(a) Violations Regarding Circumvention
of Technological Measures. — (1)(A) No person shall circumvent a technological
measure that effectively controls access to a work protected under this title.
The prohibition contained in the preceding sentence shall take effect at the
end of the 2-year period beginning on the date of the enactment of this chapter.
(B) The prohibition contained
in subparagraph (A) shall not apply to persons who are users of a copyrighted
work which is in a particular class of works, if such persons are, or are likely
to be in the succeeding 3-year period, adversely affected by virtue of such prohibition
in their ability to make noninfringing uses of that particular class of works
under this title, as determined under subparagraph (C).
(C) During the 2-year period described in subparagraph
(A), and during each succeeding 3-year period, the Librarian of Congress,
upon the recommendation of the Register of Copyrights, who shall consult with
the Assistant Secretary for Communications and Information of the Department
of Commerce and report and comment on his or her views in making such recommendation,
shall make the determination in a rulemaking proceeding for purposes of subparagraph
(B) of whether persons who are users of a copyrighted work are, or are likely
to be in the succeeding 3-year period, adversely affected by the prohibition
under subparagraph (A) in their ability to make noninfringing uses under this
title of a particular class of copyrighted works. In conducting such rulemaking,
the Librarian shall examine —
(i) the
availability for use of copyrighted works;
(ii) the
availability for use of works for nonprofit archival, preservation, and educational
purposes;
(iii) the impact that the prohibition on the
circumvention of technological measures applied to copyrighted works has on criticism,
comment, news reporting, teaching, scholarship, or research;
(iv)
the effect of circumvention of technological measures on the market for or value
of copyrighted works; and
(v) such other factors as
the Librarian considers appropriate.
(D) The Librarian
shall publish any class of copyrighted works for which the Librarian has determined,
pursuant to the rulemaking conducted under subparagraph (C), that noninfringing
uses by persons who are users of a copyrighted work are, or are likely to be,
adversely affected, and the prohibition contained in subparagraph (A) shall not
apply to such users with respect to such class of works for the ensuing 3-year
period.
(E) Neither the exception under subparagraph
(B) from the applicability
of the prohibition contained
in subparagraph (A), nor any determination made in a rulemaking conducted under
subparagraph (C), may be used as a defense in any action to enforce any provision
of this title other than this paragraph.
(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
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 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 measure that effectively controls access to a work protected under
this title.
(3) As used in this subsection —
(A)
to “circumvent a technological measure” means to descramble a scrambled
work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate,
or impair a technological measure, without the authority of the copyright owner;
and
(B) a technological 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 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
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 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 measure” means
avoiding, bypassing, removing, deactivating, or otherwise impairing a technological
measure; and
(B) a technological 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 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).
(4)
Nothing in this section shall enlarge or diminish any rights of free speech or
the press for activities using consumer electronics, telecommunications, or computing
products.
(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).
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, product, service, component, or part thereof, which
circumvents a technological 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, Intelligence,
and Other Government Activities. — This section does not prohibit any
lawfully authorized investigative, protective, information security, 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 the United States, a State, or a political subdivision of a State. For
purposes of this subsection, the term “information security” means
activities carried out in order to identify and address the vulnerabilities
of a government computer, computer system, or computer network.
(f) Reverse Engineering. — (1)
Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully
obtained the right to use a copy of a computer program may circumvent a technological
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.
(2) Notwithstanding the provisions of subsections
(a)(2) and (b), a person may develop and employ technological means to circumvent
a technological measure, or to circumvent protection afforded by a technological
measure, in order to enable the identification and analysis under paragraph (1),
or for the purpose of enabling interoperability of an independently created computer
program with other programs, if such means are necessary to achieve such interoperability,
to the extent that doing so does not constitute infringement under this title.
(3)
The information acquired through the acts permitted under paragraph (1), and the
means permitted under paragraph (2), may be made available to others if the person
referred to in paragraph (1) or (2), as the case may be, provides such information
or means solely for the purpose of enabling 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 section.
(4) For purposes of this subsection,
the term “interoperability” means the ability of computer programs to
exchange information, and of such programs mutually to use the information which
has been exchanged.
(g) Encryption Research. —
(1) Definitions. — For purposes
of this subsection —
(A) the
term “encryption research” means activities necessary to identify and
analyze flaws and vulnerabilities of encryption technologies applied to copyrighted
works, if these activities are conducted to advance the state of knowledge in
the field of encryption technology or to assist in the development of encryption
products; and
(B) the term “encryption technology”
means the scrambling and descrambling of information using mathematical formulas
or algorithms.
