(a) Anyone who violates any of the exclusive rights of
the copyright owner as provided by sections 106
through 122 or of the author as provided in
section 106A(a), or who imports copies or
phonorecords into the United States in violation of section
602, is an infringer of the copyright or right of the author, as the case
may be. For purposes of this chapter (other than section
506), any reference to copyright shall be deemed to include the rights
conferred by section 106A(a). As used in this
subsection, the term “anyone” includes any State, any instrumentality
of a State, and any officer or employee of a State or instrumentality of a
State acting in his or her official capacity. Any State, and any such instrumentality,
officer, or employee, shall be subject to the provisions of this title in
the same manner and to the same extent as any nongovernmental entity.
(b)
The legal or beneficial owner of an exclusive right under a copyright is entitled,
subject to the requirements of section 411, to institute an action for any infringement
of that particular right committed while he or she is the owner of it. The court
may require such owner to serve written notice of the action with a copy of the
complaint upon any person shown, by the records of the Copyright Office or otherwise,
to have or claim an interest in the copyright, and shall require that such notice
be served upon any person whose interest is likely to be affected by a decision
in the case. The court may require the joinder, and shall permit the intervention,
of any person having or claiming an interest in the copyright.
(c)
For any secondary transmission by a cable system that embodies a performance or
a display of a work which is actionable as an act of infringement under subsection
(c) of section 111, a television broadcast station holding a copyright or other
license to transmit or perform the same version of that work shall, for purposes
of subsection (b) of this section, be treated as a legal or beneficial owner if
such secondary transmission occurs within the local service area of that television
station.
(d) For any secondary transmission by a cable
system that is actionable as an act of infringement pursuant to section 111(c)(3),
the following shall also have standing to sue: (i) the primary transmitter whose
transmission has been altered by the cable system; and (ii) any broadcast station
within whose local service area the secondary transmission occurs.
(e)
With respect to any secondary transmission that is made by a satellite carrier
of a performance or display of a work embodied in a primary transmission and is
actionable as an act of infringement under section 119(a)(5), a network station
holding a copyright or other license to transmit or perform the same version of
that work shall, for purposes of subsection (b) of this section, be treated as
a legal or beneficial owner if such secondary transmission occurs within the local
service area of that station.
(f)(1) With respect to
any secondary transmission that is made by a satellite carrier of a performance
or display of a work embodied in a primary transmission and is actionable as an
act of infringement under section 122, a television broadcast station holding
a copyright or other license to transmit or perform the same version of that work
shall, for purposes of subsection (b) of this section, be treated as a legal or
beneficial owner if such secondary transmission occurs within the local market
of that station.
(2) A television broadcast station
may file a civil action against any satellite carrier that has refused to carry
television broadcast signals, as required under section 122(a)(2), to enforce
that television broadcast station's rights under section 338(a) of the Communications
Act of 1934.
(a) Any court having
jurisdiction of a civil action arising under this title may, subject to the provisions
of section 1498 of title 28, grant temporary and final injunctions on such terms
as it may deem reasonable to prevent or restrain infringement of a copyright.
(b)
Any such injunction may be served anywhere in the United States on the person
enjoined; it shall be operative throughout the United States and shall be enforceable,
by proceedings in contempt or otherwise, by any United States court having jurisdiction
of that person. The clerk of the court granting the injunction shall, when requested
by any other court in which enforcement of the injunction is sought, transmit
promptly to the other court a certified copy of all the papers in the case on
file in such clerk's office.
(a)
At any time while an action under this title is pending, the court may order the
impounding, on such terms as it may deem reasonable, of all copies or phonorecords
claimed to have been made or used in violation of the copyright owner's exclusive
rights, and of all plates, molds, matrices, masters, tapes, film negatives, or
other articles by means of which such copies or phonorecords may be reproduced.
(b)
As part of a final judgment or decree, the court may order the destruction or
other reasonable disposition of all copies or phonorecords found to have been
made or used in violation of the copyright owner's exclusive rights, and of all
plates, molds, matrices, masters, tapes, film negatives, or other articles by
means of which such copies or phonorecords may be reproduced.
(a)
In General. — Except as otherwise provided by this title, an infringer of copyright
is liable for either —
(1) the copyright owner's actual
damages and any additional profits of the infringer, as provided by subsection
(b); or
(2) statutory damages, as provided by subsection
(c).
