CONTENT AND AUTHORS ATTRIBUTION
USC
PUBLIC LAW 105–304—OCT. 28, 1998
DIGITAL MILLENNIUM COPYRIGHT ACT
112 STAT. 2860 PUBLIC LAW 105–304—OCT. 28, 1998
Public Law 105–304
105th Congress
An Act
To amend title 17, United States Code, to implement the World Intellectual Property
Organization Copyright Treaty and Performances and Phonograms Treaty, and
for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Digital Millennium Copyright
Act’’.
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.
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.
17 USC 101 note.
Digital
Millennium
Copyright Act.
Oct. 28, 1998
[H.R. 2281]
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2861
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.’’;
(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:
WIPO Copyright
and
Performances
and Phonograms
Treaties
Implementation
Act of 1998.
17 USC 101 note.
112 STAT. 2862 PUBLIC LAW 105–304—OCT. 28, 1998
‘‘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);
(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
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2863
‘‘(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;
‘‘(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.
(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.
‘‘§ 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
112 STAT. 2864 PUBLIC LAW 105–304—OCT. 28, 1998
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 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
Publication.
Reports.
Regulations.
Effective date.
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2865
‘‘(C) is marketed by that person or another acting in concert
with that person with that person’s knowledge for use in circumventing
a technological measure that effectively controls
access to a work protected under this title.
‘‘(3) As used in this subsection--
‘‘(A) to ‘circumvent a technological measure’ means to
descramble a scrambled work, to decrypt an encrypted work,
or otherwise to avoid, bypass, remove, deactivate, or impair
a technological measure, without the authority of the copyright
owner; and
‘‘(B) a technological measure ‘effectively controls access to
a work’ if the measure, in the ordinary course of its operation,
requires the application of information, or a process or a treatment,
with the authority of the copyright owner, to gain access
to the work.
‘‘(b) ADDITIONAL VIOLATIONS.—(1) No person shall manufacture,
import, offer to the public, provide, or otherwise traffic in any
technology, product, service, device, component, or part thereof,
that--
‘‘(A) is primarily designed or produced for the purpose
of circumventing protection afforded by a technological measure
that effectively protects a right of a copyright owner under
this title in a work or a portion thereof;
‘‘(B) has only limited commercially significant purpose or
use other than to circumvent protection afforded by a technological
measure that effectively protects a right of a copyright
owner under this title in a work or a portion thereof; or
‘‘(C) is marketed by that person or another acting in concert
with that person with that person’s knowledge for use in circumventing
protection afforded by a technological measure that
effectively protects a right of a copyright owner under this
title in a work or a portion thereof.
‘‘(2) As used in this subsection--
‘‘(A) to ‘circumvent protection afforded by a technological
measure’ means avoiding, bypassing, removing, deactivating,
or otherwise impairing a technological measure; and
‘‘(B) a technological measure ‘effectively protects a right
of a copyright owner under this title’ if the measure, in the
ordinary course of its operation, prevents, restricts, or otherwise
limits the exercise of a right of a copyright owner under this
title.
‘‘(c) OTHER RIGHTS, ETC., NOT AFFECTED.—(1) Nothing in this
section shall affect rights, remedies, limitations, or defenses to
copyright infringement, including fair use, under this title.
‘‘(2) Nothing in this section shall enlarge or diminish vicarious
or contributory liability for copyright infringement in connection
with any technology, product, service, device, component, or part
thereof.
‘‘(3) Nothing in this section shall require that the design of,
or design and selection of parts and components for, a consumer
electronics, telecommunications, or computing product provide for
a response to any particular technological measure, so long as
such part or component, or the product in which such part or
component is integrated, does not otherwise fall within the prohibitions
of subsection (a)(2) or (b)(1).
112 STAT. 2866 PUBLIC LAW 105–304—OCT. 28, 1998
‘‘(4) Nothing in this section shall enlarge or diminish any rights
of free speech or the press for activities using consumer electronics,
telecommunications, or computing products.
‘‘(d) EXEMPTION FOR NONPROFIT LIBRARIES, ARCHIVES, AND EDUCATIONAL
INSTITUTIONS.—(1) A nonprofit library, archives, or educational
institution which gains access to a commercially exploited
copyrighted work solely in order to make a good faith determination
of whether to acquire a copy of that work for the sole purpose
of engaging in conduct permitted under this title shall not be
in violation of subsection (a)(1)(A). A copy of a work to which
access has been gained under this paragraph--
‘‘(A) may not be retained longer than necessary to make
such good faith determination; and
‘‘(B) may not be used for any other purpose.
‘‘(2) The exemption made available under paragraph (1) shall
only apply with respect to a work when an identical copy of that
work is not reasonably available in another form.
‘‘(3) A nonprofit library, archives, or educational institution
that willfully for the purpose of commercial advantage or financial
gain violates paragraph (1)--
‘‘(A) shall, for the first offense, be subject to the civil
remedies under section 1203; and
‘‘(B) shall, for repeated or subsequent offenses, in addition
to the civil remedies under section 1203, forfeit the exemption
provided under paragraph (1).
‘‘(4) This subsection may not be used as a defense to a claim
under subsection (a)(2) or (b), nor may this subsection permit a
nonprofit library, archives, or educational institution to manufacture,
import, offer to the public, provide, or otherwise traffic in
any technology, product, service, component, or part thereof, which
circumvents a technological measure.
‘‘(5) In order for a library or archives to qualify for the exemption
under this subsection, the collections of that library or archives
shall be--
‘‘(A) open to the public; or
‘‘(B) available not only to researchers affiliated with the
library or archives or with the institution of which it is a
part, but also to other persons doing research in a specialized
field.
‘‘(e) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERNMENT
ACTIVITIES.—This section does not prohibit any lawfully
authorized investigative, protective, information security, or intelligence
activity of an officer, agent, or employee of the United
States, a State, or a political subdivision of a State, or a person
acting pursuant to a contract with the United States, a State,
or a political subdivision of a State. For purposes of this subsection,
the term ‘information security’ means activities carried out in order
to identify and address the vulnerabilities of a government computer,
computer system, or computer network.