(2) Permissible acts of encryption
research. — Notwithstanding the provisions of subsection (a)(1)(A), it
is not a violation of that subsection for a person to circumvent a technological
measure as applied to a copy, phonorecord, performance, or display of a published
work in the course of an act of good faith encryption research if —
(A) the person lawfully obtained
the encrypted copy, phonorecord, performance, or display of the published work;
(B)
such act is necessary to conduct such encryption research;
(C)
the person made a good faith effort to obtain authorization before the circumvention;
and
(D) such act does not constitute infringement under
this title or a violation of applicable law other than this section, including
section 1030 of title 18 and those provisions of title 18 amended by the Computer
Fraud and Abuse Act of 1986.
(3) Factors in determining exemption. — In
determining whether a person qualifies for the exemption under paragraph (2),
the factors to be considered shall include —
(A)
whether the information derived from the encryption research was disseminated,
and if so, whether it was disseminated in a manner reasonably calculated to advance
the state of knowledge or development of encryption technology, versus whether
it was disseminated in a manner that facilitates infringement under this title
or a violation of applicable law other than this section, including a violation
of privacy or breach of security;
(B) whether the person
is engaged in a legitimate course of study, is employed, or is appropriately trained
or experienced, in the field of encryption technology; and
(C)
whether the person provides the copyright owner of the work to which the technological
measure is applied with notice of the findings and documentation of the research,
and the time when such notice is provided.
(4) Use of technological means
for research activities. — Notwithstanding the provisions of subsection
(a)(2), it is not a violation of that subsection for a person to —
(A)
develop and employ technological means to circumvent a technological measure for
the sole purpose of that person performing the acts of good faith encryption research
described in paragraph (2); and
(B) provide the technological
means to another person with whom he or she is working collaboratively for the
purpose of conducting the acts of good faith encryption research described in
paragraph (2) or for the purpose of having that other person verify his or her
acts of good faith encryption research described in paragraph (2).
(5) Report to Congress. — Not
later than 1 year after the date of the enactment of this chapter, the Register
of Copyrights and the Assistant Secretary for Communications and Information
of the Department of Commerce shall jointly report to the Congress on the
effect this subsection has had on —
(A) encryption
research and the development of encryption technology;
(B)
the adequacy and effectiveness of technological measures designed to protect copyrighted
works; and
(C) protection of copyright owners against
the unauthorized access to their encrypted copyrighted works.
The
report shall include legislative recommendations, if any.
(h) Exceptions Regarding Minors. — 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 —
(1)
does not itself violate the provisions of this title; and
(2)
has the sole purpose to prevent the access of minors to material on the Internet.
(i) Protection of Personally
Identifying Information. —
(1) Circumvention permitted. — Notwithstanding
the provisions of subsection (a)(1)(A), it is not a violation of that subsection
for a person to circumvent a technological measure that effectively controls
access to a work protected under this title, if —
(A) the technological measure, or the work it protects,
contains the capability of collecting or disseminating personally identifying
information reflecting the online activities of a natural person who seeks to
gain access to the work protected;
(B) in the normal
course of its operation, the technological measure, or the work it protects, collects
or disseminates personally identifying information about the person who seeks
to gain access to the work protected, without providing conspicuous notice of
such collection or dissemination to such person, and without providing such person
with the capability to prevent or restrict such collection or dissemination;
(C)
the act of circumvention has the sole effect of identifying and disabling the
capability described in subparagraph (A), and has no other effect on the ability
of any person to gain access to any work; and
(D) the
act of circumvention is carried out solely for the purpose of preventing the collection
or dissemination of personally identifying information about a natural person
who seeks to gain access to the work protected, and is not in violation of any
other law.
(2) Inapplicability to certain
technological measures. —
This subsection does not apply to a technological
measure, or a work it protects, that does not collect or disseminate personally
identifying information and that is disclosed to a user as not having or using
such capability.
(j) Security Testing. —
(1) Definition. — For purposes
of this subsection, the term “security testing” means accessing
a computer, computer system, or computer network, solely for the purpose of
good faith testing, investigating, or correcting, a security flaw or vulnerability,
with the authorization of the owner or operator of such computer, computer
system, or computer network.
(2) Permissible acts of security
testing. — Notwithstanding the provisions of subsection (a)(1)(A), it
is not a violation of that subsection for a person to engage in an act of
security testing, if such act does not constitute infringement under this
title or a violation of applicable law other than this section, including
section 1030 of title 18 and those provisions of title 18 amended by the Computer
Fraud and Abuse Act of 1986.
(3) Factors in determining exemption. — In
determining whether a person qualifies for the exemption under paragraph (2),
the factors to be considered shall include —
(A) whether the information
derived from the security testing was used solely to promote the security of the
owner or operator of such computer, computer system or computer network, or shared
directly with the developer of such computer, computer system, or computer network;
and
(B) whether the information derived from the security
testing was used or maintained in a manner that does not facilitate infringement
under this title or a violation of applicable law other than this section, including
a violation of privacy or breach of security.
