which advances everybody's interest.
  Title I of the bill implements the WIPO treaties, and outlaws so-
called ``black boxes'': devices designed to accomplish the perfect 
digital piracy which I have mentioned. By protecting against this 
piracy and paving the way for ratification of the WIPO treaties, this 
title provides immense help to America's creative industries, including 
authors, composers, publishers, performers, movie-makers, the recording 
industry, and the software industry.

  Title II of the bill provides for protection from copyright 
infringement liability for on-line service providers who act 
responsibly. This title provides much-desired protection for on-line 
service providers, such as Yahoo! from my State of California, 
telecommunications companies, and educational institutions.
  Title II includes a provision which I authored, section 204 of the 
bill, which requires the Copyright Office to take a comprehensive look 
at the issue of the liability of schools and universities for the acts 
of their students and faculty who may use their network to post 
infringing materials, and to make recommendations for legislation.
  Among the factors which the Copyright Office is to consider are: What 
is the direct, vicarious, and contributory liability of universities 
for infringement by: faculty, administrative employees, students, 
graduate students, and students who are employed by the university.
  What other users of university computers universities may be 
responsible for; the unique nature of the relationship between 
universities and faculty; what policies should universities adopt 
regarding copyright infringement by university computer users; what 
technological measures are available to monitor infringing uses; what 
monitoring of the computer system by universities is appropriate; what 
due process should the universities afford in disabling access by 
allegedly infringing computer users; should distinctions be drawn 
between open computer systems, closed computer systems, and open 
systems with password-protected parts; and taking into account the 
tradition of academic freedom.
  I want to thank the Chairman, Senator Hatch, and the Ranking Member, 
Senator Leahy, for working with me on this provision.
  It is my hope and expectation that copyright content providers and 
the educational community will get together and work cooperatively to 
address these issues during the course of the Copyright Office study.
  Title III of the bill ensures that computer maintenance and repair 
providers will not be found liable for copyright infringement for 
performing their ordinary services.
  Title IV of the bill provides additional copyright exemptions for 
libraries, archives and broadcasters, and another study, of distance 
learning, which could benefit educational institutions.
  So this bill helps an incredibly broad spectrum of American 
interests: authors, telecommunications, universities, computer makers, 
movies, software, broadcasters, and on and on. No small number of these 
industries are centered or have very substantial presence in, and 
immense importance to the economy of, my state of California.
  Thus, it is with great pleasure that I applaud the passage of this 
legislation, and urge the House to protect America's economy and 
rapidly pass it as well.
  Mr. KYL. Mr. President: I rise today to speak about a section in the 
Digital Millennium Copyright Act that I am particularly proud of, and 
that is the law enforcement exception in the bill. At the Judiciary 
Committee mark-up, Senator Grassley and I, along with the assistance of 
Chairman Hatch and Senator Ashcroft worked to strengthen the law 
enforcement exception in the bill. We received input on the language 
from the copyright community and the administration: the National 
Security Agency (NSA), the Central Intelligence Agency (CIA), the 
Departments of Commerce and Justice, and the Office of Management and 
Budget (OMB).
  The law enforcement exception ensures that the government continues 
to have access to current and future technologies to assist in their 
investigative, protective, or intelligence activities. I am concerned 
that the tools and resources of our intelligence and law enforcement 
communities are preserved--and more importantly, not limited, by 
passage of S. 2037. Under this bill, a company who contracts with the 
government can continue to develop encryption/decryption devices under 
that contract, without having to worry about criminal penalties.
  Because much of our leading technologies come from the private 
sector, the government needs to have access to this vital resource for 
intelligence and law enforcement purposes.
  The law enforcement exception recognizes that oftentimes governmental 
agencies work with non-governmental entities--companies, in order to 
have access to and develop cutting edge technologies and devices. Such 
conduct should not be prohibited or impeded by this copyright 
legislation.
  Mr. BIDEN. Mr. President, I commend my colleagues for their hard work 
on this legislation--which implements the two world intellectual 
property organization copyright treaties adopted by the 1996 Geneva 
diplomatic conference.
  As is the practice on such intellectual property matters, we are 
first seeking to pass the implementing legislation. This, I believe, 
will pave the way for the Foreign Relations Committee--and the full 
senate--to ratify the treaties, which the administration submitted last 
July.
  The WIPO treaties and the implementing legislation will update 
intellectual property law to deal with the explosion of the Internet 
and other forms of electronic communications. Delegates from the United 
States and 160 other member nations agreed to give authors of 
``literary and artistic works,'' including books, computer programs, 
films, and sound recordings, the exclusive right to sell or otherwise 
make their work available to the public.
  The treaties give tougher international protection to software makers 
and the recording industry--the U.S. Government's biggest goal. The 
U.S. wanted--and got--tough international protection for sound 
recordings in order to stop pirating of music compact discs overseas. 
The treaties protect literary and artistic works from

[[Page S4894]]

digital copying, but do not make it illegal to use the Internet in the 
normal way.
  To give a concrete example of what passage and implementation of the 
WIPO treaties will mean--before the treaty it was illegal to photocopy 
the contents of an entire book or copy a videotape without permission, 
but it was not clear whether it was illegal to e-mail copies of a 
digital book or movie to 500 friends all over the world. Passage of 
this bill and the WIPO treaties will ensure that both will be illegal--
both domestically and overseas.
  I am pleased that this bill contains provisions to clarify the 
actions Internet service providers--as well as libraries and 
educational institutions--will be legally required to take when 
confronted with evidence of copyright violations by users of their 
services.
  I am also pleased that this bill contains language intended to 
preserve the ability of consumer electronics manufacturers--and 
computer manufacturers and software developers--to continue research 
and development of innovative devices and hardware products.
  These provisions in my view strike an appropriate balance between the 
rights of copyright holders and the need to encourage continuing 
expansion of access to digital information to greater numbers of users 
throughout the world.
  Therefore, I commend my Judiciary Committee colleagues for their hard 
work on this bill and I look forward to its passage by the Congress.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, we are prepared to yield back the remainder 
of our time. First, I understand that the Senator from Illinois would 
like up to 2 minutes. We will yield that time to him, and then we will 
yield the remainder of the time and go to a vote.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, many good reasons have been stated on the 
floor for the passage of this important legislation. I hold in my hand 
convincing evidence. It is an unsolicited e-mail sent to my Senate 
computer a few weeks ago. It boasts that they will offer for me to 
purchase 500 different bootleg video games from a person who says in 
this solicitation, ``All the games I sell are pirated. I do not sell 
originals.'' This business is operating across the United States, 
Canada, England, Australia, and claims to trade copies made in Hong 
Kong.
  When you think of the importance of intellectual property to 
America's exports and the importance of this business in terms of the 
United States and the world, it is clear that we need this legislation 
to stop this type of flagrant abuse, which I received and I am sure 
many others could receive if they surf the Internet.
  I commend Senators Hatch, Leahy, Ashcroft, and so many others. I urge 
its unanimous passage and yield the remainder of my time.
  Mr. HATCH. Mr. President, on behalf of Senator Leahy and myself, I 
yield the remainder of our time. The yeas and nays have been ordered.
  The PRESIDING OFFICER. All time having been yielded, the question is 
on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER. The question is on passage of the bill, as 
amended. The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from New Hampshire (Mr. 
Gregg) is necessarily absent.
  The result was announced--yeas 99, nays 0, as follows:

                      [Rollcall Vote No. 137 Leg.]

                                YEAS--99

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Cleland
     Coats
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Enzi
     Faircloth
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone
     Wyden

                             NOT VOTING--1

       
     Gregg
       
  The bill (S. 2037), as amended, was passed, as follows:

                                S. 2037

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Digital Millennium Copyright 
     Act of 1998''.

     SEC. 2. TABLE OF CONTENTS.

Sec. 1. Short title.
Sec. 2. Table of contents.