‘‘(f ) REVERSE ENGINEERING.—(1) Notwithstanding the provisions
of subsection (a)(1)(A), a person who has lawfully obtained
the right to use a copy of a computer program may circumvent
a technological measure that effectively controls access to a particular
portion of that program for the sole purpose of identifying
and analyzing those elements of the program that are necessary
to achieve interoperability of an independently created computer
program with other programs, and that have not previously been
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2867
readily available to the person engaging in the circumvention, to
the extent any such acts of identification and analysis do not
constitute infringement under this title.
‘‘(2) Notwithstanding the provisions of subsections (a)(2) and
(b), a person may develop and employ technological means to circumvent
a technological measure, or to circumvent protection
afforded by a technological measure, in order to enable the identification
and analysis under paragraph (1), or for the purpose of
enabling interoperability of an independently created computer program
with other programs, if such means are necessary to achieve
such interoperability, to the extent that doing so does not constitute
infringement under this title.
‘‘(3) The information acquired through the acts permitted under
paragraph (1), and the means permitted under paragraph (2), may
be made available to others if the person referred to in paragraph
(1) or (2), as the case may be, provides such information or means
solely for the purpose of enabling interoperability of an independently
created computer program with other programs, and to the
extent that doing so does not constitute infringement under this
title or violate applicable law other than this section.
‘‘(4) For purposes of this subsection, the term ‘interoperability’
means the ability of computer programs to exchange information,
and of such programs mutually to use the information which has
been exchanged.
‘‘(g) ENCRYPTION RESEARCH.--
‘‘(1) DEFINITIONS.—For purposes of this subsection--
‘‘(A) the term ‘encryption research’ means activities
necessary to identify and analyze flaws and vulnerabilities
of encryption technologies applied to copyrighted works,
if these activities are conducted to advance the state of
knowledge in the field of encryption technology or to assist
in the development of encryption products; and
‘‘(B) the term ‘encryption technology’ means the scrambling
and descrambling of information using mathematical
formulas or algorithms.
‘‘(2) PERMISSIBLE ACTS OF ENCRYPTION RESEARCH.—Notwithstanding
the provisions of subsection (a)(1)(A), it is not
a violation of that subsection for a person to circumvent a
technological measure as applied to a copy, phonorecord,
performance, or display of a published work in the course
of an act of good faith encryption research if--
‘‘(A) the person lawfully obtained the encrypted copy,
phonorecord, performance, or display of the published work;
‘‘(B) such act is necessary to conduct such encryption
research;
‘‘(C) the person made a good faith effort to obtain
authorization before the circumvention; and
‘‘(D) such act does not constitute infringement under
this title or a violation of applicable law other than this
section, including section 1030 of title 18 and those provisions
of title 18 amended by the Computer Fraud and
Abuse Act of 1986.
‘‘(3) FACTORS IN DETERMINING EXEMPTION.—In determining
whether a person qualifies for the exemption under paragraph
(2), the factors to be considered shall include--
‘‘(A) whether the information derived from the
encryption research was disseminated, and if so, whether
112 STAT. 2868 PUBLIC LAW 105–304—OCT. 28, 1998
it was disseminated in a manner reasonably calculated
to advance the state of knowledge or development of
encryption technology, versus whether it was disseminated
in a manner that facilitates infringement under this title
or a violation of applicable law other than this section,
including a violation of privacy or breach of security;
‘‘(B) whether the person is engaged in a legitimate
course of study, is employed, or is appropriately trained
or experienced, in the field of encryption technology; and
‘‘(C) whether the person provides the copyright owner
of the work to which the technological measure is applied
with notice of the findings and documentation of the
research, and the time when such notice is provided.
‘‘(4) USE OF TECHNOLOGICAL MEANS FOR RESEARCH ACTIVITIES.--
Notwithstanding the provisions of subsection (a)(2), it
is not a violation of that subsection for a person to--
‘‘(A) develop and employ technological means to circumvent
a technological measure for the sole purpose of
that person performing the acts of good faith encryption
research described in paragraph (2); and
‘‘(B) provide the technological means to another person
with whom he or she is working collaboratively for the
purpose of conducting the acts of good faith encryption
research described in paragraph (2) or for the purpose
of having that other person verify his or her acts of good
faith encryption research described in paragraph (2).
‘‘(5) REPORT TO CONGRESS.—Not later than 1 year after
the date of the enactment of this chapter, the Register of
Copyrights and the Assistant Secretary for Communications
and Information of the Department of Commerce shall jointly
report to the Congress on the effect this subsection has had
on--
‘‘(A) encryption research and the development of
encryption technology;
‘‘(B) the adequacy and effectiveness of technological
measures designed to protect copyrighted works; and
‘‘(C) protection of copyright owners against the
unauthorized access to their encrypted copyrighted works.
The report shall include legislative recommendations, if any.
‘‘(h) EXCEPTIONS REGARDING MINORS.—In applying subsection
(a) to a component or part, the court may consider the necessity
for its intended and actual incorporation in a technology, product,
service, or device, which--
‘‘(1) does not itself violate the provisions of this title; and
‘‘(2) has the sole purpose to prevent the access of minors
to material on the Internet.
‘‘(i) PROTECTION OF PERSONALLY IDENTIFYING INFORMATION.--
(1) CIRCUMVENTION PERMITTED.—Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of that
subsection for a person to circumvent a technological measure
that effectively controls access to a work protected under this
title, if--
‘‘(A) the technological measure, or the work it protects,
contains the capability of collecting or disseminating
personally identifying information reflecting the online
activities of a natural person who seeks to gain access
to the work protected;
Deadline.
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2869
‘‘(B) in the normal course of its operation, the technological
measure, or the work it protects, collects or disseminates
personally identifying information about the person
who seeks to gain access to the work protected, without
providing conspicuous notice of such collection or dissemination
to such person, and without providing such person
with the capability to prevent or restrict such collection
or dissemination;
‘‘(C) the act of circumvention has the sole effect of
identifying and disabling the capability described in
subparagraph (A), and has no other effect on the ability
of any person to gain access to any work; and
‘‘(D) the act of circumvention is carried out solely for
the purpose of preventing the collection or dissemination
of personally identifying information about a natural person
who seeks to gain access to the work protected, and
is not in violation of any other law.
‘‘(2) INAPPLICABILITY TO CERTAIN TECHNOLOGICAL
MEASURES.—This subsection does not apply to a technological
measure, or a work it protects, that does not collect or disseminate
personally identifying information and that is disclosed
to a user as not having or using such capability.
