Computer underground Digest Wed Apr 29, 1998 Volume 10 : Issue 27

Computer underground Digest Wed Apr 29, 1998 Volume 10 : Issue 27
ISSN 1004-042X

Editor: Jim Thomas ([email protected])
News Editor: Gordon Meyer ([email protected])
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest

CONTENTS, #10.27 (Wed, Apr 29, 1998)

File 1--Digital Millennium Copyright Act - as of 3 April 1998
File 2--Cu Digest Header Info (unchanged since 25 Apr, 1998)

CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.

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Date: Fri, 10 Apr 1998 00:34:31 -0500
From: [email protected](Jim Thomas)
Subject: file 1--Digital Millennium Copyright Act - as of 3 April 1998

Digital Millennium Copyright Act - as of 3 April 1998

105TH CONGRESS

2nd SESSION S. _____

_____________

IN THE SENATE OF THE UNITED STATES

Mr. HATCH (for himself and )

introduced the following bill; which was read twice and referred to
the Committee on

_____________

A BILL

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.

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 amendments

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. Effective date

TITLE III--COMPUTER MAINTENANCE OR REPAIR

Sec. 301. Limitation on exclusive rights; computer programs

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 subsection (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 subsection (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 subsection (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 section (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.";

(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 section (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 section (b)(2) by deleting "party to the Universal Copyright
Convention" and inserting "treaty party";

(3) by renumbering the present section (b)(3) as (b)(5) and moving
it to its proper sequential location and inserting a new section
(b)(3) to read:

"(3) the work is a sound recording that was first fixed in a treaty
party; or";

(4) in section (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 section (b)(5) as (b)(6);

(6) by inserting a new section (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 section (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.

"'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 for use in circumventing a

technological protection measure that effectively controls access to
a work protected under title 17.

"(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 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) Importation.--The importation into the United States, the sale
for importation, or the sale within the United States after
importation by the owner, importer, or consignee of any technology,
product, service, device, component, or part thereof as described in
subsection (a) or (b) shall be actionable under section 337 of the
Tariff Act of 1930 (17 U.S.C. 1337).

"(d) Other Rights, Etc., Not Affected.--Nothing in this section
shall affect rights, remedies, limitations, or defenses to copyright
infringement, including fair use, under this title.

"(e) 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 ve 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 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.

"(f) Law Enforcement and Intelligence Activities.--This section
does not prohibit any lawfully authorized investigative, protective,
or intelligence activity of a law enforcement agency of the United
States, a State, or a political subdivision of a State, or of an
intelligence agency of the United States.

"'1202. Integrity of copyright management information

"(a) False Copyright Management Information.--No person shall
knowingly--

"(1) provide copyright management information that is false, or

"(2) distribute or import for distribution copyright management
information that is false, with the intent to induce, enable,
facilitate or conceal infringement.

"(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) terms and conditions for use of the work;

"(5) identifying numbers of symbols referring to such information
or links to such information; or

"(6) 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 a law enforcement agency of the United
States, a State, or a political subdivision of a State, or of an
intelligence agency of the United States.

"'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 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.

"'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. 104. CONFORMING AMENDMENTS.

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:

"'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 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, or 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 subparagraphs (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 that material or activity is infringing 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.

"(f) Limitation on Other Liability.--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.

"(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
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. 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 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.".

------------------------------

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Date: Thu, 25 Apr 1998 22:51:01 CST
From: CuD Moderators <[email protected]>
Subject: file 2--Cu Digest Header Info (unchanged since 25 Apr, 1998)

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End of Computer Underground Digest #10.27
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