                 TITLE I--WIPO TREATIES IMPLEMENTATION

Sec. 101. Short title.
Sec. 102. Technical amendments.
Sec. 103. Copyright protection systems and copyright management 
              information.
Sec. 104. Conforming amendment.
Sec. 105. Effective date.

          TITLE II--INTERNET COPYRIGHT INFRINGEMENT LIABILITY

Sec. 201. Short title.
Sec. 202. Limitations on liability for Internet copyright infringement.
Sec. 203. Conforming amendment.
Sec. 204. Liability of educational institutions for online infringement 
              of copyright.
Sec. 205. Effective date.

               TITLE III--COMPUTER MAINTENANCE OR REPAIR

Sec. 301. Limitation on exclusive rights; computer programs.

   TITLE IV--EPHEMERAL RECORDINGS; DISTANCE EDUCATION; EXEMPTION FOR 
                         LIBRARIES AND ARCHIVES

Sec. 401. Ephemeral recordings.
Sec. 402. Limitations on exclusive rights; distance education.
Sec. 403. Exemption for libraries and archives.
                 TITLE I--WIPO TREATIES IMPLEMENTATION

     SEC. 101. SHORT TITLE.

       This title may be cited as the ``WIPO Copyright and 
     Performances and Phonograms Treaties Implementation Act of 
     1998''.

     SEC. 102. TECHNICAL AMENDMENTS.

       (a) Section 101 of title 17, United States Code, is 
     amended--
       (1) by deleting the definition of ``Berne Convention 
     work'';
       (2) in the definition of ``The `country of origin' of a 
     Berne Convention work'', by deleting ``The `country of 
     origin' of a Berne Convention work,'', capitalizing the first 
     letter of the word ``for'', deleting ``is the United States'' 
     after ``For purposes of section 411,'', and inserting ``a 
     work is a `United States work' only'' after ``For purposes of 
     section 411,'';
       (3) in paragraph (1)(B) of the definition of ``The `country 
     of origin' of a Berne Convention work'', by inserting 
     ``treaty party or parties'' and deleting ``nation or nations 
     adhering to the Berne Convention'';
       (4) in paragraph (1)(C) of the definition of ``The `country 
     of origin' of a Berne Convention work'', by inserting ``is 
     not a treaty party'' and deleting ``does not adhere to the 
     Berne Convention'';
       (5) in paragraph (1)(D) of the definition of ``The `country 
     of origin' of a Berne Convention work'', by inserting ``is 
     not a treaty party'' and deleting ``does not adhere to the 
     Berne Convention'';
       (6) in subsection (3) of the definition of ``The `country 
     of origin' of a Berne Convention work'', by deleting ``For 
     the purposes of section 411, the `country of origin' of any 
     other Berne Convention work is not the United States.'';
       (7) after the definition for ``fixed'', by inserting ``The 
     `Geneva Phonograms Convention' is the Convention for the 
     Protection of Producers of Phonograms Against Unauthorized 
     Duplication of Their Phonograms, concluded at Geneva, 
     Switzerland on October 29, 1971.'';
       (8) after the definition for ``including'', by inserting 
     ``An `international agreement' is--
       ``(1) the Universal Copyright Convention;
       ``(2) the Geneva Phonograms Convention;
       ``(3) the Berne Convention;
       ``(4) the WTO Agreement;
       ``(5) the WIPO Copyright Treaty;
       ``(6) the WIPO Performances and Phonograms Treaty; and
       ``(7) any other copyright treaty to which the United States 
     is a party.'';
       (9) after the definition for ``transmit'', by inserting ``A 
     `treaty party' is a country or intergovernmental organization 
     other than the United States that is a party to an 
     international agreement.'';
       (10) after the definition for ``widow'', by inserting ``The 
     `WIPO Copyright Treaty' is the WIPO Copyright Treaty 
     concluded at Geneva, Switzerland, on December 20, 1996.'';

[[Page S4895]]

       (11) after the definition for ``The `WIPO Copyright 
     Treaty', by inserting ``The `WIPO Performances and Phonograms 
     Treaty' is the WIPO Performances and Phonograms Treaty 
     concluded at Geneva, Switzerland on December 20, 1996.''; and
       (12) by inserting, after the definition for ``work for 
     hire'', ``The `WTO Agreement' is the Agreement Establishing 
     the World Trade Organization entered into on April 15, 1994. 
     The terms `WTO Agreement' and `WTO member country' have the 
     meanings given those terms in paragraphs (9) and (10) 
     respectively of section 2 of the Uruguay Round Agreements 
     Act.''.
       (b) Section 104 of title 17, United States Code, is 
     amended--
       (1) in subsection (b)(1), by deleting ``foreign nation that 
     is a party to a copyright treaty to which the United States 
     is also a party'' and inserting ``treaty party'';
       (2) in subsection (b)(2) by deleting ``party to the 
     Universal Copyright Convention'' and inserting ``treaty 
     party'';
       (3) by renumbering the present subsection (b)(3) as (b)(5) 
     and moving it to its proper sequential location and inserting 
     a new subsection (b)(3) to read:
       ``(3) the work is a sound recording that was first fixed in 
     a treaty party; or'';
       (4) in subsection (b)(4) by deleting ``Berne Convention 
     work'' and inserting ``pictorial, graphic or sculptural work 
     that is incorporated in a building or other structure, or an 
     architectural work that is embodied in a building and the 
     building or structure is located in the United States or a 
     treaty party'';
       (5) by renumbering present subsection (b)(5) as (b)(6);
       (6) by inserting a new subsection (b)(7) to read:
       ``(7) for purposes of paragraph (2), a work that is 
     published in the United States or a treaty party within 
     thirty days of publication in a foreign nation that is not a 
     treaty party shall be considered first published in the 
     United States or such treaty party as the case may be.''; and
       (7) by inserting a new subsection (d) to read:
       ``(d) Effect of Phonograms Treaties.--Notwithstanding the 
     provisions of subsection (b), no works other than sound 
     recordings shall be eligible for protection under this title 
     solely by virtue of the adherence of the United States to the 
     Geneva Phonograms Convention or the WIPO Performances and 
     Phonograms Treaty.''.
       (c) Section 104A(h) of title 17, United States Code, is 
     amended--
       (1) in paragraph (1), by deleting ``(A) a nation adhering 
     to the Berne Convention or a WTO member country; or (B) 
     subject to a Presidential proclamation under subsection 
     (g),'' and inserting--
       ``(A) a nation adhering to the Berne Convention;
       ``(B) a WTO member country;
       ``(C) a nation adhering to the WIPO Copyright Treaty;
       ``(D) a nation adhering to the WIPO Performances and 
     Phonograms Treaty; or
       ``(E) subject to a Presidential proclamation under 
     subsection (g)'';
       (2) paragraph (3) is amended to read as follows:
       ``(3) the term `eligible country' means a nation, other 
     than the United States that--
       ``(A) becomes a WTO member country after the date of 
     enactment of the Uruguay Round Agreements Act;
       ``(B) on the date of enactment is, or after the date of 
     enactment becomes, a nation adhering to the Berne Convention;
       ``(C) adheres to the WIPO Copyright Treaty;
       ``(D) adheres to the WIPO Performances and Phonograms 
     Treaty; or
       ``(E) after such date of enactment becomes subject to a 
     proclamation under subsection (g).'';
       (3) in paragraph (6)(C)(iii), by deleting ``and'' after 
     ``eligibility'';
       (4) at the end of paragraph (6)(D), by deleting the period 
     and inserting ``; and'';
       (5) by adding the following new paragraph (6)(E):
       ``(E) if the source country for the work is an eligible 
     country solely by virtue of its adherence to the WIPO 
     Performances and Phonograms Treaty, is a sound recording.'';
       (6) in paragraph (8)(B)(i), by inserting ``of which'' 
     before ``the majority'' and striking ``of eligible 
     countries''; and
       (7) by deleting paragraph (9).
       (d) Section 411 of title 17, United States Code, is 
     amended--
       (1) in subsection (a), by deleting ``actions for 
     infringement of copyright in Berne Convention works whose 
     country of origin is not the United States and''; and
       (2) in subsection (a), by inserting ``United States'' after 
     ``no action for infringement of the copyright in any''.
       (e) Section 507(a) of title 17, United States Code, is 
     amended by adding at the beginning, ``Except as expressly 
     provided elsewhere in this title,''.