‘‘( j) SECURITY TESTING.--
‘‘(1) DEFINITION.—For purposes of this subsection, the term
‘security testing’ means accessing a computer, computer system,
or computer network, solely for the purpose of good faith testing,
investigating, or correcting, a security flaw or vulnerability,
with the authorization of the owner or operator of such computer,
computer system, or computer network.
‘‘(2) PERMISSIBLE ACTS OF SECURITY TESTING.—Notwithstanding
the provisions of subsection (a)(1)(A), it is not a violation
of that subsection for a person to engage in an act of
security testing, if such act does not constitute infringement
under this title or a violation of applicable law other than
this section, including section 1030 of title 18 and those provisions
of title 18 amended by the Computer Fraud and Abuse
Act of 1986.
‘‘(3) FACTORS IN DETERMINING EXEMPTION.—In determining
whether a person qualifies for the exemption under paragraph
(2), the factors to be considered shall include--
‘‘(A) whether the information derived from the security
testing was used solely to promote the security of the
owner or operator of such computer, computer system or
computer network, or shared directly with the developer
of such computer, computer system, or computer network;
and
‘‘(B) whether the information derived from the security
testing was used or maintained in a manner that does
not facilitate infringement under this title or a violation
of applicable law other than this section, including a violation
of privacy or breach of security.
‘‘(4) USE OF TECHNOLOGICAL MEANS FOR SECURITY TESTING.--
Notwithstanding the provisions of subsection (a)(2), it
is not a violation of that subsection for a person to develop,
produce, distribute or employ technological means for the sole
purpose of performing the acts of security testing described
112 STAT. 2870 PUBLIC LAW 105–304—OCT. 28, 1998
in subsection (2), provided such technological means does not
otherwise violate section (a)(2).
‘‘(k) CERTAIN ANALOG DEVICES AND CERTAIN TECHNOLOGICAL
MEASURES.--
‘‘(1) CERTAIN ANALOG DEVICES.--
‘‘(A) Effective 18 months after the date of the enactment
of this chapter, no person shall manufacture, import,
offer to the public, provide or otherwise traffic in any--
‘‘(i) VHS format analog video cassette recorder
unless such recorder conforms to the automatic gain
control copy control technology;
‘‘(ii) 8mm format analog video cassette camcorder
unless such camcorder conforms to the automatic gain
control technology;
‘‘(iii) Beta format analog video cassette recorder,
unless such recorder conforms to the automatic gain
control copy control technology, except that this
requirement shall not apply until there are 1,000 Beta
format analog video cassette recorders sold in the
United States in any one calendar year after the date
of the enactment of this chapter;
‘‘(iv) 8mm format analog video cassette recorder
that is not an analog video cassette camcorder, unless
such recorder conforms to the automatic gain control
copy control technology, except that this requirement
shall not apply until there are 20,000 such recorders
sold in the United States in any one calendar year
after the date of the enactment of this chapter; or
‘‘(v) analog video cassette recorder that records
using an NTSC format video input and that is not
otherwise covered under clauses (i) through (iv), unless
such device conforms to the automatic gain control
copy control technology.
‘‘(B) Effective on the date of the enactment of this
chapter, no person shall manufacture, import, offer to the
public, provide or otherwise traffic in--
‘‘(i) any VHS format analog video cassette recorder
or any 8mm format analog video cassette recorder if
the design of the model of such recorder has been
modified after such date of enactment so that a model
of recorder that previously conformed to the automatic
gain control copy control technology no longer conforms
to such technology; or
‘‘(ii) any VHS format analog video cassette
recorder, or any 8mm format analog video cassette
recorder that is not an 8mm analog video cassette
camcorder, if the design of the model of such recorder
has been modified after such date of enactment so
that a model of recorder that previously conformed
to the four-line colorstripe copy control technology no
longer conforms to such technology.
Manufacturers that have not previously manufactured or
sold a VHS format analog video cassette recorder, or an
8mm format analog cassette recorder, shall be required
to conform to the four-line colorstripe copy control technology
in the initial model of any such recorder manufactured
after the date of the enactment of this chapter,
Effective date.
Effective date.
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2871
and thereafter to continue conforming to the four-line
colorstripe copy control technology. For purposes of this
subparagraph, an analog video cassette recorder ‘conforms
to’ the four-line colorstripe copy control technology if it
records a signal that, when played back by the playback
function of that recorder in the normal viewing mode,
exhibits, on a reference display device, a display containing
distracting visible lines through portions of the viewable
picture.
‘‘(2) CERTAIN ENCODING RESTRICTIONS.—No person shall
apply the automatic gain control copy control technology or
colorstripe copy control technology to prevent or limit consumer
copying except such copying--
‘‘(A) of a single transmission, or specified group of
transmissions, of live events or of audiovisual works for
which a member of the public has exercised choice in
selecting the transmissions, including the content of the
transmissions or the time of receipt of such transmissions,
or both, and as to which such member is charged a separate
fee for each such transmission or specified group of transmissions;
‘‘(B) from a copy of a transmission of a live event
or an audiovisual work if such transmission is provided
by a channel or service where payment is made by a
member of the public for such channel or service in the
form of a subscription fee that entitles the member of
the public to receive all of the programming contained
in such channel or service;
‘‘(C) from a physical medium containing one or more
prerecorded audiovisual works; or
‘‘(D) from a copy of a transmission described in
subparagraph (A) or from a copy made from a physical
medium described in subparagraph (C).
In the event that a transmission meets both the conditions
set forth in subparagraph (A) and those set forth in subparagraph
(B), the transmission shall be treated as a transmission
described in subparagraph (A).
‘‘(3) INAPPLICABILITY.—This subsection shall not--
‘‘(A) require any analog video cassette camcorder to
conform to the automatic gain control copy control technology
with respect to any video signal received through
a camera lens;
‘‘(B) apply to the manufacture, importation, offer for
sale, provision of, or other trafficking in, any professional
analog video cassette recorder; or
‘‘(C) apply to the offer for sale or provision of, or
other trafficking in, any previously owned analog video
cassette recorder, if such recorder was legally manufactured
and sold when new and not subsequently modified in violation
of paragraph (1)(B).