(b) Actual Damages and Profits. — The copyright owner
is entitled to recover the actual damages suffered by him or her as a result of
the infringement, and any profits of the infringer that are attributable to the
infringement and are not taken into account in computing the actual damages. In
establishing the infringer's profits, the copyright owner is required to present
proof only of the infringer's gross revenue, and the infringer is required to
prove his or her deductible expenses and the elements of profit attributable to
factors other than the copyrighted work.
(c) Statutory
Damages. —
(1) Except as provided by clause (2) of this
subsection, the copyright owner may elect, at any time before final judgment is
rendered, to recover, instead of actual damages and profits, an award of statutory
damages for all infringements involved in the action, with respect to any one
work, for which any one infringer is liable individually, or for which any two
or more infringers are liable jointly and severally, in a sum of not less than
$750 or more than $30,000 as the court considers just. For the purposes of this
subsection, all the parts of a compilation or derivative work constitute one work.
(2)
In a case where the copyright owner sustains the burden of proving, and the court
finds, that infringement was committed willfully, the court in its discretion
may increase the award of statutory damages to a sum of not more than $150,000.
In a case where the infringer sustains the burden of proving, and the court finds,
that such infringer was not aware and had no reason to believe that his or her
acts constituted an infringement of copyright, the court in its discretion may
reduce the award of statutory damages to a sum of not less than $200. The court
shall remit statutory damages in any case where an infringer believed and had
reasonable grounds for believing that his or her use of the copyrighted work was
a fair use under section 107, if the infringer was: (i) an employee or agent of
a nonprofit educational institution, library, or archives acting within the scope
of his or her employment who, or such institution, library, or archives itself,
which infringed by reproducing the work in copies or phonorecords; or (ii) a public
broadcasting entity which or a person who, as a regular part of the nonprofit
activities of a public broadcasting entity (as defined in subsection (g) of section
118) infringed by performing a published nondramatic literary work or by reproducing
a transmission program embodying a performance of such a work.
(d)
Additional Damages in Certain Cases. — In any case in which the court finds that
a defendant proprietor of an establishment who claims as a defense that its activities
were exempt under section 110(5) did not have reasonable grounds to believe that
its use of a copyrighted work was exempt under such section, the plaintiff shall
be entitled to, in addition to any award of damages under this section, an additional
award of two times the amount of the license fee that the proprietor of the establishment
concerned should have paid the plaintiff for such use during the preceding period
of up to 3 years.
In any civil
action under this title, the court in its discretion may allow the recovery of
full costs by or against any party other than the United States or an officer
thereof. Except as otherwise provided by this title, the court may also award
a reasonable attorney's fee to the prevailing party as part of the costs.
(a) Criminal Infringement. — Any
person who infringes a copyright willfully either —
(1)
for purposes of commercial advantage or private financial gain, or
(2)
by the reproduction or distribution, including by electronic means, during any
180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works,
which have a total retail value of more than $1,000,
shall
be punished as provided under section 2319 of title 18, United States Code. For
purposes of this subsection, evidence of reproduction or distribution of a copyrighted
work, by itself, shall not be sufficient to establish willful infringement.
(b) Forfeiture and Destruction. — When
any person is convicted of any violation of subsection (a), the court in its
judgment of conviction shall, in addition to the penalty therein prescribed,
order the forfeiture and destruction or other disposition of all infringing
copies or phonorecords and all implements, devices, or equipment used in the
manufacture of such infringing copies or phonorecords.
(c) Fraudulent Copyright Notice. — Any
person who, with fraudulent intent, places on any article a notice of copyright
or words of the same purport that such person knows to be false, or who, with
fraudulent intent, publicly distributes or imports for public distribution
any article bearing such notice or words that such person knows to be false,
shall be fined not more than $2,500.
(d) Fraudulent Removal of Copyright
Notice. — Any person who, with fraudulent intent, removes or alters any
notice of copyright appearing on a copy of a copyrighted work shall be fined
not more than $2,500.
(e) False Representation. — Any
person who knowingly makes a false representation of a material fact in the
application for copyright registration provided for by section
409, or in any written statement filed in connection with the application,
shall be fined not more than $2,500.
(f) Rights of Attribution and
Integrity. — Nothing in this section applies to infringement of the rights
conferred by section 106A(a).
