Copy Write Infringement
Copyright Law of the United States of America
and Related Laws Contained in Title 17 of the United States Code
Circular 92
§ 501. Infringement of copyright3
(a) Anyone who violates any of the exclusive rights of the copyright owner
as provided by sections 106 through 121 or of the author as provided in section
106A(a), or who imports copies or phonorecords into the United States in
violation of section 602, is an infringer of the copyright or right of the
author, as the case may be. For purposes of this chapter (other than section
506), any reference to copyright shall be deemed to include the rights conferred
by section 106A(a). As used in this subsection, the term "anyone" includes
any State, any instrumentality of a State, and any officer or employee of
a State or instrumentality of a State acting in his or her official capacity.
Any State, and any such instrumentality, officer, or employee, shall be subject
to the provisions of this title in the same manner and to the same extent
as any nongovernmental entity.
(b) The legal or beneficial owner of an exclusive right under a copyright
is entitled, subject to the requirements of section 411, to institute an
action for any infringement of that particular right committed while he or
she is the owner of it. The court may require such owner to serve written
notice of the action with a copy of the complaint upon any person shown,
by the records of the Copyright Office or otherwise, to have or claim an
interest in the copyright, and shall require that such notice be served upon
any person whose interest is likely to be affected by a decision in the case.
The court may require the joinder, and shall permit the intervention, of
any person having or claiming an interest in the copyright.
(c) For any secondary transmission by a cable system that embodies a performance
or a display of a work which is actionable as an act of infringement under
subsection (c) of section 111, a television broadcast station holding a copyright
or other license to transmit or perform the same version of that work shall,
for purposes of subsection (b) of this section, be treated as a legal or
beneficial owner if such secondary transmission occurs within the local service
area of that television station.
(d) For any secondary transmission by a cable system that is actionable as
an act of infringement pursuant to section 111(c)(3), the following shall
also have standing to sue: (i) the primary transmitter whose transmission
has been altered by the cable system; and (ii) any broadcast station within
whose local service area the secondary transmission occurs.
(e) With respect to any secondary transmission that is made by a satellite
carrier of a performance or display of a work embodied in a primary transmission
and is actionable as an act of infringement under section 119(a)(5), a network
station holding a copyright or other license to transmit or perform the same
version of that work shall, for purposes of subsection (b) of this section,
be treated as a legal or beneficial owner if such secondary transmission
occurs within the local service area of that station.
(f)(1) With respect to any secondary transmission that is made by a satellite
carrier of a performance or display of a work embodied in a primary transmission
and is actionable as an act of infringement under section 122, a television
broadcast station holding a copyright or other license to transmit or perform
the same version of that work shall, for purposes of subsection (b) of this
section, be treated as a legal or beneficial owner if such secondary transmission
occurs within the local market of that station.
(2) A television broadcast station may file a civil action against any satellite
carrier that has refused to carry television broadcast signals, as required
under section 122(a)(2), to enforce that television broadcast station's rights
under section 338(a) of the Communications Act of 1934.
§ 502. Remedies for infringement: Injunctions
(a) Any court having jurisdiction of a civil action arising under this title
may, subject to the provisions of section 1498 of title 28, grant temporary
and final injunctions on such terms as it may deem reasonable to prevent
or restrain infringement of a copyright.
(b) Any such injunction may be served anywhere in the United States on the
person enjoined; it shall be operative throughout the United States and shall
be enforceable, by proceedings in contempt or otherwise, by any United States
court having jurisdiction of that person. The clerk of the court granting
the injunction shall, when requested by any other court in which enforcement
of the injunction is sought, transmit promptly to the other court a certified
copy of all the papers in the case on file in such clerk's office.
§ 503. Remedies for infringement: Impounding and disposition of infringing
articles
(a) At any time while an action under this title is pending, the court may
order the impounding, on such terms as it may deem reasonable, of all copies
or phonorecords claimed to have been made or used in violation of the copyright
owner's exclusive rights, and of all plates, molds, matrices, masters, tapes,
film negatives, or other articles by means of which such copies or phonorecords
may be reproduced.
(b) As part of a final judgment or decree, the court may order the destruction
or other reasonable disposition of all copies or phonorecords found to have
been made or used in violation of the copyright owner's exclusive rights,
and of all plates, molds, matrices, masters, tapes, film negatives, or other
articles by means of which such copies or phonorecords may be reproduced.