‘‘(4) DEFINITIONS.—For purposes of this subsection:
‘‘(A) An ‘analog video cassette recorder’ means a device
that records, or a device that includes a function that
records, on electromagnetic tape in an analog format the
electronic impulses produced by the video and audio portions
of a television program, motion picture, or other form
of audiovisual work.
112 STAT. 2872 PUBLIC LAW 105–304—OCT. 28, 1998
‘‘(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.
‘‘§ 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.
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2873
‘‘(c) DEFINITION.—As used in this section, the term ‘copyright
management information’ means any of the following information
conveyed in connection with copies or phonorecords of a work or
performances or displays of a work, including in digital form, except
that such term does not include any personally identifying information
about a user of a work or of a copy, phonorecord, performance,
or display of a work:
‘‘(1) The title and other information identifying the work,
including the information set forth on a notice of copyright.
‘‘(2) The name of, and other identifying information about,
the author of a work.
‘‘(3) The name of, and other identifying information about,
the copyright owner of the work, including the information
set forth in a notice of copyright.
‘‘(4) With the exception of public performances of works
by radio and television broadcast stations, the name of, and
other identifying information about, a performer whose
performance is fixed in a work other than an audiovisual work.
‘‘(5) With the exception of public performances of works
by radio and television broadcast stations, in the case of an
audiovisual work, the name of, and other identifying information
about, a writer, performer, or director who is credited
in the audiovisual work.
‘‘(6) Terms and conditions for use of the work.
‘‘(7) Identifying numbers or symbols referring to such
information or links to such information.
‘‘(8) Such other information as the Register of Copyrights
may prescribe by regulation, except that the Register of Copyrights
may not require the provision of any information concerning
the user of a copyrighted work.
‘‘(d) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERNMENT
ACTIVITIES.—This section does not prohibit any lawfully
authorized investigative, protective, information security, or intelligence
activity of an officer, agent, or employee of the United
States, a State, or a political subdivision of a State, or a person
acting pursuant to a contract with the United States, a State,
or a political subdivision of a State. For purposes of this subsection,
the term ‘information security’ means activities carried out in order
to identify and address the vulnerabilities of a government computer,
computer system, or computer network.
‘‘(e) LIMITATIONS ON LIABILITY.--
‘‘(1) ANALOG TRANSMISSIONS.—In the case of an analog
transmission, a person who is making transmissions in its
capacity as a broadcast station, or as a cable system, or someone
who provides programming to such station or system, shall
not be liable for a violation of subsection (b) if--
‘‘(A) avoiding the activity that constitutes such violation
is not technically feasible or would create an undue
financial hardship on such person; and
‘‘(B) such person did not intend, by engaging in such
activity, to induce, enable, facilitate, or conceal infringement
of a right under this title.
‘‘(2) DIGITAL TRANSMISSIONS.--
‘‘(A) If a digital transmission standard for the placement
of copyright management information for a category
of works is set in a voluntary, consensus standard-setting
process involving a representative cross-section of broadcast
112 STAT. 2874 PUBLIC LAW 105–304—OCT. 28, 1998
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
or works, a person identified in paragraph (1) shall not
be liable for a violation of subsection (b) with respect to
such copyright management information, if the activity
that constitutes such violation is not intended to induce,
enable, facilitate, or conceal infringement of a right under
this title, and if--
‘‘(i) the transmission of such information by such
person would result in a perceptible visual or aural
degradation of the digital signal; or
‘‘(ii) the transmission of such information by such
person would conflict with--
‘‘(I) an applicable government regulation
relating to transmission of information in a digital
signal;
‘‘(II) an applicable industry-wide standard
relating to the transmission of information in a
digital signal that was adopted by a voluntary
consensus standards body prior to the effective
date of this chapter; or
‘‘(III) an applicable industry-wide standard
relating to the transmission of information in a
digital signal that was adopted in a voluntary,
consensus standards-setting process open to
participation by a representative cross-section of
broadcast stations or cable systems and copyright
owners of a category of works that are intended
for public performance by such stations or systems.
‘‘(3) DEFINITIONS.—As used in this subsection--
‘‘(A) the term ‘broadcast station’ has the meaning given
that term in section 3 of the Communications Act of 1934
(47 U.S.C. 153); and
‘‘(B) the term ‘cable system’ has the meaning given
that term in section 602 of the Communications Act of
1934 (47 U.S.C. 522).
‘‘§ 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--
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2875
‘‘(1) may grant temporary and permanent injunctions on
such terms as it deems reasonable to prevent or restrain a
violation, but in no event shall impose a prior restraint on
free speech or the press protected under the 1st amendment
to the Constitution;
‘‘(2) at any time while an action is pending, may order
the impounding, on such terms as it deems reasonable, of
any device or product that is in the custody or control of
the alleged violator and that the court has reasonable cause
to believe was involved in a violation;
‘‘(3) may award damages under subsection (c);
‘‘(4) in its discretion may allow the recovery of costs by
or against any party other than the United States or an officer
thereof;
‘‘(5) in its discretion may award reasonable attorney’s fees
to the prevailing party; and
‘‘(6) may, as part of a final judgment or decree finding
a violation, order the remedial modification or the destruction
of any device or product involved in the violation that is in
the custody or control of the violator or has been impounded
under paragraph (2).
‘‘(c) AWARD OF DAMAGES.--
‘‘(1) IN GENERAL.—Except as otherwise provided in this
title, a person committing a violation of section 1201 or 1202
is liable for either--
‘‘(A) the actual damages and any additional profits
of the violator, as provided in paragraph (2), or
‘‘(B) statutory damages, as provided in paragraph (3).
‘‘(2) ACTUAL DAMAGES.—The court shall award to the
complaining party the actual damages suffered by the party
as a result of the violation, and any profits of the violator
that are attributable to the violation and are not taken into
account in computing the actual damages, if the complaining
party elects such damages at any time before final judgment
is entered.
‘‘(3) STATUTORY DAMAGES.—(A) At any time before final
judgment is entered, a complaining party may elect to recover
an award of statutory damages for each violation of section
1201 in the sum of not less than $200 or more than $2,500
per act of circumvention, device, product, component, offer,
or performance of service, as the court considers just.