     SEC. 103. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT 
                   MANAGEMENT INFORMATION.

       Title 17, United States Code, is amended by adding the 
     following new chapter:

       ``CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS

``Sec.
``1201. Circumvention of copyright protection systems.
``1202. Integrity of copyright management information.
``1203. Civil remedies.
``1204. Criminal offenses and penalties.
``1205. Savings Clause.

     ``Sec. 1201. Circumvention of copyright protection systems

       ``(a) Violations Regarding Circumvention of Technological 
     Protection Measures.--(1) No person shall circumvent a 
     technological protection measure that effectively controls 
     access to a work protected under this title.
       ``(2) No person shall manufacture, import, offer to the 
     public, provide or otherwise traffic in any technology, 
     product, service, device, component, or part thereof that--
       ``(A) is primarily designed or produced for the purpose of 
     circumventing a technological protection measure that 
     effectively controls access to a work protected under this 
     title;
       ``(B) has only limited commercially significant purpose or 
     use other than to circumvent a technological protection 
     measure that effectively controls access to a work protected 
     under this title; or
       ``(C) is marketed by that person or another acting in 
     concert with that person with that person's knowledge for use 
     in circumventing a technological protection measure that 
     effectively controls access to a work protected under this 
     title.
       ``(3) As used in this subsection--
       ``(A) to `circumvent a technological protection measure' 
     means to descramble a scrambled work, to decrypt an encrypted 
     work, or otherwise to avoid, bypass, remove, deactivate, or 
     impair a technological protection measure, without the 
     authority of the copyright owner; and
       ``(B) a technological protection measure `effectively 
     controls access to a work' if the measure, in the ordinary 
     course of its operation, requires the application of 
     information, or a process or a treatment, with the authority 
     of the copyright owner, to gain access to the work.
       ``(b) Additional Violations.--(1) No person shall 
     manufacture, import, offer to the public, provide, or 
     otherwise traffic in any technology, product, service, 
     device, component, or part thereof that--
       ``(A) is primarily designed or produced for the purpose of 
     circumventing protection afforded by a technological 
     protection measure that effectively protects a right of a 
     copyright owner under this title in a work or a portion 
     thereof;
       ``(B) has only limited commercially significant purpose or 
     use other than to circumvent protection afforded by a 
     technological protection measure that effectively protects a 
     right of a copyright owner under this title in a work or a 
     portion thereof; or
       ``(C) is marketed by that person or another acting in 
     concert with that person with that person's knowledge for use 
     in circumventing protection afforded by a technological 
     protection measure that effectively protects a right of a 
     copyright owner under this title in a work or a portion 
     thereof.
       ``(2) As used in this subsection--
       ``(A) to `circumvent protection afforded by a technological 
     protection measure' means avoiding, bypassing, removing, 
     deactivating, or otherwise impairing a technological 
     protection measure; and
       ``(B) a technological protection measure `effectively 
     protects a right of a copyright owner under this title' if 
     the measure, in the ordinary course of its operation, 
     prevents, restricts, or otherwise limits the exercise of a 
     right of a copyright owner under this title.
       ``(c) Other Rights, Etc., Not Affected.--(1) Nothing in 
     this section shall affect rights, remedies, limitations, or 
     defenses to copyright infringement, including fair use, under 
     this title.
       ``(2) Nothing in this section shall enlarge or diminish 
     vicarious or contributory liability for copyright 
     infringement in connection with any technology, product, 
     service, device, component or part thereof.
       ``(3) Nothing in this section shall require that the design 
     of, or design and selection of parts and components for, a 
     consumer electronics, telecommunications, or computing 
     product provide for a response to any particular 
     technological protection measure, so long as such part or 
     component or the product, in which such part or component is 
     integrated, does not otherwise fall within the prohibitions 
     of subsection (a)(2) or (b)(1).
       ``(d) Exemption for Nonprofit Libraries, Archives, and 
     Educational Institutions.--(1) A nonprofit library, archives, 
     or educational institution which gains access to a 
     commercially exploited copyrighted work solely in order to 
     make a good faith determination of whether to acquire a copy 
     of that work for the sole purpose of engaging in conduct 
     permitted under this title shall not be in violation of 
     subsection (a)(1). A copy of a work to which access has been 
     gained under this paragraph--
       ``(A) may not be retained longer than necessary to make 
     such good faith determination; and
       ``(B) may not be used for any other purpose.
       ``(2) The exemption made available under paragraph (1) 
     shall only apply with respect to a work when an identical 
     copy of that work is not reasonably available in another 
     form.
       ``(3) A nonprofit library, archives, or educational 
     institution that willfully for the purpose of commercial 
     advantage or financial gain violates paragraph (1)--
       ``(A) shall, for the first offense, be subject to the civil 
     remedies under section 1203; and
       ``(B) shall, for repeated or subsequent offenses, in 
     addition to the civil remedies

[[Page S4896]]

     under section 1203, forfeit the exemption provided under 
     paragraph (1).
       ``(4) This subsection may not be used as a defense to a 
     claim under subsection (a)(2) or (b), nor may this subsection 
     permit a nonprofit library, archives, or educational 
     institution to manufacture, import, offer to the public, 
     provide, or otherwise traffic in any technology which 
     circumvents a technological protection measure.
       ``(5) In order for a library or archives to qualify for the 
     exemption under this subsection, the collections of that 
     library or archives shall be--
       ``(A) open to the public; or
       ``(B) available not only to researchers affiliated with the 
     library or archives or with the institution of which it is a 
     part, but also to other persons doing research in a 
     specialized field.
       ``(e) Law Enforcement and Intelligence Activities.--This 
     section does not prohibit any lawfully authorized 
     investigative, protective, or intelligence activity of an 
     officer, agent or employee of the United States, a State, or 
     a political subdivision of a State, or a person acting 
     pursuant to a contract with such entities.
       ``(f) Notwithstanding the provisions of subsection (a)(1), 
     a person who has lawfully obtained the right to use a copy of 
     a computer program may circumvent a technological protection 
     measure that effectively controls access to a particular 
     portion of that program for the sole purpose of identifying 
     and analyzing those elements of the program that are 
     necessary to achieve interoperability of an independently 
     created computer program with other programs, and that have 
     not previously been readily available to the person engaging 
     in the circumvention, to the extent any such acts of 
     identification and analysis do not constitute infringement 
     under this title.
       ``(g) Notwithstanding the provisions of subsections (a)(2) 
     and (b), a person may develop and employ technological means 
     to circumvent for the identification and analysis described 
     in subsection (f), or for the limited purpose of achieving 
     interoperability of an independently created computer program 
     with other programs, where such means are necessary to 
     achieve such interoperability, to the extent that doing so 
     does not constitute infringement under this title.
       ``(h) The information acquired through the acts permitted 
     under subsection (f), and the means permitted under 
     subsection (g), may be made available to others if the person 
     referred to in subsections (f) or (g) provides such 
     information or means solely for the purpose of achieving 
     interoperability of an independently created computer program 
     with other programs, and to the extent that doing so does not 
     constitute infringement under this title, or violate 
     applicable law other than this title.
       ``(i) For purposes of subsections (f), (g), and (h), the 
     term ``interoperability'' means the ability of computer 
     programs to exchange information, and for such programs 
     mutually to use the information which has been exchanged.
       ``(j) In applying subsection (a) to a component or part, 
     the court may consider the necessity for its intended and 
     actual incorporation in a technology, product, service or 
     device, which (i) does not itself violate the provisions of 
     this chapter and (ii) has the sole purpose to prevent the 
     access of minors to material on the Internet.