(a) Criminal Proceedings. — Except
as expressly provided otherwise in this title, no criminal proceeding shall
be maintained under the provisions of this title unless it is commenced within
5 years after the cause of action arose.
(b) Civil Actions. — No
civil action shall be maintained under the provisions of this title unless
it is commenced within three years after the claim accrued.
(a)
Within one month after the filing of any action under this title, the clerks of
the courts of the United States shall send written notification to the Register
of Copyrights setting forth, as far as is shown by the papers filed in the court,
the names and addresses of the parties and the title, author, and registration
number of each work involved in the action. If any other copyrighted work is later
included in the action by amendment, answer, or other pleading, the clerk shall
also send a notification concerning it to the Register within one month after
the pleading is filed.
(b) Within one month after any
final order or judgment is issued in the case, the clerk of the court shall notify
the Register of it, sending with the notification a copy of the order or judgment
together with the written opinion, if any, of the court.
(c)
Upon receiving the notifications specified in this section, the Register shall
make them a part of the public records of the Copyright Office.
(a) All copies or phonorecords
manufactured, reproduced, distributed, sold, or otherwise used, intended for use,
or possessed with intent to use in violation of section 506 (a), and all plates,
molds, matrices, masters, tapes, film negatives, or other articles by means of
which such copies or phonorecords may be reproduced, and all electronic, mechanical,
or other devices for manufacturing, reproducing, or assembling such copies or
phonorecords may be seized and forfeited to the United States.
(b)
The applicable procedures relating to
(i) the seizure,
summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise,
and baggage for violations of the customs laws contained in title 19,
(ii)
the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds
from the sale thereof,
(iii) the remission or mitigation
of such forfeiture,
(iv) the compromise of claims, and
(v)
the award of compensation to informers in respect of such forfeitures, shall apply
to seizures and forfeitures incurred, or alleged to have been incurred, under
the provisions of this section, insofar as applicable and not inconsistent with
the provisions of this section; except that such duties as are imposed upon any
officer or employee of the Treasury Department or any other person with respect
to the seizure and forfeiture of vessels, vehicles, merchandise, and baggage under
the provisions of the customs laws contained in title 19 shall be performed with
respect to seizure and forfeiture of all articles described in subsection (a)
by such officers, agents, or other persons as may be authorized or designated
for that purpose by the Attorney General.
(a)
In any action filed pursuant to section 111(c)(3), the following remedies shall
be available:
(1) Where an action is brought by a party
identified in subsections (b) or (c) of section 501, the remedies provided by
sections 502 through 505, and the remedy provided by subsection (b) of this section;
and
(2) When an action is brought by a party identified
in subsection (d) of section 501, the remedies provided by sections 502 and 505,
together with any actual damages suffered by such party as a result of the infringement,
and the remedy provided by subsection (b) of this section.
(b)
In any action filed pursuant to section 111(c)(3), the court may decree that,
for a period not to exceed thirty days, the cable system shall be deprived of
the benefit of a statutory license for one or more distant signals carried by
such cable system.
(a) In General. — Any State,
any instrumentality of a State, and any officer or employee of a State or
instrumentality of a State acting in his or her official capacity, shall not
be immune, under the Eleventh Amendment of the Constitution of the United
States or under any other doctrine of sovereign immunity, from suit in Federal
Court by any person, including any governmental or nongovernmental entity,
for a violation of any of the exclusive rights of a copyright owner provided
by sections 106 through 122,
for importing copies of phonorecords in violation of section
602, or for any other violation under this title.
(b) Remedies. — In a suit
described in subsection (a) for a violation described in that subsection,
remedies (including remedies both at law and in equity) are available for
the violation to the same extent as such remedies are available for such a
violation in a suit against any public or private entity other than a State,
instrumentality of a State, or officer or employee of a State acting in his
or her official capacity. Such remedies include impounding and disposition
of infringing articles under section 503, actual
damages and profits and statutory damages under section
504, costs and attorney's fees under section 505, and the remedies provided
in section 510.