§ 504. Remedies for infringement: Damages and profits4
(a) In General.-Except as otherwise provided by this title, an infringer
of copyright is liable for either-
(1) the copyright owner's actual damages and any additional profits of the
infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
(b) Actual Damages and Profits.-The copyright owner is entitled to recover
the actual damages suffered by him or her as a result of the infringement,
and any profits of the infringer that are attributable to the infringement
and are not taken into account in computing the actual damages. In establishing
the infringer's profits, the copyright owner is required to present proof
only of the infringer's gross revenue, and the infringer is required to prove
his or her deductible expenses and the elements of profit attributable to
factors other than the copyrighted work.
(c) Statutory Damages.-
(1) Except as provided by clause (2) of this subsection, the copyright owner
may elect, at any time before final judgment is rendered, to recover, instead
of actual damages and profits, an award of statutory damages for all infringements
involved in the action, with respect to any one work, for which any one infringer
is liable individually, or for which any two or more infringers are liable
jointly and severally, in a sum of not less than $750 or more than $30,000
as the court considers just. For the purposes of this subsection, all the
parts of a compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving, and
the court finds, that infringement was committed willfully, the court in
its discretion may increase the award of statutory damages to a sum of not
more than $150,000. In a case where the infringer sustains the burden of
proving, and the court finds, that such infringer was not aware and had no
reason to believe that his or her acts constituted an infringement of copyright,
the court in its discretion may reduce the award of statutory damages to
a sum of not less than $200. The court shall remit statutory damages in any
case where an infringer believed and had reasonable grounds for believing
that his or her use of the copyrighted work was a fair use under section
107, if the infringer was: (i) an employee or agent of a nonprofit educational
institution, library, or archives acting within the scope of his or her employment
who, or such institution, library, or archives itself, which infringed by
reproducing the work in copies or phonorecords; or (ii) a public broadcasting
entity which or a person who, as a regular part of the nonprofit activities
of a public broadcasting entity (as defined in subsection (g) of section
118) infringed by performing a published nondramatic literary work or by
reproducing a transmission program embodying a performance of such a work.
(d) Additional Damages in Certain Cases.-In any case in which the court finds
that a defendant proprietor of an establishment who claims as a defense that
its activities were exempt under section 110(5) did not have reasonable grounds
to believe that its use of a copyrighted work was exempt under such section,
the plaintiff shall be entitled to, in addition to any award of damages under
this section, an additional award of two times the amount of the license
fee that the proprietor of the establishment concerned should have paid the
plaintiff for such use during the preceding period of up to 3 years.
§ 505. Remedies for infringement: Costs and attorney's fees
In any civil action under this title, the court in its discretion may allow
the recovery of full costs by or against any party other than the United
States or an officer thereof. Except as otherwise provided by this title,
the court may also award a reasonable attorney's fee to the prevailing party
as part of the costs.
§ 506. Criminal offenses5
(a) Criminal Infringement.-Any person who infringes a copyright willfully
either-
(1) for purposes of commercial advantage or private financial gain, or
(2) by the reproduction or distribution, including by electronic means, during
any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted
works, which have a total retail value of more than $1,000,
shall be punished as provided under section 2319 of title 18, United States
Code. For purposes of this subsection, evidence of reproduction or distribution
of a copyrighted work, by itself, shall not be sufficient to establish willful
infringement.
(b) Forfeiture and Destruction.-When any person is convicted of any violation
of subsection (a), the court in its judgment of conviction shall, in addition
to the penalty therein prescribed, order the forfeiture and destruction or
other disposition of all infringing copies or phonorecords and all implements,
devices, or equipment used in the manufacture of such infringing copies or
phonorecords.
(c) Fraudulent Copyright Notice.-Any person who, with fraudulent intent,
places on any article a notice of copyright or words of the same purport
that such person knows to be false, or who, with fraudulent intent, publicly
distributes or imports for public distribution any article bearing such notice
or words that such person knows to be false, shall be fined not more than
$2,500.
(d) Fraudulent Removal of Copyright Notice.-Any person who, with fraudulent
intent, removes or alters any notice of copyright appearing on a copy of
a copyrighted work shall be fined not more than $2,500.