     ``Sec. 1202. Integrity of copyright management information

       ``(a) False Copyright Management Information.--No person 
     shall knowingly and with the intent to induce, enable, 
     facilitate or conceal infringement--
       ``(1) provide copyright management information that is 
     false, or
       ``(2) distribute or import for distribution copyright 
     management information that is false.
       ``(b) Removal or Alteration of Copyright Management 
     Information.--No person shall, without the authority of the 
     copyright owner or the law--
       ``(1) intentionally remove or alter any copyright 
     management information,
       ``(2) distribute or import for distribution copyright 
     management information knowing that the copyright management 
     information has been removed or altered without authority of 
     the copyright owner or the law, or
       ``(3) distribute, import for distribution, or publicly 
     perform works, copies of works, or phonorecords, knowing that 
     copyright management information has been removed or altered 
     without authority of the copyright owner or the law,

     knowing, or, with respect to civil remedies under section 
     1203, having reasonable grounds to know, that it will induce, 
     enable, facilitate or conceal an infringement of any right 
     under this title.
       ``(c) Definition.--As used in this chapter, `copyright 
     management information' means the following information 
     conveyed in connection with copies or phonorecords of a work 
     or performances or displays of a work, including in digital 
     form--
       ``(1) the title and other information identifying the work, 
     including the information set forth on a notice of copyright;
       ``(2) the name of, and other identifying information about, 
     the author of a work;
       ``(3) the name of, and other identifying information about, 
     the copyright owner of the work, including the information 
     set forth in a notice of copyright;
       ``(4) with the exception of public performances of works by 
     radio and television broadcast stations the name of, and 
     other identifying information about, a performer whose 
     performance is fixed in a work other than an audiovisual 
     work;
       ``(5) with the exception of public performances of works by 
     radio and television broadcast stations, in the case of an 
     audiovisual work, the name of, and other identifying 
     information about, a writer, performer, or director who is 
     credited in the audiovisual work;
       ``(6) terms and conditions for use of the work;
       ``(7) identifying numbers or symbols referring to such 
     information or links to such information; or
       ``(8) such other information as the Register of Copyrights 
     may prescribe by regulation, except that the Register of 
     Copyrights may not require the provision of any information 
     concerning the user of a copyrighted work.
       ``(d) Law Enforcement and Intelligence Activities.--This 
     section does not prohibit any lawfully authorized 
     investigative, protective, or intelligence activity of an 
     officer, agent, or employee of the United States, a State, or 
     a political subdivision of a State, or a person acting 
     pursuant to a contract with such entities.
       ``(e) Limitations on Liability.--
       ``(1) Analog transmissions.--In the case of an analog 
     transmission, a person who is making transmissions in its 
     capacity as a radio or television broadcast station, or as a 
     cable system, or someone who provides programming to such 
     station or system, shall not be liable for a violation of 
     subsection (b) if--
       ``(A) avoiding the activity that constitutes such violation 
     is not technically feasible or would create an undue 
     financial hardship on such person; and
       ``(B) such person did not intend, by engaging in such 
     activity, to induce, enable, facilitate or conceal 
     infringement.
       ``(2) Digital transmissions.--
       ``(A) If a digital transmission standard for the placement 
     of copyright management information for a category of works 
     is set in a voluntary, consensus standard-setting process 
     involving a representative cross-section of radio or 
     television broadcast stations or cable systems and copyright 
     owners of a category of works that are intended for public 
     performance by such stations or systems, a person identified 
     in subsection (e)(1) shall not be liable for a violation of 
     subsection (b) with respect to the particular copyright 
     management information addressed by such standard if--
       ``(i) the placement of such information by someone other 
     than such person is not in accordance with such standard; and
       ``(ii) the activity that constitutes such violation is not 
     intended to induce, enable, facilitate or conceal 
     infringement.
       ``(B) Until a digital transmission standard has been set 
     pursuant to subparagraph (A) with respect to the placement of 
     copyright management information for a category or works, a 
     person identified in subsection (e)(1) shall not be liable 
     for a violation of subsection (b) with respect to such 
     copyright management information, where the activity that 
     constitutes such violation is not intended to induce, enable, 
     facilitate or conceal infringement, if--
       ``(i) the transmission of such information by such person 
     would result in a perceptible visual or aural degradation of 
     the digital signal; or
       ``(ii) the transmission of such information by such person 
     would conflict with--

       ``(I) an applicable government regulation relating to 
     transmission of information in a digital signal;
       ``(II) an applicable industry-wide standard relating to the 
     transmission of information in a digital signal that was 
     adopted by a voluntary consensus standards body prior to the 
     effective date of this section; or
       ``(III) an applicable industry-wide standard relating to 
     the transmission of information in a digital signal that was 
     adopted in a voluntary, consensus standards-setting process 
     open to participation by a representative cross-section of 
     radio or television broadcast stations or cable systems and 
     copyright owners of a category of works that are intended for 
     public performance by such stations or systems.

     ``Sec. 1203. Civil remedies

       ``(a) Civil Actions.--Any person injured by a violation of 
     section 1201 or 1202 may bring a civil action in an 
     appropriate United States district court for such violation.
       ``(b) Powers of the Court.--In an action brought under 
     subsection (a), the court--
       ``(1) may grant temporary and permanent injunctions on such 
     terms as it deems reasonable to prevent or restrain a 
     violation;
       ``(2) at any time while an action is pending, may order the 
     impounding, on such terms as it deems reasonable, of any 
     device or product that is in the custody or control of the 
     alleged violator and that the court has reasonable cause to 
     believe was involved in a violation;
       ``(3) may award damages under subsection (c);
       ``(4) in its discretion may allow the recovery of costs by 
     or against any party other than the United States or an 
     officer thereof;
       ``(5) in its discretion may award reasonable attorney's 
     fees to the prevailing party; and
       ``(6) may, as part of a final judgment or decree finding a 
     violation, order the remedial modification or the destruction 
     of any device or product involved in the violation that is

[[Page S4897]]

     in the custody or control of the violator or has been 
     impounded under paragraph (2).
       ``(c) Award of Damages.--
       ``(1) In general.--Except as otherwise provided in this 
     chapter, a person committing a violation of section 1201 or 
     1202 is liable for either--
       ``(A) the actual damages and any additional profits of the 
     violator, as provided in paragraph (2), or
       ``(B) statutory damages, as provided in paragraph (3).
       ``(2) Actual damages.--The court shall award to the 
     complaining party the actual damages suffered by the party as 
     a result of the violation, and any profits of the violator 
     that are attributable to the violation and are not taken into 
     account in computing the actual damages, if the complaining 
     party elects such damages at any time before final judgment 
     is entered.
       ``(3) Statutory damages.--
       ``(A) At any time before final judgment is entered, a 
     complaining party may elect to recover an award of statutory 
     damages for each violation of section 1201 in the sum of not 
     less than $200 or more than $2,500 per act of circumvention, 
     device, product, component, offer, or performance of service, 
     as the court considers just.
       ``(B) At any time before final judgment is entered, a 
     complaining party may elect to recover an award of statutory 
     damages for each violation of section 1202 in the sum of not 
     less than $2,500 or more than $25,000.
       ``(4) Repeated violations.--In any case in which the 
     injured party sustains the burden of proving, and the court 
     finds, that a person has violated section 1201 or 1202 within 
     three years after a final judgment was entered against the 
     person for another such violation, the court may increase the 
     award of damages up to triple the amount that would otherwise 
     be awarded, as the court considers just.
       ``(5) Innocent violations.--
       ``(A) In general.--The court in its discretion may reduce 
     or remit the total award of damages in any case in which the 
     violator sustains the burden of proving, and the court finds, 
     that the violator was not aware and had no reason to believe 
     that its acts constituted a violation.
       ``(B) Nonprofit library, archives, or educational 
     institutions.--In the case of a nonprofit library, archives, 
     or educational institution, the court shall remit damages in 
     any case in which the library, archives, or educational 
     institution sustains the burden of proving, and the court 
     finds, that the library, archives, or educational institution 
     was not aware and had no reason to believe that its acts 
     constituted a violation.