(a) Transitory Digital Network
Communications. — A service provider shall not be liable for monetary
relief, or, except as provided in subsection (j), for injunctive or other
equitable relief, for infringement of copyright by reason of 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 by reason
of the intermediate and transient storage of that material in the course of
such transmitting, routing, or providing connections, if —
(1)
the transmission of the material was initiated by or at the direction of a person
other than the service provider;
(2) the transmission,
routing, provision of connections, or storage is carried out through an automatic
technical process without selection of the material by the service provider;
(3)
the service provider does not select the recipients of the material except as
an automatic response to the request of another person;
(4)
no copy of the material made by the service provider in the course of such intermediate
or transient storage 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 such anticipated
recipients for a longer period than is reasonably necessary for the transmission,
routing, or provision of connections; and
(5) the material
is transmitted through the system or network without modification of its content.
(b) System Caching. —
(1) Limitation on liability. — A
service provider shall not be liable for monetary relief, or, except as provided
in subsection (j), for injunctive or other equitable relief, for infringement
of copyright by reason of the intermediate and temporary storage of material
on a system or network controlled or operated by or for the service provider
in a case in which —
(A)
the material is made available online by a person other than the service provider;
(B)
the material is transmitted from the person described in subparagraph (A) through
the system or network to a person other than the person described in subparagraph
(A) at the direction of that other person; and
(C) the
storage is carried out through an automatic technical process for the purpose
of making the material available to users of the system or network who, after
the material is transmitted as described in subparagraph (B), request access to
the material from the person described in subparagraph (A), if the conditions
set forth in paragraph (2) are met.
(2) Conditions. — The conditions
referred to in paragraph (1) are that —
(A)
the material described in paragraph (1) is transmitted to the subsequent users
described in paragraph (1)(C) without modification to its content from the manner
in which the material was transmitted from the person described in paragraph (1)(A);
(B)
the service provider described in paragraph (1) complies with rules concerning
the refreshing, reloading, or other updating of the material when specified by
the person making the material available online in accordance with a generally
accepted industry standard data communications protocol for the system or network
through which that person makes the material available, except that this subparagraph
applies only if those rules are not used by the person described in paragraph
(1)(A) to prevent or unreasonably impair the intermediate storage to which this
subsection applies;
(C) the service provider does not
interfere with the ability of technology associated with the material to return
to the person described in paragraph (1)(A) the information that would have been
available to that person if the material had been obtained by the subsequent users
described in paragraph (1)(C) directly from that person, except that this subparagraph
applies only if that technology —
(i) does not significantly
interfere with the performance of the provider's system or network or with the
intermediate storage of the material;
(ii) is consistent
with generally accepted industry standard communications protocols; and
(iii)
does not extract information from the provider's system or network other than
the information that would have been available to the person described in paragraph
(1)(A) if the subsequent users had gained access to the material directly from
that person;
(D) if the person described in paragraph
(1)(A) has in effect a condition that a person must meet prior to having access
to the material, such as a 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
met those conditions and only in accordance with those conditions; and
(E)
if the person described in paragraph (1)(A) makes that material available online
without the authorization of the copyright owner of the material, the service
provider responds expeditiously to remove, or disable access to, the material
that is claimed to be infringing upon notification of claimed infringement as
described in subsection (c)(3), except that this subparagraph applies only if —
(i)
the material has previously been removed from the originating site or access to
it has been disabled, or a court has ordered that the material be removed from
the originating site or that access to the material on the originating site be
disabled; and
(ii) the party giving the notification
includes in the notification a statement confirming that the material has been
removed from the originating site or access to it has been disabled or that a
court has ordered that the material be removed from the originating site or that
access to the material on the originating site be disabled.
(c) Information Residing on Systems
or Networks at Direction of Users. —
(1) In general. — A service
provider shall not be liable for monetary relief, or, except as provided in
subsection (j), for injunctive or other equitable relief, for infringement
of copyright by reason of 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 an activity using the material on the system or
network 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) upon obtaining such knowledge
or awareness, acts expeditiously to remove, or disable access to, the material;
(B)
does not receive a financial benefit directly attributable to the infringing activity,
in a case in which the service provider has the right and ability to control such
activity; and
(C) upon 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 to a service
provider only if the service provider has designated an agent to receive notifications
of claimed infringement described in paragraph (3), by making available through
its service, including on its website in a location accessible to the public,
and by providing to the Copyright Office, substantially the following information:
(A)
the name, address, phone number, and electronic mail address of the agent.
(B)
other contact information which the Register of Copyrights may deem appropriate.