(4) Use of technological means
for security testing. — Notwithstanding the provisions of subsection
(a)(2), it is not a violation of that subsection for a person to develop,
produce, distribute or employ technological means for the sole purpose of
performing the acts of security testing described in subsection (2), provided
such technological means does not otherwise violate section (a)(2).
(k) Certain Analog Devices and
Certain Technological Measures. —
(1) Certain analog devices. —
(A) Effective 18 months after
the date of the enactment of this chapter, no person shall manufacture, import,
offer to the public, provide or otherwise traffic in any —
(i)
VHS format analog video cassette recorder unless such recorder conforms to the
automatic gain control copy control technology;
(ii)
8mm format analog video cassette camcorder unless such camcorder conforms to the
automatic gain control technology;
(iii) Beta format
analog video cassette recorder, unless such recorder conforms to the automatic
gain control copy control technology, except that this requirement shall not apply
until there are 1,000 Beta format analog video cassette recorders sold in the
United States in any one calendar year after the date of the enactment of this
chapter;
(iv) 8mm format analog video cassette recorder
that is not an analog video cassette camcorder, unless such recorder conforms
to the automatic gain control copy control technology, except that this requirement
shall not apply until there are 20,000 such recorders sold in the United States
in any one calendar year after the date of the enactment of this chapter; or
(v)
analog video cassette recorder that records using an NTSC format video input and
that is not otherwise covered under clauses (i) through (iv), unless such device
conforms to the automatic gain control copy control technology.
(B)
Effective on the date of the enactment of this chapter, no person shall manufacture,
import, offer to the public, provide or otherwise traffic in —
(i)
any VHS format analog video cassette recorder or any 8mm format analog video cassette
recorder if the design of the model of such recorder has been modified after such
date of enactment so that a model of recorder that previously conformed to the
automatic gain control copy control technology no longer conforms to such technology;
or
(ii) any VHS format analog video cassette recorder,
or any 8mm format analog video cassette recorder that is not an 8mm analog video
cassette camcorder, if the design of the model of such recorder has been modified
after such date of enactment so that a model of recorder that previously conformed
to the four-line colorstripe copy control technology no longer conforms to such
technology.
Manufacturers that have not previously manufactured
or sold a VHS format analog video cassette recorder, or an 8mm format analog cassette
recorder, shall be required to conform to the four-line colorstripe copy control
technology in the initial model of any such recorder manufactured after the date
of the enactment of this chapter, and thereafter to continue conforming to the
four-line colorstripe copy control technology. For purposes of this subparagraph,
an analog video cassette recorder “conforms to” the four-line colorstripe
copy control technology if it records a signal that, when played back by the playback
function of that recorder in the normal viewing mode, exhibits, on a reference
display device, a display containing distracting visible lines through portions
of the viewable picture.
(2) Certain encoding restrictions. — No
person shall apply the automatic gain control copy control technology or colorstripe
copy control technology to prevent or limit consumer copying except such copying —
(A) of a single transmission, or specified group of transmissions,
of live events or of audiovisual works for which a member of the public has
exercised choice in selecting the transmissions, including the content of
the transmissions or the time of receipt of such transmissions, or both, and
as to which such member is charged a separate fee for each such transmission
or specified group of transmissions;
(B) from a copy of a transmission of a live event or an
audiovisual work if such transmission is provided by a channel or service
where payment is made by a member of the public for such channel or service
in the form of a subscription fee that entitles the member of the public to
receive all of the programming contained in such channel or service;
(C) from a physical medium containing one
or more prerecorded audiovisual works; or
(D) from a
copy of a transmission described in subparagraph (A) or from a copy made from
a physical medium described in subparagraph (C).
In the
event that a transmission meets both the conditions set forth in subparagraph
(A) and those set forth in subparagraph (B), the transmission shall be treated
as a transmission described in subparagraph (A).
(3) Inapplicability. — This
subsection shall not —
(A) require
any analog video cassette camcorder to conform to the automatic gain control copy
control technology with respect to any video signal received through a camera
lens;
(B) apply to the manufacture, importation, offer
for sale, provision of, or other trafficking in, any professional analog video
cassette recorder; or
(C) apply to the offer for sale
or provision of, or other trafficking in, any previously owned analog video cassette
recorder, if such recorder was legally manufactured and sold when new and not
subsequently modified in violation of paragraph (1)(B).
(4) Definitions. — For purposes
of this subsection:
(A) An “analog video cassette recorder” means a device that records, or a device
that includes a function that records, on electromagnetic tape in an analog format
the electronic impulses produced by the video and audio portions of a television
program, motion picture, or other form of audiovisual work.