(e) False Representation.-Any person who knowingly makes a false representation
of a material fact in the application for copyright registration provided
for by section 409, or in any written statement filed in connection with
the application, shall be fined not more than $2,500.
(f) Rights of Attribution and Integrity.-Nothing in this section applies
to infringement of the rights conferred by section 106A(a).
§ 507. Limitations on actions6
(a) Criminal Proceedings.-Except as expressly provided otherwise in this
title, no criminal proceeding shall be maintained under the provisions of
this title unless it is commenced within 5 years after the cause of action
arose.
(b) Civil Actions.-No civil action shall be maintained under the provisions
of this title unless it is commenced within three years after the claim accrued.
§ 508. Notification of filing and determination of actions
(a) Within one month after the filing of any action under this title, the
clerks of the courts of the United States shall send written notification
to the Register of Copyrights setting forth, as far as is shown by the papers
filed in the court, the names and addresses of the parties and the title,
author, and registration number of each work involved in the action. If any
other copyrighted work is later included in the action by amendment, answer,
or other pleading, the clerk shall also send a notification concerning it
to the Register within one month after the pleading is filed.
(b) Within one month after any final order or judgment is issued in the case,
the clerk of the court shall notify the Register of it, sending with the
notification a copy of the order or judgment together with the written opinion,
if any, of the court.
(c) Upon receiving the notifications specified in this section, the Register
shall make them a part of the public records of the Copyright Office.
§ 509. Seizure and forfeiture
(a) All copies or phonorecords manufactured, reproduced, distributed, sold,
or otherwise used, intended for use, or possessed with intent to use in violation
of section 506 (a), and all plates, molds, matrices, masters, tapes, film
negatives, or other articles by means of which such copies or phonorecords
may be reproduced, and all electronic, mechanical, or other devices for manufacturing,
reproducing, or assembling such copies or phonorecords may be seized and
forfeited to the United States.
(b) The applicable procedures relating to
(i) the seizure, summary and judicial forfeiture, and condemnation of vessels,
vehicles, merchandise, and baggage for violations of the customs laws contained
in title 19,
(ii) the disposition of such vessels, vehicles, merchandise, and baggage
or the proceeds from the sale thereof,
(iii) the remission or mitigation of such forfeiture,
(iv) the compromise of claims, and
(v) the award of compensation to informers in respect of such forfeitures,
shall apply to seizures and forfeitures incurred, or alleged to have been
incurred, under the provisions of this section, insofar as applicable and
not inconsistent with the provisions of this section; except that such duties
as are imposed upon any officer or employee of the Treasury Department or
any other person with respect to the seizure and forfeiture of vessels, vehicles,
merchandise, and baggage under the provisions of the customs laws contained
in title 19 shall be performed with respect to seizure and forfeiture of
all articles described in subsection (a) by such officers, agents, or other
persons as may be authorized or designated for that purpose by the Attorney
General.
§ 510. Remedies for alteration of programming by cable systems7
(a) In any action filed pursuant to section 111(c)(3), the following remedies
shall be available:
(1) Where an action is brought by a party identified in subsections (b) or
(c) of section 501, the remedies provided by sections 502 through 505, and
the remedy provided by subsection (b) of this section; and
(2) When an action is brought by a party identified in subsection (d) of
section 501, the remedies provided by sections 502 and 505, together with
any actual damages suffered by such party as a result of the infringement,
and the remedy provided by subsection (b) of this section.
(b) In any action filed pursuant to section 111(c)(3), the court may decree
that, for a period not to exceed thirty days, the cable system shall be deprived
of the benefit of a statutory license for one or more distant signals carried
by such cable system.
§ 511. Liability of States, instrumentalities of States, and State officials
for infringement of copyright8
(a) In General.-Any State, any instrumentality of a State, and any officer
or employee of a State or instrumentality of a State acting in his or her
official capacity, shall not be immune, under the Eleventh Amendment of the
Constitution of the United States or under any other doctrine of sovereign
immunity, from suit in Federal Court by any person, including any governmental
or nongovernmental entity, for a violation of any of the exclusive rights
of a copyright owner provided by sections 106 through 121, for importing
copies of phonorecords in violation of section 602, or for any other violation
under this title.