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, and may require payment of a fee by service providers to
cover the costs of maintaining the directory.
(3) Elements of notification. —
(A) To be effective under this subsection,
a notification of claimed infringement must be a written communication provided
to the designated agent of a service provider 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 copyrighted 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 and
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,
its agent, or the law.
(vi) A statement that the information
in the notification is accurate, and under penalty of perjury, that the complaining
party is authorized to act on behalf of the owner of an exclusive right that is
allegedly infringed.
(B)(i) Subject to clause (ii), a
notification from a copyright owner or from a person authorized to act on behalf
of the copyright owner that fails to comply substantially with the provisions
of subparagraph (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.
(ii) In
a case in which the notification that is provided to the service provider's designated
agent fails to comply substantially with all the provisions of subparagraph (A)
but substantially complies with clauses (ii), (iii), and (iv) of subparagraph
(A), clause (i) of this subparagraph applies only if the service provider promptly
attempts to contact the person making the notification or takes other reasonable
steps to assist in the receipt of notification that substantially complies with
all the provisions of subparagraph (A).
(d) Information Location Tools. — A
service provider shall not be liable for monetary relief, or, except as provided
in subsection (j), for injunctive or other equitable relief, for infringement
of copyright by reason of the provider referring or linking users to an online
location containing infringing material or infringing activity, by using information
location tools, including a directory, index, reference, pointer, or hypertext
link, if the service provider —
(1)(A) does
not have actual knowledge that the material or activity is infringing;
(B)
in the absence of such actual knowledge, is not aware of facts or circumstances
from which infringing activity is apparent; or
(C) upon
obtaining such knowledge or awareness, acts expeditiously to remove, or disable
access to, the material;
(2) does not receive a financial
benefit directly attributable to the infringing activity, in a case in which the
service provider has the right and ability to control such activity; and
(3)
upon notification of claimed infringement as described in subsection (c)(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, except that, for purposes
of this paragraph, the information described 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 that
reference or link.
(e) Limitation on Liability of
Nonprofit Educational Institutions. — (1) When a public or other nonprofit
institution of higher education is a service provider, and when a faculty
member or graduate student who is an employee of such institution is performing
a teaching or research function, for the purposes of subsections (a) and (b)
such faculty member or graduate student shall be considered to be a person
other than the institution, and for the purposes of subsections (c) and (d)
such faculty member's or graduate student's knowledge or awareness of his
or her infringing activities shall not be attributed to the institution, if —
(A) such faculty member's or
graduate student's infringing activities do not involve the provision of online
access to instructional materials that are or were required or recommended, within
the preceding 3-year period, for a course taught at the institution by such faculty
member or graduate student;
(B) the institution has not,
within the preceding 3-year period, received more than 2 notifications described
in subsection (c)(3) of claimed infringement by such faculty member or graduate
student, and such notifications of claimed infringement were not actionable under
subsection (f); and
(C) the institution provides to all
users of its system or network informational materials that accurately describe,
and promote compliance with, the laws of the United States relating to copyright.
(2)
For the purposes of this subsection, the limitations on injunctive relief contained
in subsections (j)(2) and (j)(3), but not those in (j)(1), shall apply.
(f) 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 a 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.
(g) Replacement of Removed or
Disabled Material and Limitation on Other Liability. —
(1) No liability for taking down
generally. — Subject to paragraph (2), 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) Exception. — Paragraph
(1) 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 notification described in
paragraph (3), promptly provides the person who provided the notification
under subsection (c)(1)(C) with a copy of the counter notification, and informs
that person that it will replace the removed material or cease disabling access
to it in 10 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) Contents of counter notification. — To
be effective under this subsection, a counter notification must be a 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 the material appeared before it was removed
or access to it 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 District 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 notification under subsection
(c)(1)(C) or an agent of such person.
(4) Limitation on other liability. — 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).
(h) Subpoena to Identify Infringer. —
(1) Request. — A copyright
owner or a person authorized to act on the owner's behalf may request the
clerk of any United States district court to issue a subpoena to a service
provider for identification of an alleged infringer in accordance with this
subsection.
(2) Contents of request — The
request may be made by filing with the clerk —
(A)
a copy of a notification described in subsection (c)(3)(A);
(B)
a proposed subpoena; and
(C) a sworn declaration to the
effect that the purpose for which the subpoena is sought is to obtain the identity
of an alleged infringer and that such information will only be used for the purpose
of protecting rights under this title.