(B)
An “analog video cassette camcorder” means an analog video cassette
recorder that contains a recording function that operates through a camera lens
and through a video input that may be connected with a television or other video
playback device.
(C) An analog video cassette recorder “conforms” to the automatic gain control copy control technology if
it —
(i) detects one or more of the elements of such
technology and does not record the motion picture or transmission protected by
such technology; or
(ii) records a signal that, when
played back, exhibits a meaningfully distorted or degraded display.
(D)
The term “professional analog video cassette recorder” means an analog
video cassette recorder that is designed, manufactured, marketed, and intended
for use by a person who regularly employs such a device for a lawful business
or industrial use, including making, performing , displaying, distributing, or
transmitting copies of motion pictures on a commercial scale.
(E)
The terms “VHS format,” “8mm format,” “Beta format,” “automatic gain control copy control technology,” “colorstripe
copy control technology,” “four-line version of the colorstripe copy
control technology,” and “NTSC” have the meanings that are commonly
understood in the consumer electronics and motion picture industries as of the
date of the enactment of this chapter.
(5) Violations. — Any violation
of paragraph (1) of this subsection shall be treated as a violation of subsection
(b)(1) of this section. Any violation of paragraph (2) of this subsection
shall be deemed an “act of circumvention” for the purposes of section
1203(c)(3)(A) of this chapter.
(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 section, the term “copyright management information” means
any of the following information conveyed in connection with copies or phonorecords
of a work or performances or displays of a work, including in digital form,
except that such term does not include any personally identifying information
about a user of a work or of a copy, phonorecord, performance, or display
of a work:
(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.
(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, Intelligence,
and Other Government Activities. — This section does not prohibit any
lawfully authorized investigative, protective, information security, 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 the United States, a State, or a political subdivision of a State. For
purposes of this subsection, the term “information security” means
activities carried out in order to identify and address the vulnerabilities
of a government computer, computer system, or computer network.
(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 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 of a right under this title.
(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 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 paragraph (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
of a right under this title.
(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 of works, a person identified
in paragraph (1) shall not be liable for a violation of subsection (b) with respect
to such copyright management information, if the activity that constitutes such
violation is not intended to induce, enable, facilitate, or conceal infringement
of a right under this title, and 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 chapter;
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 broadcast stations or cable systems and copyright owners of a
category of works that are intended for public performance by such stations or
systems.
(3) Definitions. — As used
in this subsection —
(A)
the term “broadcast station” has the meaning given that term in section
3 of the Communications Act of 1934 (47 U.S.C. 153); and
(B)
the term “cable system” has the meaning given that term in section 602
of the Communications Act of 1934 (47 U.S.C. 522).
(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, but in no event shall impose a prior restraint
on free speech or the press protected under the 1st amendment to the Constitution;
(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 title, 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,
educational institutions, or public broadcasting entities. —
(i) Definition. — In this
subparagraph, the term “public broadcasting entity” has the meaning
given such term under section 118(g).
(ii) In general. — In the
case of a nonprofit library, archives, educational institution, or public
broadcasting entity, the court shall remit damages in any case in which the
library, archives, educational institution, or public broadcasting entity
sustains the burden of proving, and the court finds, that the library, archives,
educational institution, or public broadcasting entity was not aware and had
no reason to believe that its acts constituted a violation.
(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, Educational Institution, or Public Broadcasting Entity. — Subsection
(a) shall not apply to a nonprofit library, archives, educational institution,
or public broadcasting entity (as defined under section
118(g)).
(c) Statute of Limitations. — No
criminal proceeding shall be brought under this section unless such proceeding
is commenced within five years after the cause of action arose.
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.
1The WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 added chapter 12, entitled “Copyright Protection and Management Systems,” to title 17. Pub. L. No. 105-304,
112 Stat. 2860, 2863. The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 is title I of the Digital Millennium Copyright
Act. Pub. L. No. 105-304, 112 Stat. 2860.
2The Satellite Home Viewer Improvement
Act of 1999 amended section 1201(a)(1)(C) by deleting “on the record.” Pub.
L. No. 106-113, 113 Stat. 1501, app. I at 1501A-594.
3In 1999, section 1202 was amended
by inserting “category of works” for “category or works,” in subsection (e)(2)(B).
Pub. L. No. 106-44, 113 Stat. 221, 222.
4The Satellite Home Viewer Improvement
Act of 1999 amended section 1203(c)(5)(B) in its entirety. Pub. L. No. 106-113,
113 Stat. 1501, app. I at 1501A-593.
5The Satellite Home Viewer Improvement
Act of 1999 amended section 1204(b) in its entirety. Pub. L. No. 106-113,
113 Stat. 1501, app. I at 1501A-593
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