     ``Sec. 1204. Criminal offenses and penalties

       ``(a) In General.--Any person who violates section 1201 or 
     1202 willfully and for purposes of commercial advantage or 
     private financial gain--
       ``(1) shall be fined not more than $500,000 or imprisoned 
     for not more than 5 years, or both for the first offense; and
       ``(2) shall be fined not more than $1,000,000 or imprisoned 
     for not more than 10 years, or both for any subsequent 
     offense.
       ``(b) Limitation for Nonprofit Library, Archives, or 
     Educational Institution.--Subsection (a) shall not apply to a 
     nonprofit library, archives, or educational institution.
       ``(c) Statute of Limitations.--Notwithstanding section 
     507(a) of this title, no criminal proceeding shall be brought 
     under this section unless such proceeding is commenced within 
     five years after the cause of action arose.

     ``Sec. 1205. Savings Clause

       ``Nothing in this chapter abrogates, diminishes or weakens 
     the provisions of, nor provides any defense or element of 
     mitigation in a criminal prosecution or civil action under, 
     any Federal or State law that prevents the violation of the 
     privacy of an individual in connection with the individual's 
     use of the Internet.''.

     SEC. 104. CONFORMING AMENDMENT.

       The table of chapters for title 17, United States Code, is 
     amended by adding at the end the following:

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

     SEC. 105. EFFECTIVE DATE.

       (a) In General.--Subject to subsection (b), the amendments 
     made by this title shall take effect on the date of the 
     enactment of this Act.
       (b) Amendments Relating to Certain International 
     Agreements.--(1) The following shall take effect upon entry 
     into force of the WIPO Copyright Treaty with respect to the 
     United States:
       (A) paragraph (5) of the definition of ``international 
     agreement'' contained in section 101 of title 17, United 
     States Code, as amended by section 102(a)(8) of this title.
       (B) the amendment made by section 102(a)(10) of this title;
       (C) subparagraph (C) of section 104A(h)(1) of title 17, 
     United States Code, as amended by section 102(c)(1) of this 
     title; and
       (D) subparagraph (C) of section 104A(h)(3) of title 17, 
     United States Code, as amended by section 102(c)(2) of this 
     title.
       (2) The following shall take effect upon the entry into 
     force of the WIPO Performances and Phonograms Treaty with 
     respect to the United States:
       (A) paragraph (6) of the definition of ``international 
     agreement'' contained in section 101 of title 17, United 
     States Code, as amended by section 102(a)(8) of this title.
       (B) the amendment made by section 102(a)(11) of this title;
       (C) the amendment made by section 102(b)(7) of this title;
       (D) Subparagraph (D) of section 104A(h)(1) of title 17, 
     United States Code, as amended by section 102(c)(2) of this 
     title; and
       (E) the amendment made by section 102(c)(4) of this title; 
     and
       (F) the amendment made by section 102(c)(5) of this title.
          TITLE II--INTERNET COPYRIGHT INFRINGEMENT LIABILITY

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Internet Copyright 
     Infringement Liability Clarification Act of 1998''.

     SEC. 202. LIMITATIONS ON LIABILITY FOR INTERNET COPYRIGHT 
                   INFRINGEMENT.

       (a) In General.--Chapter 5 of title 17, United States Code, 
     is amended by adding after section 511 the following new 
     section:

     ``Sec. 512. Liability of service providers for online 
       infringement of copyright

       ``(a) Digital Network Communications.--A service provider 
     shall not be liable for monetary relief, or except as 
     provided in subsection (i) for injunctive or other equitable 
     relief, for infringement for the provider's transmitting, 
     routing, or providing connections for, material through a 
     system or network controlled or operated by or for the 
     service provider, or the intermediate and transient storage 
     of such material in the course of such transmitting, routing 
     or providing connections, if--
       ``(1) it was initiated by or at the direction of a person 
     other than the service provider;
       ``(2) it is carried out through an automatic technical 
     process without selection of such material by the service 
     provider;
       ``(3) the service provider does not select the recipients 
     of such material except as an automatic response to the 
     request of another;
       ``(4) no such copy of such material made by the service 
     provider is maintained on the system or network in a manner 
     ordinarily accessible to anyone other than anticipated 
     recipients, and no such copy is maintained on the system or 
     network in a manner ordinarily accessible to the anticipated 
     recipients for a longer period than is reasonably necessary 
     for the communication; and
       ``(5) the material is transmitted without modification to 
     its content.
       ``(b) System Caching.--A service provider shall not be 
     liable for monetary relief, or except as provided in 
     subsection (i) for injunctive or other equitable relief, for 
     infringement for the intermediate and temporary storage of 
     material on the system or network controlled or operated by 
     or for the service provider, where (i) such material is made 
     available online by a person other than such service 
     provider, (ii) such material is transmitted from the person 
     described in clause (i) through such system or network to 
     someone other than that person at the direction of such other 
     person, and (iii) the storage is carried out through an 
     automatic technical process for the purpose of making such 
     material available to users of such system or network who 
     subsequently request access to that material from the person 
     described in clause (i), provided that:
       ``(1) such material is transmitted to such subsequent users 
     without modification to its content from the manner in which 
     the material otherwise was transmitted from the person 
     described in clause (i);
       ``(2) such service provider complies with rules concerning 
     the refreshing, reloading or other updating of such material 
     when specified by the person making that material available 
     online in accordance with an accepted industry standard data 
     communications protocol for the system or network through 
     which that person makes the material available; provided that 
     the rules are not used by the person described in clause (i) 
     to prevent or unreasonably impair such intermediate storage;
       ``(3) such service provider does not interfere with the 
     ability of technology associated with such material that 
     returns to the person described in clause (i) the information 
     that would have been available to such person if such 
     material had been obtained by such subsequent users directly 
     from such person, provided that such technology--
       ``(A) does not significantly interfere with the performance 
     of the provider's system or network or with the intermediate 
     storage of the material;
       ``(B) is consistent with accepted industry standard 
     communications protocols; and
       ``(C) does not extract information from the provider's 
     system or network other than the information that would have 
     been available to such person if such material had been 
     accessed by such users directly from such person;
       ``(4) either--
       ``(A) the person described in clause (i) does not currently 
     condition access to such material; or
       ``(B) if access to such material is so conditioned by such 
     person, by a current individual pre-condition, such as a pre-
     condition based on payment of a fee, or provision of a 
     password or other information, the service provider permits 
     access to the stored material in significant part only to 
     users of its system or network that have been so authorized 
     and only in accordance with those conditions; and
       ``(5) if the person described in clause (i) makes that 
     material available online without the authorization of the 
     copyright owner, then the service provider responds 
     expeditiously to remove, or disable access to, the material 
     that is claimed to be infringing