‘‘(B) At any time before final judgment is entered, a
DIGITAL MILLENNIUM COPYRIGHT ACT
112 STAT. 2860 PUBLIC LAW 105–304—OCT. 28, 1998
Public Law 105–304
105th Congress
An Act
To amend title 17, United States Code, to implement the World Intellectual Property
Organization Copyright Treaty and Performances and Phonograms Treaty, and
for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Digital Millennium Copyright
Act’’.
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.
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.
17 USC 101 note.
Digital
Millennium
Copyright Act.
Oct. 28, 1998
[H.R. 2281]
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2861
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.’’;
(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:
WIPO Copyright
and
Performances
and Phonograms
Treaties
Implementation
Act of 1998.
17 USC 101 note.
112 STAT. 2862 PUBLIC LAW 105–304—OCT. 28, 1998
‘‘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);
(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
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2863
‘‘(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;
‘‘(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.
(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.
‘‘§ 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
112 STAT. 2864 PUBLIC LAW 105–304—OCT. 28, 1998
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 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
Publication.
Reports.
Regulations.
Effective date.
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2865
‘‘(C) is marketed by that person or another acting in concert
with that person with that person’s knowledge for use in circumventing
a technological measure that effectively controls
access to a work protected under this title.
‘‘(3) As used in this subsection--
‘‘(A) to ‘circumvent a technological measure’ means to
descramble a scrambled work, to decrypt an encrypted work,
or otherwise to avoid, bypass, remove, deactivate, or impair
a technological measure, without the authority of the copyright
owner; and
‘‘(B) a technological measure ‘effectively controls access to
a work’ if the measure, in the ordinary course of its operation,
requires the application of information, or a process or a treatment,
with the authority of the copyright owner, to gain access
to the work.
‘‘(b) ADDITIONAL VIOLATIONS.—(1) No person shall manufacture,
import, offer to the public, provide, or otherwise traffic in any
technology, product, service, device, component, or part thereof,
that--
‘‘(A) is primarily designed or produced for the purpose
of circumventing protection afforded by a technological measure
that effectively protects a right of a copyright owner under
this title in a work or a portion thereof;
‘‘(B) has only limited commercially significant purpose or
use other than to circumvent protection afforded by a technological
measure that effectively protects a right of a copyright
owner under this title in a work or a portion thereof; or
‘‘(C) is marketed by that person or another acting in concert
with that person with that person’s knowledge for use in circumventing
protection afforded by a technological measure that
effectively protects a right of a copyright owner under this
title in a work or a portion thereof.
‘‘(2) As used in this subsection--
‘‘(A) to ‘circumvent protection afforded by a technological
measure’ means avoiding, bypassing, removing, deactivating,
or otherwise impairing a technological measure; and
‘‘(B) a technological measure ‘effectively protects a right
of a copyright owner under this title’ if the measure, in the
ordinary course of its operation, prevents, restricts, or otherwise
limits the exercise of a right of a copyright owner under this
title.
‘‘(c) OTHER RIGHTS, ETC., NOT AFFECTED.—(1) Nothing in this
section shall affect rights, remedies, limitations, or defenses to
copyright infringement, including fair use, under this title.
‘‘(2) Nothing in this section shall enlarge or diminish vicarious
or contributory liability for copyright infringement in connection
with any technology, product, service, device, component, or part
thereof.
‘‘(3) Nothing in this section shall require that the design of,
or design and selection of parts and components for, a consumer
electronics, telecommunications, or computing product provide for
a response to any particular technological measure, so long as
such part or component, or the product in which such part or
component is integrated, does not otherwise fall within the prohibitions
of subsection (a)(2) or (b)(1).
112 STAT. 2866 PUBLIC LAW 105–304—OCT. 28, 1998
‘‘(4) Nothing in this section shall enlarge or diminish any rights
of free speech or the press for activities using consumer electronics,
telecommunications, or computing products.
‘‘(d) EXEMPTION FOR NONPROFIT LIBRARIES, ARCHIVES, AND EDUCATIONAL
INSTITUTIONS.—(1) A nonprofit library, archives, or educational
institution which gains access to a commercially exploited
copyrighted work solely in order to make a good faith determination
of whether to acquire a copy of that work for the sole purpose
of engaging in conduct permitted under this title shall not be
in violation of subsection (a)(1)(A). A copy of a work to which
access has been gained under this paragraph--
‘‘(A) may not be retained longer than necessary to make
such good faith determination; and
‘‘(B) may not be used for any other purpose.
‘‘(2) The exemption made available under paragraph (1) shall
only apply with respect to a work when an identical copy of that
work is not reasonably available in another form.
‘‘(3) A nonprofit library, archives, or educational institution
that willfully for the purpose of commercial advantage or financial
gain violates paragraph (1)--
‘‘(A) shall, for the first offense, be subject to the civil
remedies under section 1203; and
‘‘(B) shall, for repeated or subsequent offenses, in addition
to the civil remedies under section 1203, forfeit the exemption
provided under paragraph (1).
‘‘(4) This subsection may not be used as a defense to a claim
under subsection (a)(2) or (b), nor may this subsection permit a
nonprofit library, archives, or educational institution to manufacture,
import, offer to the public, provide, or otherwise traffic in
any technology, product, service, component, or part thereof, which
circumvents a technological measure.
‘‘(5) In order for a library or archives to qualify for the exemption
under this subsection, the collections of that library or archives
shall be--
‘‘(A) open to the public; or
‘‘(B) available not only to researchers affiliated with the
library or archives or with the institution of which it is a
part, but also to other persons doing research in a specialized
field.
‘‘(e) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERNMENT
ACTIVITIES.—This section does not prohibit any lawfully
authorized investigative, protective, information security, or intelligence
activity of an officer, agent, or employee of the United
States, a State, or a political subdivision of a State, or a person
acting pursuant to a contract with the United States, a State,
or a political subdivision of a State. For purposes of this subsection,
the term ‘information security’ means activities carried out in order
to identify and address the vulnerabilities of a government computer,
computer system, or computer network.
‘‘(f ) REVERSE ENGINEERING.—(1) Notwithstanding the provisions
of subsection (a)(1)(A), a person who has lawfully obtained
the right to use a copy of a computer program may circumvent
a technological measure that effectively controls access to a particular
portion of that program for the sole purpose of identifying
and analyzing those elements of the program that are necessary
to achieve interoperability of an independently created computer
program with other programs, and that have not previously been
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2867
readily available to the person engaging in the circumvention, to
the extent any such acts of identification and analysis do not
constitute infringement under this title.
