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Overview of the Digital Millennium Copyright Act
On October 28, 1998, President Clinton signed the Digital Millennium Copyright Act
(“DMCA”) into law. The Act is designed to implement the treaties signed in December 1996 at
the World Intellectual Property Organization (WIPO) Geneva conference, but also contains
additional, related provisions.
Key Provisions:
•
Makes it a crime to circumvent anti-piracy measures built into most commercial
software.
•
Outlaws the manufacture, sale, or distribution of code-cracking devices used to
illegally copy software.
•
Does permit the cracking of copyright protection devices, however, to conduct
encryption research, assess product interoperability, and test computer security
systems.
•
Provides exemptions from anti-circumvention provisions for nonprofit libraries,
archives, and educational institutions under certain circumstances.
•
In general, limits Internet service providers from copyright infringement liability
for simply transmitting information over the Internet.
•
Service providers, however, are expected to remove material from users' web sites
that appears to constitute copyright infringement.
•
Limits liability of nonprofit institutions of higher education – when they serve as
online service providers and under certain circumstances – for copyright
infringement by faculty members or graduate students.
•
Requires that "webcasters" pay licensing fees to SR copyright holders.
•
Requires that the Register of Copyrights, after consultation with relevant parties,
submit to Congress recommendations regarding how to promote distance
education through digital technologies while "maintaining an appropriate balance
between the rights of copyright owners and the needs of users."
•
States explicitly that "[n]othing in this section shall affect rights, remedies,
limitations, or defenses to copyright infringement, including fair use..."
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The Digital Millennium Copyright Act – Full Text
SECTION 1. SHORT TITLE.
This Act may be cited as the `Digital Millennium Copyright Act'.
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.
Evaluation of impact of copyright law and amendments on electronic
commerce and technological development.
Sec. 105.
Effective date.
TITLE II – ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
Sec. 201.
Short title.
Sec. 202.
Limitations on liability for copyright infringement.
Sec. 203.
Effective date.
TITLE III – COMPUTER MAINTENANCE OR REPAIR COPYRIGHT EXEMPTION
Sec. 301.
Short title.
Sec. 302.
Limitations on exclusive rights; computer programs.
TITLE IV – MISCELLANEOUS PROVISIONS
Sec. 401.
Provisions Relating to the Commissioner of Patents and Trademarks and
the Register of Copyrights.
Sec. 402.
Ephemeral recordings.
Sec. 403.
Limitations on exclusive rights; distance education.
Sec. 404.
Exemption for libraries and archives.
Sec. 405.
Scope of exclusive rights in sound recordings; ephemeral recordings.
Sec. 406.
Assumption of contractual obligations related to transfers of rights in
motion pictures.
Sec. 407.
Effective date.
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TITLE V – PROTECTION OF CERTAIN ORIGINAL DESIGNS
Sec. 501.
Short title.
Sec. 502.
Protection of certain original designs.
Sec. 503.
Conforming amendments.
Sec. 504.
Joint study of the effect of this title.
Sec. 505.
Effective date.
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)
DEFINITIONS- Section 101 of title 17, United States Code, is amended–
(1)
by striking the definition of `Berne Convention work';
(2)
in the definition of `The `country of origin' of a Berne Convention work'--
(A)
by striking `The `country of origin' of a Berne Convention work,
for purposes of section 411, is the United States if' and inserting
`For purposes of section 411, a work is a `United States work' only
if';
(B)
in paragraph (1)--
(i)
in subparagraph (B) by striking `nation or nations adhering
to the Berne Convention' and inserting `treaty party or
parties';
(ii)
in subparagraph (C) by striking `does not adhere to the
Berne Convention' and inserting `is not a treaty party'; and
(iii)
in subparagraph (D) by striking `does not adhere to the
Berne Convention' and inserting `is not a treaty party'; and
(C)
in the matter following paragraph (3) by striking `For the purposes
of section 411, the `country of origin' of any other Berne
Convention work is not the United States.';
(3)
by inserting after the definition of `fixed' the following:
`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.';
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(4)
by inserting after the definition of `including' the following:
`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.';
(5)
by inserting after the definition of `transmit' the following:
`A `treaty party' is a country or intergovernmental organization
other than the United States that is a party to an international
agreement.';
(6)
by inserting after the definition of `widow' the following:
`The `WIPO Copyright Treaty' is the WIPO Copyright Treaty
concluded at Geneva, Switzerland, on December 20, 1996.';
(7)
by inserting after the definition of `The `WIPO Copyright Treaty' the
following:
`The `WIPO Performances and Phonograms Treaty' is the WIPO
Performances and Phonograms Treaty concluded at Geneva,
Switzerland, on December 20, 1996.'; and
(8)
by inserting after the definition of `work made for hire' the following:
`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)
SUBJECT MATTER OF COPYRIGHT; NATIONAL ORIGIN- Section 104 of
title 17, United States Code, is amended--
(1)
in subsection (b)--
(A)
in paragraph (1) by striking `foreign nation that is a party to a
copyright treaty to which the United States is also a party' and
inserting `treaty party';
(B)
in paragraph (2) by striking `party to the Universal Copyright
Convention' and inserting `treaty party';
(C)
by redesignating paragraph (5) as paragraph (6);
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(D)
by redesignating paragraph (3) as paragraph (5) and inserting it
after paragraph (4);
(E)
by inserting after paragraph (2) the following:
`(3) the work is a sound recording that was first fixed in a
treaty party; or';
(F)
in paragraph (4) by striking `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'; and
(G)
by inserting after paragraph (6), as so redesignated, the following:
`For purposes of paragraph (2), a work that is published in
the United States or a treaty party within 30 days after
publication in a foreign nation that is not a treaty party