[[Page S4898]]

     upon notification of claimed infringements described in 
     subsection (c)(3); provided that the material has previously 
     been removed from the originating site, and the party giving 
     the notification includes in the notification a statement 
     confirming that such material has been removed or access to 
     it has been disabled or ordered to be removed or have access 
     disabled.
       ``(c) Information Stored on Service Providers.--
       ``(1) In general.--A service provider shall not be liable 
     for monetary relief, or except as provided in subsection (i) 
     for injunctive or other equitable relief, for infringement 
     for the 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, if the service provider--
       ``(A)(i) does not have actual knowledge that the material 
     or activity is infringing,
       ``(ii) in the absence of such actual knowledge, is not 
     aware of facts or circumstances from which infringing 
     activity is apparent, or
       ``(iii) if upon obtaining such knowledge or awareness, the 
     service provider acts expeditiously to remove or disable 
     access to, the material;
       ``(B) does not receive a financial benefit directly 
     attributable to the infringing activity, where the service 
     provider has the right and ability to control such activity; 
     and
       ``(C) in the instance of a notification of claimed 
     infringement as described in paragraph (3), responds 
     expeditiously to remove, or disable access to, the material 
     that is claimed to be infringing or to be the subject of 
     infringing activity.
       ``(2) Designated agent.--The limitations on liability 
     established in this subsection apply only if the service 
     provider has designated an agent to receive notifications of 
     claimed infringement described in paragraph (3), by 
     substantially making the name, address, phone number, 
     electronic mail address of such agent, and other contact 
     information deemed appropriate by the Register of Copyrights, 
     available through its service, including on its website, and 
     by providing such information to the Copyright Office. The 
     Register of Copyrights shall maintain a current directory of 
     agents available to the public for inspection, including 
     through the Internet, in both electronic and hard copy 
     formats.
       ``(3) Elements of notification.--
       ``(A) To be effective under this subsection, a notification 
     of claimed infringement means any written communication 
     provided to the service provider's designated agent that 
     includes substantially the following:
       ``(i) a physical or electronic signature of a person 
     authorized to act on behalf of the owner of an exclusive 
     right that is allegedly infringed;
       ``(ii) identification of the copyrighted work claimed to 
     have been infringed, or, if multiple such works at a single 
     online site are covered by a single notification, a 
     representative list of such works at that site;
       ``(iii) identification of the material that is claimed to 
     be infringing or to be the subject of infringing activity 
     that is to be removed or access to which is to be disabled, 
     and information reasonably sufficient to permit the service 
     provider to locate the material;
       ``(iv) information reasonably sufficient to permit the 
     service provider to contact the complaining party, such as an 
     address, telephone number, and, if available an electronic 
     mail address at which the complaining party may be contacted;
       ``(v) a statement that the complaining party has a good 
     faith belief that use of the material in the manner 
     complained of is not authorized by the copyright owner, or 
     its agent, or the law; and
       ``(vi) a statement that the information in the notification 
     is accurate, and under penalty of perjury, that the 
     complaining party has the authority to enforce the owner's 
     rights that are claimed to be infringed.
       ``(B) A notification from the copyright owner or from a 
     person authorized to act on behalf of the copyright owner 
     that fails substantially to conform to the provisions of 
     paragraph (3)(A) shall not be considered under paragraph 
     (1)(A) in determining whether a service provider has actual 
     knowledge or is aware of facts or circumstances from which 
     infringing activity is apparent, provided that the provider 
     promptly attempts to contact the complaining party or takes 
     other reasonable steps to assist in the receipt of notice 
     under paragraph (3)(A) when the notice is provided to the 
     service provider's designated agent and substantially 
     satisfies the provisions of paragraphs (3)(A) (ii), (iii), 
     and (iv).
       ``(d) Information Location Tools.--A service provider shall 
     not be liable for monetary relief, or except as provided in 
     subsection (i) for injunctive or other equitable relief, for 
     infringement for the provider referring or linking users to 
     an online location containing infringing material or activity 
     by using information location tools, including a directory, 
     index, reference, pointer or hypertext link, if the 
     provider--
       ``(1) does not have actual knowledge that the material or 
     activity is infringing or, in the absence of such actual 
     knowledge, is not aware of facts or circumstances from which 
     infringing activity is apparent;
       ``(2) does not receive a financial benefit directly 
     attributable to the infringing activity, where the service 
     provider has the right and ability to control such activity; 
     and
       ``(3) responds expeditiously to remove or disable the 
     reference or link upon notification of claimed infringement 
     as described in subsection (c)(3); provided that for the 
     purposes of this paragraph, the element in subsection 
     (c)(3)(A)(iii) shall be identification of the reference or 
     link, to material or activity claimed to be infringing, that 
     is to be removed or access to which is to be disabled, and 
     information reasonably sufficient to permit the service 
     provider to locate such reference or link.
       ``(e) Misrepresentations.--Any person who knowingly 
     materially misrepresents under this section (1) that material 
     or activity is infringing, or (2) that material or activity 
     was removed or disabled by mistake or misidentification, 
     shall be liable for any damages, including costs and 
     attorneys' fees, incurred by the alleged infringer, by any 
     copyright owner or copyright owner's authorized licensee, or 
     by the service provider, who is injured by such 
     misrepresentation, as the result of the service provider 
     relying upon such misrepresentation in removing or disabling 
     access to the material or activity claimed to be infringing, 
     or in replacing the removed material or ceasing to disable 
     access to it.
       ``(f) Replacement of Removed or Disabled Material and 
     Limitation on Other Liability.--
       ``(1) Subject to paragraph (2) of this subsection, a 
     service provider shall not be liable to any person for any 
     claim based on the service provider's good faith disabling of 
     access to, or removal of, material or activity claimed to be 
     infringing or based on facts or circumstances from which 
     infringing activity is apparent, regardless of whether the 
     material or activity is ultimately determined to be 
     infringing.
       ``(2) Paragraph (1) of this subsection shall not apply with 
     respect to material residing at the direction of a subscriber 
     of the service provider on a system or network controlled or 
     operated by or for the service provider that is removed, or 
     to which access is disabled by the service provider pursuant 
     to a notice provided under subsection (c)(1)(C), unless the 
     service provider--
       ``(A) takes reasonable steps promptly to notify the 
     subscriber that it has removed or disabled access to the 
     material;
       ``(B) upon receipt of a counter notice as described in 
     paragraph (3), promptly provides the person who provided the 
     notice under subsection (c)(1)(C) with a copy of the counter 
     notice, and informs such person that it will replace the 
     removed material or cease disabling access to it in ten 
     business days; and
       ``(C) replaces the removed material and ceases disabling 
     access to it not less than ten, nor more than fourteen, 
     business days following receipt of the counter notice, unless 
     its designated agent first receives notice from the person 
     who submitted the notification under subsection (c)(1)(C) 
     that such person has filed an action seeking a court order to 
     restrain the subscriber from engaging in infringing activity 
     relating to the material on the service provider's system or 
     network.
       ``(3) To be effective under this subsection, a counter 
     notification means any written communication provided to the 
     service provider's designated agent that includes 
     substantially the following:
       ``(A) a physical or electronic signature of the subscriber;
       ``(B) identification of the material that has been removed 
     or to which access has been disabled and the location at 
     which such material appeared before it was removed or access 
     was disabled;
       ``(C) a statement under penalty of perjury that the 
     subscriber has a good faith belief that the material was 
     removed or disabled as a result of mistake or 
     misidentification of the material to be removed or disabled;
       ``(D) the subscriber's name, address and telephone number, 
     and a statement that the subscriber consents to the 
     jurisdiction of Federal Court for the judicial district in 
     which the address is located, or if the subscriber's address 
     is outside of the United States, for any judicial district in 
     which the service provider may be found, and that the 
     subscriber will accept service of process from the person who 
     provided notice under subsection (c)(1)(C) or agent of such 
     person.
       ``(4) A service provider's compliance with paragraph (2) 
     shall not subject the service provider to liability for 
     copyright infringement with respect to the material 
     identified in the notice provided under subsection (c)(1)(C).
       ``(g) Identification of Direct Infringer.--The copyright 
     owner or a person authorized to act on the owner's behalf may 
     request an order for release of identification of an alleged 
     infringer by filing (i) a copy of a notification described in 
     subsection (c)(3)(A), including a proposed order, and (ii) a 
     sworn declaration that the purpose of the order is to obtain 
     the identity of an alleged infringer and that such 
     information will only be used for the purpose of this title, 
     with the clerk of any United States district court. The order 
     shall authorize and order the service provider receiving the 
     notification to disclose expeditiously to the copyright owner 
     or person authorized by the copyright owner information 
     sufficient to identify the alleged direct infringer of the 
     material described in the notification to the extent such 
     information is available to the service provider. The order 
     shall be expeditiously issued if the accompanying 
     notification satisfies the provisions of subsection (c)(3)(A) 
     and the accompanying declaration is properly executed. Upon 
     receipt of the order, either accompanying or subsequent to 
     the receipt of a notification described in subsection 
     (c)(3)(A), a service provider shall expeditiously give to the