‘‘(2) Notwithstanding the provisions of subsections (a)(2) and
(b), a person may develop and employ technological means to circumvent
a technological measure, or to circumvent protection
afforded by a technological measure, in order to enable the identification
and analysis under paragraph (1), or for the purpose of
enabling interoperability of an independently created computer program
with other programs, if such means are necessary to achieve
such interoperability, to the extent that doing so does not constitute
infringement under this title.
‘‘(3) The information acquired through the acts permitted under
paragraph (1), and the means permitted under paragraph (2), may
be made available to others if the person referred to in paragraph
(1) or (2), as the case may be, provides such information or means
solely for the purpose of enabling interoperability of an independently
created computer program with other programs, and to the
extent that doing so does not constitute infringement under this
title or violate applicable law other than this section.
‘‘(4) For purposes of this subsection, the term ‘interoperability’
means the ability of computer programs to exchange information,
and of such programs mutually to use the information which has
been exchanged.
‘‘(g) ENCRYPTION RESEARCH.--
‘‘(1) DEFINITIONS.—For purposes of this subsection--
‘‘(A) the term ‘encryption research’ means activities
necessary to identify and analyze flaws and vulnerabilities
of encryption technologies applied to copyrighted works,
if these activities are conducted to advance the state of
knowledge in the field of encryption technology or to assist
in the development of encryption products; and
‘‘(B) the term ‘encryption technology’ means the scrambling
and descrambling of information using mathematical
formulas or algorithms.
‘‘(2) PERMISSIBLE ACTS OF ENCRYPTION RESEARCH.—Notwithstanding
the provisions of subsection (a)(1)(A), it is not
a violation of that subsection for a person to circumvent a
technological measure as applied to a copy, phonorecord,
performance, or display of a published work in the course
of an act of good faith encryption research if--
‘‘(A) the person lawfully obtained the encrypted copy,
phonorecord, performance, or display of the published work;
‘‘(B) such act is necessary to conduct such encryption
research;
‘‘(C) the person made a good faith effort to obtain
authorization before the circumvention; and
‘‘(D) such act does not constitute infringement under
this title or a violation of applicable law other than this
section, including section 1030 of title 18 and those provisions
of title 18 amended by the Computer Fraud and
Abuse Act of 1986.
‘‘(3) FACTORS IN DETERMINING EXEMPTION.—In determining
whether a person qualifies for the exemption under paragraph
(2), the factors to be considered shall include--
‘‘(A) whether the information derived from the
encryption research was disseminated, and if so, whether
112 STAT. 2868 PUBLIC LAW 105–304—OCT. 28, 1998
it was disseminated in a manner reasonably calculated
to advance the state of knowledge or development of
encryption technology, versus whether it was disseminated
in a manner that facilitates infringement under this title
or a violation of applicable law other than this section,
including a violation of privacy or breach of security;
‘‘(B) whether the person is engaged in a legitimate
course of study, is employed, or is appropriately trained
or experienced, in the field of encryption technology; and
‘‘(C) whether the person provides the copyright owner
of the work to which the technological measure is applied
with notice of the findings and documentation of the
research, and the time when such notice is provided.
‘‘(4) USE OF TECHNOLOGICAL MEANS FOR RESEARCH ACTIVITIES.--
Notwithstanding the provisions of subsection (a)(2), it
is not a violation of that subsection for a person to--
‘‘(A) develop and employ technological means to circumvent
a technological measure for the sole purpose of
that person performing the acts of good faith encryption
research described in paragraph (2); and
‘‘(B) provide the technological means to another person
with whom he or she is working collaboratively for the
purpose of conducting the acts of good faith encryption
research described in paragraph (2) or for the purpose
of having that other person verify his or her acts of good
faith encryption research described in paragraph (2).
‘‘(5) REPORT TO CONGRESS.—Not later than 1 year after
the date of the enactment of this chapter, the Register of
Copyrights and the Assistant Secretary for Communications
and Information of the Department of Commerce shall jointly
report to the Congress on the effect this subsection has had
on--
‘‘(A) encryption research and the development of
encryption technology;
‘‘(B) the adequacy and effectiveness of technological
measures designed to protect copyrighted works; and
‘‘(C) protection of copyright owners against the
unauthorized access to their encrypted copyrighted works.
The report shall include legislative recommendations, if any.
‘‘(h) EXCEPTIONS REGARDING MINORS.—In applying subsection
(a) to a component or part, the court may consider the necessity
for its intended and actual incorporation in a technology, product,
service, or device, which--
‘‘(1) does not itself violate the provisions of this title; and
‘‘(2) has the sole purpose to prevent the access of minors
to material on the Internet.
‘‘(i) PROTECTION OF PERSONALLY IDENTIFYING INFORMATION.--
(1) CIRCUMVENTION PERMITTED.—Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of that
subsection for a person to circumvent a technological measure
that effectively controls access to a work protected under this
title, if--
‘‘(A) the technological measure, or the work it protects,
contains the capability of collecting or disseminating
personally identifying information reflecting the online
activities of a natural person who seeks to gain access
to the work protected;
Deadline.
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2869
‘‘(B) in the normal course of its operation, the technological
measure, or the work it protects, collects or disseminates
personally identifying information about the person
who seeks to gain access to the work protected, without
providing conspicuous notice of such collection or dissemination
to such person, and without providing such person
with the capability to prevent or restrict such collection
or dissemination;
‘‘(C) the act of circumvention has the sole effect of
identifying and disabling the capability described in
subparagraph (A), and has no other effect on the ability
of any person to gain access to any work; and
‘‘(D) the act of circumvention is carried out solely for
the purpose of preventing the collection or dissemination
of personally identifying information about a natural person
who seeks to gain access to the work protected, and
is not in violation of any other law.
‘‘(2) INAPPLICABILITY TO CERTAIN TECHNOLOGICAL
MEASURES.—This subsection does not apply to a technological
measure, or a work it protects, that does not collect or disseminate
personally identifying information and that is disclosed
to a user as not having or using such capability.
