105th CONGRESS
2d Session
S. 2037
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: Provided,
That--
`(1) such material is made available online by a person
other than such service provider,
`(2) such material is transmitted from the person
described in paragraph (1) through such system or network to
someone other than that person at the direction of such other
person,
`(3) 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
paragraph (1):
Provided further, That--
`(4) 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 paragraph (1);
`(5) 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
further, That the rules are not used by the person
described in paragraph (1) to prevent or unreasonably impair
such intermediate storage;
`(6) such service provider does not interfere with the
ability of technology associated with such material that
returns to the person described in paragraph (1) 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 further, 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;
`(7) either--
`(A) the person described in paragraph (1) 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
`(8) if the person described in paragraph (1) 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 upon notification of claimed
infringements described in subsection (c)(3): Provided
further, 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 10, nor more than
14, 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--
(1) a copy of a notification described in subsection
(c)(3)(A), including a proposed order, and
(2) 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 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.