shall be considered to be first published in the United
States or such treaty party, as the case may be.'; and
(2)
by adding at the end the following new subsection:
`(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)
COPYRIGHT IN RESTORED WORKS- Section 104A(h) of title 17, United
States Code, is amended--
(1)
in paragraph (1), by striking subparagraphs (A) and (B) and inserting the
following:
`(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)
by amending paragraph (3) 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 the
enactment of the Uruguay Round Agreements Act;
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`(B) on such date of enactment is, or after such 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)--
(A)
in subparagraph (C)(iii) by striking `and' after the semicolon;
(B)
at the end of subparagraph (D) by striking the period and inserting
`; and'; and
(C)
by adding after subparagraph (D) the following:
`(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.';
(4)
in paragraph (8)(B)(i)--
(A)
by inserting `of which' before `the majority'; and
(B)
by striking `of eligible countries'; and
(5)
by striking paragraph (9).
(d)
REGISTRATION AND INFRINGEMENT ACTIONS- Section 411(a) of title 17,
United States Code, is amended in the first sentence--
(1)
by striking `actions for infringement of copyright in Berne Convention
works whose country of origin is not the United States and'; and
(2)
by inserting `United States' after `no action for infringement of the
copyright in any'.
(e)
STATUTE OF LIMITATIONS- Section 507(a) of title 17, United State Code, is
amended by striking `No' and inserting `Except as expressly provided otherwise
in this title, no'.
SEC. 103.
COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT
INFORMATION.
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(a)
IN GENERAL- Title 17, United States Code, is amended by adding at the end the
following new chapter:
`CHAPTER 12--COPYRIGHT PROTECTION AND MANAGEMENT
SYSTEMS
`Sec.
`1201. Circumvention of copyright protection systems.
`1202. Integrity of copyright management information.
`1203. Civil remedies.
`1204. Criminal offenses and penalties.
`1205. Savings clause.
`Sec. 1201. Circumvention of copyright protection systems
`(a) VIOLATIONS REGARDING CIRCUMVENTION OF
TECHNOLOGICAL 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 on the record 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
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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--
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`(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
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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.
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United States Code
Title 17. Copyrights
Chapter 12.
COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS
§ 1201. Circumvention of copyright protection systems.
(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;
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(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
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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-
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(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
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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-
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(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.-
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(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
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(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),[1] provided
such technological means does not otherwise violate section [2] (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
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(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
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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.
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§ 1202. Integrity of copyright management information.
(a)
False Copyright Management Information.- No person shall knowingly and with the
intent to induce, enable, facilitate, or conceal infringement-
(1)
provide copyright management information that is false, or
(2)
distribute or import for distribution copyright management information that is
false.
(b)
Removal or Alteration of Copyright Management Information.- No person shall, without
the authority of the copyright owner or the law-
(1)
intentionally remove or alter any copyright management information,
(2)
distribute or import for distribution copyright management information knowing
that the copyright management information has been removed or altered without
authority of the copyright owner or the law, or
(3)
distribute, import for distribution, or publicly perform works, copies of works, or
phonorecords, knowing that copyright management information has been
removed or altered without authority of the copyright owner or the law, knowing,
or, with respect to civil remedies under section 1203, having reasonable grounds
to know, that it will induce, enable, facilitate, or conceal an infringement of any
right under this title.
(c)
Definition.- As used in this 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,
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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
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(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).
§ 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, 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
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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 3 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
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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.
§ 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, 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 5 years after the cause of action arose.
§ 1205. Savings clause.
Nothing in this chapter abrogates, diminishes, or weakens the provisions of, nor provides
any defense or element of mitigation in a criminal prosecution or civil action under, any Federal
or State law that prevents the violation of the privacy of an individual in connection with the
individual's use of the Internet.