[[Page S4899]]

     copyright owner or person authorized by the copyright owner 
     the information required by the order, notwithstanding any 
     other provision of law and regardless of whether the service 
     provider responds to the notification.
       ``(h) Conditions for Eligibility.--
       ``(1) Accommodation of technology.--The limitations on 
     liability established by this section shall apply only if the 
     service provider--
       ``(A) has adopted and reasonably implemented, and informs 
     subscribers of the service of, a policy for the termination 
     of subscribers of the service who are repeat infringers; and
       ``(B) accommodates and does not interfere with standard 
     technical measures as defined in this subsection.
       ``(2) Definition.--As used in this section, ``standard 
     technical measures'' are technical measures, used by 
     copyright owners to identify or protect copyrighted works, 
     that--
       ``(A) have been developed pursuant to a broad consensus of 
     copyright owners and service providers in an open, fair, 
     voluntary, multi-industry standards process;
       ``(B) are available to any person on reasonable and 
     nondiscriminatory terms; and
       ``(C) do not impose substantial costs on service providers 
     or substantial burdens on their systems or networks.
       ``(i) Injunctions.--The following rules shall apply in the 
     case of any application for an injunction under section 502 
     against a service provider that is not subject to monetary 
     remedies by operation of this section:
       ``(1) Scope of relief.--
       ``(A) With respect to conduct other than that which 
     qualifies for the limitation on remedies as set forth in 
     subsection (a), the court may only grant injunctive relief 
     with respect to a service provider in one or more of the 
     following forms:
       ``(i) an order restraining it from providing access to 
     infringing material or activity residing at a particular 
     online site on the provider's system or network;
       ``(ii) an order restraining it from providing access to an 
     identified subscriber of the service provider's system or 
     network who is engaging in infringing activity by terminating 
     the specified accounts of such subscriber; or
       ``(iii) such other injunctive remedies as the court may 
     consider necessary to prevent or restrain infringement of 
     specified copyrighted material at a particular online 
     location, provided that such remedies are the least 
     burdensome to the service provider that are comparably 
     effective for that purpose.
       ``(B) If the service provider qualifies for the limitation 
     on remedies described in subsection (a), the court may only 
     grant injunctive relief in one or both of the following 
     forms:
       ``(i) an order restraining it from providing access to an 
     identified subscriber of the service provider's system or 
     network who is using the provider's service to engage in 
     infringing activity by terminating the specified accounts of 
     such subscriber; or
       ``(ii) an order restraining it from providing access, by 
     taking specified reasonable steps to block access, to a 
     specific, identified, foreign online location.
       ``(2) Considerations.--The court, in considering the 
     relevant criteria for injunctive relief under applicable law, 
     shall consider:
       ``(A) whether such an injunction, either alone or in 
     combination with other such injunctions issued against the 
     same service provider under this subsection, would 
     significantly burden either the provider or the operation of 
     the provider's system or network;
       ``(B) the magnitude of the harm likely to be suffered by 
     the copyright owner in the digital network environment if 
     steps are not taken to prevent or restrain the infringement;
       ``(C) whether implementation of such an injunction would be 
     technically feasible and effective, and would not interfere 
     with access to noninfringing material at other online 
     locations; and
       ``(D) whether other less burdensome and comparably 
     effective means of preventing or restraining access to the 
     infringing material are available.
       ``(3) Notice and ex parte orders.--Injunctive relief under 
     this subsection shall not be available without notice to the 
     service provider and an opportunity for such provider to 
     appear, except for orders ensuring the preservation of 
     evidence or other orders having no material adverse effect on 
     the operation of the service provider's communications 
     network.
       ``(j) Definitions.--
       ``(1)(A) As used in subsection (a), the term ``service 
     provider'' means an entity offering the transmission, routing 
     or providing of connections for digital online 
     communications, between or among points specified by a user, 
     of material of the user's choosing, without modification to 
     the content of the material as sent or received.
       ``(B) As used in any other subsection of this section, the 
     term ``service provider'' means a provider of online services 
     or network access, or the operator of facilities therefor, 
     and includes an entity described in the preceding paragraph 
     of this subsection.
       ``(2) As used in this section, the term ``monetary relief'' 
     means damages, costs, attorneys' fees, and any other form of 
     monetary payment.
       ``(k) Other Defenses Not Affected.--The failure of a 
     service provider's conduct to qualify for limitation of 
     liability under this section shall not bear adversely upon 
     the consideration of a defense by the service provider that 
     the service provider's conduct is not infringing under this 
     title or any other defense.
       ``(l) Protection of Privacy.--Nothing in this section shall 
     be construed to condition the applicability of subsections 
     (a) through (d) on--
       ``(1) a service provider monitoring its service or 
     affirmatively seeking facts indicating infringing activity 
     except to the extent consistent with a standard technical 
     measure complying with the provisions of subsection (h); or
       ``(2) a service provider accessing, removing, or disabling 
     access to material where such conduct is prohibited by law.
       ``(m) Rule of Construction.--Subsections (a), (b), (c), and 
     (d) are intended to describe separate and distinct functions 
     for purposes of analysis under this section. Whether a 
     service provider qualifies for the limitation on liability in 
     any one such subsection shall be based solely on the criteria 
     in each such subsection and shall not affect a determination 
     of whether such service provider qualifies for the 
     limitations on liability under any other such subsection.''.

     SEC. 203. CONFORMING AMENDMENT.

       The table of sections for chapter 5 of title 17, United 
     States Code, is amended by adding at the end the following:

``512. Liability of service providers for online infringement of 
              copyright.''.

      SEC. 204. LIABILITY OF EDUCATIONAL INSTITUTIONS FOR ONLINE 
                   INFRINGEMENT OF COPYRIGHT.

       (a) Not later than six months after the date of enactment 
     of this Act, the Register of Copyrights, after consultation 
     with representatives of copyright owners and nonprofit 
     educational institutions, shall submit to the Congress 
     recommendations regarding the liability of nonprofit 
     educational institutions for copyright infringement committed 
     with the use of computer systems for which such an 
     institution is a service provider, as that term is defined in 
     section 512 of title 17, United States Code, (as amended by 
     this Act), including recommendations for legislation the 
     Register of Copyrights considers appropriate regarding such 
     liability, if any.
       (b) In formulating recommendations, the Register of 
     Copyrights shall consider, where relevant--
       (1) current law regarding the direct, vicarious, and 
     contributory liability of nonprofit educational institutions 
     for infringement by faculty, administrative employees, 
     students, graduate students, and students who are employees 
     of a nonprofit educational institution;
       (2) other users of their computer systems for whom 
     nonprofit educational institutions may be responsible;
       (3) the unique nature of the relationship between nonprofit 
     educational institutions and faculty;
       (4) what policies nonprofit educational institutions should 
     adopt regarding copyright infringement by users of their 
     computer systems;
       (5) what technological measures are available to monitor 
     infringing uses;
       (6) what monitoring of their computer systems by nonprofit 
     educational institutions is appropriate;
       (7) what due process nonprofit educational institutions 
     should afford in disabling access by users of their computer 
     systems who are alleged to have committed copyright 
     infringement;
       (8) what distinctions, if any, should be drawn between 
     computer systems which may be accessed from outside the 
     nonprofit educational systems, those which may not, and 
     combinations thereof;
       (9) the tradition of academic freedom; and
       (10) such other issues relating to the liability of 
     nonprofit educational institutions for copyright infringement 
     committed with the use of computer systems for which such an 
     institution is a service provider that the Register considers 
     appropriate.