‘‘( j) SECURITY TESTING.--
‘‘(1) DEFINITION.—For purposes of this subsection, the term
‘security testing’ means accessing a computer, computer system,
or computer network, solely for the purpose of good faith testing,
investigating, or correcting, a security flaw or vulnerability,
with the authorization of the owner or operator of such computer,
computer system, or computer network.
‘‘(2) PERMISSIBLE ACTS OF SECURITY TESTING.—Notwithstanding
the provisions of subsection (a)(1)(A), it is not a violation
of that subsection for a person to engage in an act of
security testing, if such act does not constitute infringement
under this title or a violation of applicable law other than
this section, including section 1030 of title 18 and those provisions
of title 18 amended by the Computer Fraud and Abuse
Act of 1986.
‘‘(3) FACTORS IN DETERMINING EXEMPTION.—In determining
whether a person qualifies for the exemption under paragraph
(2), the factors to be considered shall include--
‘‘(A) whether the information derived from the security
testing was used solely to promote the security of the
owner or operator of such computer, computer system or
computer network, or shared directly with the developer
of such computer, computer system, or computer network;
and
‘‘(B) whether the information derived from the security
testing was used or maintained in a manner that does
not facilitate infringement under this title or a violation
of applicable law other than this section, including a violation
of privacy or breach of security.
‘‘(4) USE OF TECHNOLOGICAL MEANS FOR SECURITY TESTING.--
Notwithstanding the provisions of subsection (a)(2), it
is not a violation of that subsection for a person to develop,
produce, distribute or employ technological means for the sole
purpose of performing the acts of security testing described
112 STAT. 2870 PUBLIC LAW 105–304—OCT. 28, 1998
in subsection (2), provided such technological means does not
otherwise violate section (a)(2).
‘‘(k) CERTAIN ANALOG DEVICES AND CERTAIN TECHNOLOGICAL
MEASURES.--
‘‘(1) CERTAIN ANALOG DEVICES.--
‘‘(A) Effective 18 months after the date of the enactment
of this chapter, no person shall manufacture, import,
offer to the public, provide or otherwise traffic in any--
‘‘(i) VHS format analog video cassette recorder
unless such recorder conforms to the automatic gain
control copy control technology;
‘‘(ii) 8mm format analog video cassette camcorder
unless such camcorder conforms to the automatic gain
control technology;
‘‘(iii) Beta format analog video cassette recorder,
unless such recorder conforms to the automatic gain
control copy control technology, except that this
requirement shall not apply until there are 1,000 Beta
format analog video cassette recorders sold in the
United States in any one calendar year after the date
of the enactment of this chapter;
‘‘(iv) 8mm format analog video cassette recorder
that is not an analog video cassette camcorder, unless
such recorder conforms to the automatic gain control
copy control technology, except that this requirement
shall not apply until there are 20,000 such recorders
sold in the United States in any one calendar year
after the date of the enactment of this chapter; or
‘‘(v) analog video cassette recorder that records
using an NTSC format video input and that is not
otherwise covered under clauses (i) through (iv), unless
such device conforms to the automatic gain control
copy control technology.
‘‘(B) Effective on the date of the enactment of this
chapter, no person shall manufacture, import, offer to the
public, provide or otherwise traffic in--
‘‘(i) any VHS format analog video cassette recorder
or any 8mm format analog video cassette recorder if
the design of the model of such recorder has been
modified after such date of enactment so that a model
of recorder that previously conformed to the automatic
gain control copy control technology no longer conforms
to such technology; or
‘‘(ii) any VHS format analog video cassette
recorder, or any 8mm format analog video cassette
recorder that is not an 8mm analog video cassette
camcorder, if the design of the model of such recorder
has been modified after such date of enactment so
that a model of recorder that previously conformed
to the four-line colorstripe copy control technology no
longer conforms to such technology.
Manufacturers that have not previously manufactured or
sold a VHS format analog video cassette recorder, or an
8mm format analog cassette recorder, shall be required
to conform to the four-line colorstripe copy control technology
in the initial model of any such recorder manufactured
after the date of the enactment of this chapter,
Effective date.
Effective date.
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2871
and thereafter to continue conforming to the four-line
colorstripe copy control technology. For purposes of this
subparagraph, an analog video cassette recorder ‘conforms
to’ the four-line colorstripe copy control technology if it
records a signal that, when played back by the playback
function of that recorder in the normal viewing mode,
exhibits, on a reference display device, a display containing
distracting visible lines through portions of the viewable
picture.
‘‘(2) CERTAIN ENCODING RESTRICTIONS.—No person shall
apply the automatic gain control copy control technology or
colorstripe copy control technology to prevent or limit consumer
copying except such copying--
‘‘(A) of a single transmission, or specified group of
transmissions, of live events or of audiovisual works for
which a member of the public has exercised choice in
selecting the transmissions, including the content of the
transmissions or the time of receipt of such transmissions,
or both, and as to which such member is charged a separate
fee for each such transmission or specified group of transmissions;
‘‘(B) from a copy of a transmission of a live event
or an audiovisual work if such transmission is provided
by a channel or service where payment is made by a
member of the public for such channel or service in the
form of a subscription fee that entitles the member of
the public to receive all of the programming contained
in such channel or service;
‘‘(C) from a physical medium containing one or more
prerecorded audiovisual works; or
‘‘(D) from a copy of a transmission described in
subparagraph (A) or from a copy made from a physical
medium described in subparagraph (C).
In the event that a transmission meets both the conditions
set forth in subparagraph (A) and those set forth in subparagraph
(B), the transmission shall be treated as a transmission
described in subparagraph (A).
‘‘(3) INAPPLICABILITY.—This subsection shall not--
‘‘(A) require any analog video cassette camcorder to
conform to the automatic gain control copy control technology
with respect to any video signal received through
a camera lens;
‘‘(B) apply to the manufacture, importation, offer for
sale, provision of, or other trafficking in, any professional
analog video cassette recorder; or
‘‘(C) apply to the offer for sale or provision of, or
other trafficking in, any previously owned analog video
cassette recorder, if such recorder was legally manufactured
and sold when new and not subsequently modified in violation
of paragraph (1)(B).