(3) Contents of subpoena. — The
subpoena shall authorize and order the service provider receiving the notification
and the subpoena to expeditiously disclose to the copyright owner or person
authorized by the copyright owner information sufficient to identify the alleged
infringer of the material described in the notification to the extent such
information is available to the service provider.
(4) Basis for granting subpoena. — If
the notification filed satisfies the provisions of subsection (c)(3)(A), the
proposed subpoena is in proper form, and the accompanying declaration is properly
executed, the clerk shall expeditiously issue and sign the proposed subpoena
and return it to the requester for delivery to the service provider.
(5) Actions of service provider
receiving subpoena. — Upon receipt of the issued subpoena, either accompanying
or subsequent to the receipt of a notification described in subsection (c)(3)(A),
the service provider shall expeditiously disclose to the copyright owner or
person authorized by the copyright owner the information required by the subpoena,
notwithstanding any other provision of law and regardless of whether the service
provider responds to the notification.
(6) Rules applicable to subpoena.
— Unless otherwise provided by this section or by applicable rules of the
court, the procedure for issuance and delivery of the subpoena, and the remedies
for noncompliance with the subpoena, shall be governed to the greatest extent
practicable by those provisions of the Federal Rules of Civil Procedure governing
the issuance, service, and enforcement of a subpoena duces tecum.
(i) Conditions for Eligibility. —
(1) Accommodation of technology. — The
limitations on liability established by this section shall apply to a service
provider only if the service provider —
(A) has adopted
and reasonably implemented, and informs subscribers and account holders of the
service provider's system or network of, a policy that provides for the termination
in appropriate circumstances of subscribers and account holders of the service
provider's system or network who are repeat infringers; and
(B)
accommodates and does not interfere with standard technical measures.
(2) Definition. — As used
in this subsection, the term “standard technical measures” means
technical measures that are used by copyright owners to identify or protect
copyrighted works and —
(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.
(j) 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
under this section:
(1) Scope of relief. — (A)
With respect to conduct other than that which qualifies for the limitation
on remedies set forth in subsection (a), the court may grant injunctive relief
with respect to a service provider only in one or more of the following forms:
(i)
An order restraining the service provider 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 the service provider
from providing access to a subscriber or account holder of the service provider's
system or network who is engaging in infringing activity and is identified in
the order, by terminating the accounts of the subscriber or account holder that
are specified in the order.
(iii) Such other injunctive
relief as the court may consider necessary to prevent or restrain infringement
of copyrighted material specified in the order of the court at a particular online
location, if such relief is the least burdensome to the service provider among
the forms of relief 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 the service
provider from providing access to a subscriber or account holder of the service
provider's system or network who is using the provider's service to engage in
infringing activity and is identified in the order, by terminating the accounts
of the subscriber or account holder that are specified in the order.
(ii)
An order restraining the service provider from providing access, by taking reasonable
steps specified in the order to block access, to a specific, identified, online
location outside the United States.
(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 be available only after notice to the service
provider and an opportunity for the service provider to appear are provided,
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.
(k) Definitions. —
(1) Service provider. — (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 this section,
other than subsection (a), 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 subparagraph (A).
(2) Monetary relief. — As
used in this section, the term “monetary relief” means damages,
costs, attorneys' fees, and any other form of monetary payment.
(l) 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.
(m) 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 (i); or
(2)
a service provider gaining access to, removing, or disabling access to material
in cases in which such conduct is prohibited by law.
(n) Construction. — Subsections
(a), (b), (c), and (d) describe separate and distinct functions for purposes
of applying this section. Whether a service provider qualifies for the limitation
on liability in any one of those subsections shall be based solely on the
criteria in that subsection, and shall not affect a determination of whether
that service provider qualifies for the limitations on liability under any
other such subsection.
In
the case of any performing rights society subject to a consent decree which provides
for the determination of reasonable license rates or fees to be charged by the
performing rights society, notwithstanding the provisions of that consent decree,
an individual proprietor who owns or operates fewer than 7 non-publicly traded
establishments in which nondramatic musical works are performed publicly and who
claims that any license agreement offered by that performing rights society is
unreasonable in its license rate or fee as to that individual proprietor, shall
be entitled to determination of a reasonable license rate or fee as follows:
(1)
The individual proprietor may commence such proceeding for determination of a
reasonable license rate or fee by filing an application in the applicable district
court under paragraph (2) that a rate disagreement exists and by serving a copy
of the application on the performing rights society. Such proceeding shall commence
in the applicable district court within 90 days after the service of such copy,
except that such 90-day requirement shall be subject to the administrative requirements
of the court.