     SEC. 205. EFFECTIVE DATE.

       This title and the amendments made by this title shall take 
     effect on the date of the enactment of this Act.
               TITLE III--COMPUTER MAINTENANCE OR REPAIR

     SEC. 301. LIMITATION ON EXCLUSIVE RIGHTS; COMPUTER PROGRAMS.

       Section 117 of title 17, United States Code, is amended--
       (1) by striking ``Notwithstanding'' and inserting the 
     following:
       ``(a) Making of Additional Copy or Adaptation by Owner of 
     Copy.--Notwithstanding'';
       (2) by striking ``Any exact'' and inserting the following:
       ``(b) Lease, Sale, or Other Transfer of Additional Copy or 
     Adaptation.--Any exact''; and
       (3) by adding at the end the following new subsections:
       ``(c) Machine Maintenance or Repair.--Notwithstanding the 
     provisions of section 106, it is not an infringement for an 
     owner or lessee of a machine to make or authorize the making 
     of a copy of a computer program if such copy is made solely 
     by virtue of the activation of a machine that lawfully 
     contains an authorized copy of the computer program, for 
     purposes only of maintenance or repair of that machine, if--
       ``(1) such new copy is used in no other manner and is 
     destroyed immediately after the maintenance or repair is 
     completed; and
       ``(2) with respect to any computer program or part thereof 
     that is not necessary for that

[[Page S4900]]

     machine to be activated, such program or part thereof is not 
     accessed or used other than to make such new copy by virtue 
     of the activation of the machine.
       ``(d) Definitions.--For purposes of this section--
       ``(1) the `maintenance' of a machine is the servicing of 
     the machine in order to make it work in accordance with its 
     original specifications and any changes to those 
     specifications authorized for that machine; and
       ``(2) the `repair' of a machine is the restoring of the 
     machine to the state of working in accordance with its 
     original specifications and any changes to those 
     specifications authorized for that machine.''.
   TITLE IV--EPHEMERAL RECORDINGS; DISTANCE EDUCATION; EXEMPTION FOR 
                         LIBRARIES AND ARCHIVES

     SEC. 401. EPHEMERAL RECORDINGS.

       Section 112 of title 17, United States Code is amended by--
       (1) redesignating section 112(a) as 112(a)(1), and 
     renumbering sections 112(a) (1), (2), and (3) as sections 
     112(a)(1) (A), (B), and (C), respectively;
       (2) in section 112(a)(1), after the reference to section 
     114(a), add the words ``or for a transmitting organization 
     that is a broadcast radio or television station licensed as 
     such by the Federal Communications Commission that broadcasts 
     a performance of a sound recording in a digital format on a 
     nonsubscription basis,'';
       (3) adding new section 112(a)(2) as follows:
       ``(2) Where a transmitting organization entitled to make a 
     copy or phonorecord under section 112(a)(1) in connection 
     with the transmission to the public of a performance or 
     display of a work pursuant to that section is prevented from 
     making such copy or phonorecord by reason of the application 
     by the copyright owner of technical measures that prevent the 
     reproduction of the work, such copyright owner shall make 
     available to the transmitting organization the necessary 
     means for permitting the making of such copy or phonorecord 
     within the meaning of that section, provided that it is 
     technologically feasible and economically reasonable for the 
     copyright owner to do so, and provided further that, if such 
     copyright owner fails to do so in a timely manner in light of 
     the transmitting organization's reasonable business 
     requirements, the transmitting organization shall not be 
     liable for a violation of section 1201(a)(1) of this title 
     for engaging in such activities as are necessary to make such 
     copies or phonorecords as permitted under section 
     112(a)(1).''.

     SEC. 402. LIMITATIONS ON EXCLUSIVE RIGHTS; DISTANCE 
                   EDUCATION.

       (a) Not later than six months after the date of enactment 
     of this Act, the Register of Copyrights, after consultation 
     with representatives of copyright owners, nonprofit 
     educational institutions and nonprofit libraries and 
     archives, shall submit to the Congress recommendations on how 
     to promote distance education through digital technologies, 
     including interactive digital networks, while maintaining an 
     appropriate balance between the rights of copyright owners 
     and the needs of users. Such recommendations shall include 
     any legislation the Register of Copyrights considers 
     appropriate to achieve the foregoing objective.
       (b) In formulating recommendations, the Register of 
     Copyrights shall consider--
       (1) the need for an exemption from exclusive rights for 
     distance education through digital networks;
       (2) the categories of works to be included under any 
     distance education exemption;
       (3) the extent of appropriate quantitative limitations on 
     the portions of works that may be used under any distance 
     education exemption;
       (4) the parties who should be entitled to the benefits of 
     any distance education exemption;
       (5) the parties who should be designated as eligible 
     recipients of distance education materials under any distance 
     education exemption;
       (6) whether and what types of technological measures can 
     and/or should be employed to safeguard against unauthorized 
     access to, and use or retention of, copyrighted materials as 
     a condition to eligibility for any distance education 
     exemption, including, in light of developing technological 
     capabilities, the exemption set out in section 110(2);
       (7) the extent to which the availability of licenses for 
     the use of copyrighted works in distance education through 
     interactive digital networks should be considered in 
     assessing eligibility for any distance education exemption; 
     and
       (8) such other issues relating to distance education 
     through interactive digital networks that the Register 
     considers appropriate.

     SEC. 403. EXEMPTION FOR LIBRARIES AND ARCHIVES.

       Section 108 of title 17, United States Code, is amended--
       (1) in subsection (a) by--
       (A) striking ``Notwithstanding'' and inserting ``Except as 
     otherwise provided and notwithstanding'';
       (B) inserting after ``no more than one copy of phonorecord 
     of a work'' the following: ``except as provided in 
     subsections (b) and (c),''; and
       (C) by inserting after ``copyright'' in clause (3) the 
     following: ``if such notice appears on the copy or 
     phonorecord that is reproduced under the provisions of this 
     section, or a legend stating that the work may be protected 
     by copyright if no such notice can be found on the copy or 
     phonorecord that is reproduced under the provisions of this 
     section'';
       (2) in subsection (b) by--
       (A) striking ``a copy or phonorecord'' and inserting in 
     lieu thereof ``three copies or phonorecords'';
       (B) striking ``in facsimile form''; and
       (C) striking ``if the copy or phonorecord reproduced is 
     currently in the collections of the library or archives.'' 
     and inserting in lieu thereof ``if--
       ``(1) the copy or phonorecord reproduced is currently in 
     the collections of the library or archives; and
       ``(2) any such copy or phonorecord that is reproduced in 
     digital format is not otherwise distributed in that format 
     and is not made available to the public outside the premises 
     of the library or archives in that format.''; and
       (3) in subsection (c) by--
       (A) striking ``a copy or phonorecord'' and inserting in 
     lieu thereof ``three copies or phonorecords'';
       (B) striking ``in facsimile form'';
       (C) inserting ``or if the existing format in which the work 
     is stored has become obsolete,'' after ``stolen,''; and
       (D) striking ``if the library or archives has, after a 
     reasonable effort, determined that an unused replacement 
     cannot be obtained at a fair price.'' and inserting in lieu 
     thereof ``if--
       ``(1) the library or archives has, after a reasonable 
     effort, determined that an unused replacement cannot be 
     obtained at a fair price; and
       ``(2) any such copy or phonorecord that is reproduced in 
     digital format is not made available to the public in that 
     format except for use on the premises of the library or 
     archives in lawful possession of such copy.'';
       (E) adding at the end the following: ``For purposes of this 
     subsection, a format shall be considered obsolete if the 
     machine or device necessary to render perceptible a work 
     stored in that format is no longer manufactured or is no 
     longer reasonably available in the commercial marketplace.''.

  Mr. HATCH. Mr. President, I move to reconsider the vote.
  Mr. SMITH of Oregon. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Mississippi.

                          ____________________