‘‘(4) DEFINITIONS.—For purposes of this subsection:
‘‘(A) An ‘analog video cassette recorder’ means a device
that records, or a device that includes a function that
records, on electromagnetic tape in an analog format the
electronic impulses produced by the video and audio portions
of a television program, motion picture, or other form
of audiovisual work.
112 STAT. 2872 PUBLIC LAW 105–304—OCT. 28, 1998
‘‘(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.
‘‘§ 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.
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2873
‘‘(c) DEFINITION.—As used in this section, the term ‘copyright
management information’ means any of the following information
conveyed in connection with copies or phonorecords of a work or
performances or displays of a work, including in digital form, except
that such term does not include any personally identifying information
about a user of a work or of a copy, phonorecord, performance,
or display of a work:
‘‘(1) The title and other information identifying the work,
including the information set forth on a notice of copyright.
‘‘(2) The name of, and other identifying information about,
the author of a work.
‘‘(3) The name of, and other identifying information about,
the copyright owner of the work, including the information
set forth in a notice of copyright.
‘‘(4) With the exception of public performances of works
by radio and television broadcast stations, the name of, and
other identifying information about, a performer whose
performance is fixed in a work other than an audiovisual work.
‘‘(5) With the exception of public performances of works
by radio and television broadcast stations, in the case of an
audiovisual work, the name of, and other identifying information
about, a writer, performer, or director who is credited
in the audiovisual work.
‘‘(6) Terms and conditions for use of the work.
‘‘(7) Identifying numbers or symbols referring to such
information or links to such information.
‘‘(8) Such other information as the Register of Copyrights
may prescribe by regulation, except that the Register of Copyrights
may not require the provision of any information concerning
the user of a copyrighted work.
‘‘(d) LAW ENFORCEMENT, INTELLIGENCE, AND OTHER GOVERNMENT
ACTIVITIES.—This section does not prohibit any lawfully
authorized investigative, protective, information security, or intelligence
activity of an officer, agent, or employee of the United
States, a State, or a political subdivision of a State, or a person
acting pursuant to a contract with the United States, a State,
or a political subdivision of a State. For purposes of this subsection,
the term ‘information security’ means activities carried out in order
to identify and address the vulnerabilities of a government computer,
computer system, or computer network.
‘‘(e) LIMITATIONS ON LIABILITY.--
‘‘(1) ANALOG TRANSMISSIONS.—In the case of an analog
transmission, a person who is making transmissions in its
capacity as a broadcast station, or as a cable system, or someone
who provides programming to such station or system, shall
not be liable for a violation of subsection (b) if--
‘‘(A) avoiding the activity that constitutes such violation
is not technically feasible or would create an undue
financial hardship on such person; and
‘‘(B) such person did not intend, by engaging in such
activity, to induce, enable, facilitate, or conceal infringement
of a right under this title.
‘‘(2) DIGITAL TRANSMISSIONS.--
‘‘(A) If a digital transmission standard for the placement
of copyright management information for a category
of works is set in a voluntary, consensus standard-setting
process involving a representative cross-section of broadcast
112 STAT. 2874 PUBLIC LAW 105–304—OCT. 28, 1998
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
or works, a person identified in paragraph (1) shall not
be liable for a violation of subsection (b) with respect to
such copyright management information, if the activity
that constitutes such violation is not intended to induce,
enable, facilitate, or conceal infringement of a right under
this title, and if--
‘‘(i) the transmission of such information by such
person would result in a perceptible visual or aural
degradation of the digital signal; or
‘‘(ii) the transmission of such information by such
person would conflict with--
‘‘(I) an applicable government regulation
relating to transmission of information in a digital
signal;
‘‘(II) an applicable industry-wide standard
relating to the transmission of information in a
digital signal that was adopted by a voluntary
consensus standards body prior to the effective
date of this chapter; or
‘‘(III) an applicable industry-wide standard
relating to the transmission of information in a
digital signal that was adopted in a voluntary,
consensus standards-setting process open to
participation by a representative cross-section of
broadcast stations or cable systems and copyright
owners of a category of works that are intended
for public performance by such stations or systems.
‘‘(3) DEFINITIONS.—As used in this subsection--
‘‘(A) the term ‘broadcast station’ has the meaning given
that term in section 3 of the Communications Act of 1934
(47 U.S.C. 153); and
‘‘(B) the term ‘cable system’ has the meaning given
that term in section 602 of the Communications Act of
1934 (47 U.S.C. 522).
‘‘§ 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--
PUBLIC LAW 105–304—OCT. 28, 1998 112 STAT. 2875
‘‘(1) may grant temporary and permanent injunctions on
such terms as it deems reasonable to prevent or restrain a
violation, but in no event shall impose a prior restraint on
free speech or the press protected under the 1st amendment
to the Constitution;
‘‘(2) at any time while an action is pending, may order
the impounding, on such terms as it deems reasonable, of
any device or product that is in the custody or control of
the alleged violator and that the court has reasonable cause
to believe was involved in a violation;
‘‘(3) may award damages under subsection (c);
‘‘(4) in its discretion may allow the recovery of costs by
or against any party other than the United States or an officer
thereof;
‘‘(5) in its discretion may award reasonable attorney’s fees
to the prevailing party; and
‘‘(6) may, as part of a final judgment or decree finding
a violation, order the remedial modification or the destruction
of any device or product involved in the violation that is in
the custody or control of the violator or has been impounded
under paragraph (2).
‘‘(c) AWARD OF DAMAGES.--
‘‘(1) IN GENERAL.—Except as otherwise provided in this
title, a person committing a violation of section 1201 or 1202
is liable for either--
‘‘(A) the actual damages and any additional profits
of the violator, as provided in paragraph (2), or
‘‘(B) statutory damages, as provided in paragraph (3).
‘‘(2) ACTUAL DAMAGES.—The court shall award to the
complaining party the actual damages suffered by the party
as a result of the violation, and any profits of the violator
that are attributable to the violation and are not taken into
account in computing the actual damages, if the complaining
party elects such damages at any time before final judgment
is entered.
‘‘(3) STATUTORY DAMAGES.—(A) At any time before final
judgment is entered, a complaining party may elect to recover
an award of statutory damages for each violation of section
1201 in the sum of not less than $200 or more than $2,500
per act of circumvention, device, product, component, offer,
or performance of service, as the court considers just.
‘‘(B) At any time before final judgment is entered, a