(2) The proceeding under paragraph (1)
shall be held, at the individual proprietor's election, in the judicial district
of the district court with jurisdiction over the applicable consent decree or
in that place of holding court of a district court that is the seat of the Federal
circuit (other than the Court of Appeals for the Federal Circuit) in which the
proprietor's establishment is located.
(3) Such proceeding
shall be held before the judge of the court with jurisdiction over the consent
decree governing the performing rights society. At the discretion of the court,
the proceeding shall be held before a special master or magistrate judge appointed
by such judge. Should that consent decree provide for the appointment of an advisor
or advisors to the court for any purpose, any such advisor shall be the special
master so named by the court.
(4) In any such proceeding,
the industry rate shall be presumed to have been reasonable at the time it was
agreed to or determined by the court. Such presumption shall in no way affect
a determination of whether the rate is being correctly applied to the individual
proprietor.
(5) Pending the completion of such proceeding,
the individual proprietor shall have the right to perform publicly the copyrighted
musical compositions in the repertoire of the performing rights society by paying
an interim license rate or fee into an interest bearing escrow account with the
clerk of the court, subject to retroactive adjustment when a final rate or fee
has been determined, in an amount equal to the industry rate, or, in the absence
of an industry rate, the amount of the most recent license rate or fee agreed
to by the parties.
(6) Any decision rendered in such
proceeding by a special master or magistrate judge named under paragraph (3) shall
be reviewed by the judge of the court with jurisdiction over the consent decree
governing the performing rights society. Such proceeding, including such review,
shall be concluded within 6 months after its commencement.
(7)
Any such final determination shall be binding only as to the individual proprietor
commencing the proceeding, and shall not be applicable to any other proprietor
or any other performing rights society, and the performing rights society shall
be relieved of any obligation of nondiscrimination among similarly situated music
users that may be imposed by the consent decree governing its operations.
(8)
An individual proprietor may not bring more than one proceeding provided for in
this section for the determination of a reasonable license rate or fee under any
license agreement with respect to any one performing rights society.
(9)
For purposes of this section, the term “industry rate” means the license
fee a performing rights society has agreed to with, or which has been determined
by the court for, a significant segment of the music user industry to which the
individual proprietor belongs.
1Concerning the liability of the
United States Government for copyright infringement, see 28 U.S.C. 1498. Title
28 of the United States Code is entitled “Judiciary and Judicial Procedure.”
2In 1998, two sections
512 were enacted into law. On October 17, 1998, the Fairness in Music
Licensing Act of 1998 was enacted. This Act amended chapter 5 to add section
512 entitled “Determination of reasonable license fees for individual proprietors.”
Pub. L. No. 105-298, 112 Stat. 2827, 2831. On October 28, 1998, the Online
Copyright Infringement Liability Limitation Act was enacted. This Act amended
chapter 5 to add section 512 entitled “Limitations on liability relating to
material online.” Pub. L. No. 105-304, 112 Stat. 2860, 2877. In 1999, a technical
correction was enacted to redesignate the section 512 that was entitled “Determination
of reasonable license fees for individual proprietors” as section
513. Also, the table of sections was amended to reflect that change. Pub.
L. No. 106-44, 113 Stat. 221. See also endnote
10, infra.
3The Berne Convention Implementation
Act of 1988 amended section 501(b) by striking out “sections 205(d) and 411”
and inserting in lieu thereof “section 411.” Pub. L. No. 100-568, 102 Stat.
2853, 2860. The Satellite Home Viewer Act of 1988 amended section 501 by adding
subsection (e). Pub. L. No. 100-667, 102 Stat. 3935, 3957.
In 1990, the Copyright Remedy Clarification Act amended section
501(a) by adding the last two sentences. Pub. L. No. 101-553, 104 Stat. 2749.
The Visual Artists Rights Act of 1990 also amended section 501(a) as follows:
1) by inserting “or of the author as provided in section 106A(a)” after “118”
and 2) by striking out “copyright.” and inserting in lieu thereof “copyright
or right of the author, as the case may be. For purposes of this chapter (other
than section 506), any reference to copyright shall be deemed to include the
rights conferred by section 106A(a).” Pub. L. No. 101-650, 104 Stat. 5089,
5131.
In 1999, a technical correction amended the first sentence
in subsection 501(a) by inserting “121” in lieu of “118.” Pub. L. No. 106-44,
113 Stat. 221, 222. The Satellite Home Viewer Improvement Act of 1999 amended
section 501 by adding a subsection (f) and, in subsection (e), by inserting “performance or display of a work embodied in a primary transmission” in lieu
of “primary transmission embodying the performance or display of a work.”
Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-527 and 544. The Satellite
Home Viewer Improvement Act of 1999 states that section 501(f) shall be effective
as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544.
The Intellectual Property and High Technology Technical Amendments
Act of 2002 amended section 501(a) by substituting sections “106 through
122” for “106 through 121.” Pub. L. No. 107-273, 116 Stat.
1758, 1909.
4The Berne Convention Implementation
Act of 1988 amended section 504(c) as follows: 1) in paragraph (1), by inserting “$500” in lieu of “$250” and by inserting “$20,000” in lieu of “$10,000” and
2) in paragraph (2), by inserting “$100,000” in lieu of “$50,000” and by inserting “$200” in lieu of “$100.” Pub. L. No. 100-568, 102 Stat. 2853, 2860. The Digital
Theft Deterrence and Copyright Damages Improvement Act of 1999 amended section
504(c), in paragraph (1), by substituting “$750” for “$500” and “$30,000”
for “$20,000” and, in paragraph (2), by substituting “$150,000” for “$100,000.”
Pub. L. No. 106-160, 113 Stat. 1774.
5The Piracy and Counterfeiting Amendments
Act of 1982 amended section 506 by substituting a new subsection(a). Pub.
L. No. 97-180, 96 Stat. 91, 93. The Visual Artists Rights Act of 1990 amended
section 506 by adding subsection (f). Pub. L. No.101-650, 104 Stat. 5089,
5131. In 1997, the No Electronic Theft (NET) Act again amended section 506
by amending subsection (a) in its entirety. Pub. L. No. 105-147, 111 Stat.
2678. That Act also directed the United States Sentencing Commission to “ensure
that the applicable guideline range for a defendant convicted of a crime against
intellectual property . . . is sufficiently stringent to deter such a crime”
and to “ensure that the guidelines provide for consideration of the retail
value and quantity of the items with respect to which the crime against intellectual
property was committed.” Pub. L. No. 105-147, 111 Stat. 2678, 2680. See also
endnote 2 in Part VII of the Appendix.
6In 1997, the No Electronic Theft
(NET) Act amended section 507(a) by inserting “5” in lieu of “three.” Pub.
L. No. 105-147, 111 Stat. 2678.
7The Satellite Home Viewer Improvement
Act of 1999 amended the heading for section 510 by substituting “programming”
for “programing” and, in subsection (b), by substituting “statutory” for “compulsory.”
Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-543.
8In 1990, the Copyright Remedy Clarification
Act added section 511. Pub. L. No. 101-553,
104 Stat. 2749. In 1999, a technical correction amended subsection 511(a)
by inserting “121” in lieu of “119.” Pub. L. No. 106-44, 113 Stat. 221, 222.
The Intellectual Property and High Technology Technical Amendments Act of
2002 amended section 511(a) by substituting sections “106 through 122” for
“106 through 121.” Pub. L. No. 107-273, 116 Stat. 1758, 1909.
9In 1998, the Online Copyright Infringement
Liability Limitation Act added section 512. Pub. L. No. 105-304, 112 Stat.
2860, 2877. In 1999, a technical correction deleted the heading for paragraph
(2) of section 512(e), which was “Injunctions.” Pub. L. No. 106-44, 113 Stat.
221, 222.
10The Fairness in Music Licensing
Act of 1998 added section 513. Pub. L. No. 105-298, 112 Stat. 2827, 2831.
This section was originally designated as section 512. However, because two
sections 512 had been enacted into law in 1998, a technical amendment redesignated
this as section 513. Pub. L. No. 106-44, 113 Stat. 221. See also endnote 2,
supra
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