(b) Remedies.-In a suit described in subsection (a) for a violation described
in that subsection, remedies (including remedies both at law and in equity)
are available for the violation to the same extent as such remedies are available
for such a violation in a suit against any public or private entity other
than a State, instrumentality of a State, or officer or employee of a State
acting in his or her official capacity. Such remedies include impounding
and disposition of infringing articles under section 503, actual damages
and profits and statutory damages under section 504, costs and attorney's
fees under section 505, and the remedies provided in section 510.
§ 512. Limitations on liability relating to material online9
(a) Transitory Digital Network Communications.-A service provider shall not
be liable for monetary relief, or, except as provided in subsection (j),
for injunctive or other equitable relief, for infringement of copyright by
reason of the provider's transmitting, routing, or providing connections
for, material through a system or network controlled or operated by or for
the service provider, or by reason of the intermediate and transient storage
of that material in the course of such transmitting, routing, or providing
connections, if-
(1) the transmission of the material was initiated by or at the direction
of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried
out through an automatic technical process without selection of the material
by the service provider;
(3) the service provider does not select the recipients of the material except
as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of
such intermediate or transient storage is maintained on the system or network
in a manner ordinarily accessible to anyone other than anticipated recipients,
and no such copy is maintained on the system or network in a manner ordinarily
accessible to such anticipated recipients for a longer period than is reasonably
necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification
of its content.
(b) System Caching.-
(1) Limitation on Liability.-A service provider shall not be liable for monetary
relief, or, except as provided in subsection (j), for injunctive or other
equitable relief, for infringement of copyright by reason of the intermediate
and temporary storage of material on a system or network controlled or operated
by or for the service provider in a case in which-
(A) the material is made available online by a person other than the service
provider;
(B) the material is transmitted from the person described in subparagraph
(A) through the system or network to a person other than the person described
in subparagraph (A) at the direction of that other person; and
(C) the storage is carried out through an automatic technical process for
the purpose of making the material available to users of the system or network
who, after the material is transmitted as described in subparagraph (B),
request access to the material from the person described in subparagraph
(A), if the conditions set forth in paragraph (2) are met.
(2) Conditions.-The conditions referred to in paragraph (1) are that-
(A) the material described in paragraph (1) is transmitted to the subsequent
users described in paragraph (1)(C) without modification to its content from
the manner in which the material was transmitted from the person described
in paragraph (1)(A);
(B) the service provider described in paragraph (1) complies with rules concerning
the refreshing, reloading, or other updating of the material when specified
by the person making the material available online in accordance with a generally
accepted industry standard data communications protocol for the system or
network through which that person makes the material available, except that
this subparagraph applies only if those rules are not used by the person
described in paragraph (1)(A) to prevent or unreasonably impair the intermediate
storage to which this subsection applies;
(C) the service provider does not interfere with the ability of technology
associated with the material to return to the person described in paragraph
(1)(A) the information that would have been available to that person if the
material had been obtained by the subsequent users described in paragraph
(1)(C) directly from that person, except that this subparagraph applies only
if that technology-
(i) does not significantly interfere with the performance of the provider's
system or network or with the intermediate storage of the material;
(ii) is consistent with generally accepted industry standard communications
protocols; and
(iii) does not extract information from the provider's system or network
other than the information that would have been available to the person described
in paragraph (1)(A) if the subsequent users had gained access to the material
directly from that person;
(D) if the person described in paragraph (1)(A) has in effect a condition
that a person must meet prior to having access to the material, such as a
condition based on payment of a fee or provision of a password or other information,
the service provider permits access to the stored material in significant
part only to users of its system or network that have met those conditions
and only in accordance with those conditions; and
(E) if the person described in paragraph (1)(A) makes that material available
online without the authorization of the copyright owner of the material,
the service provider responds expeditiously to remove, or disable access
to, the material that is claimed to be infringing upon notification of claimed
infringement as described in subsection (c)(3), except that this subparagraph
applies only if-
(i) the material has previously been removed from the originating site or
access to it has been disabled, or a court has ordered that the material
be removed from the originating site or that access to the material on the
originating site be disabled; and
(ii) the party giving the notification includes in the notification a statement
confirming that the material has been removed from the originating site or
access to it has been disabled or that a court has ordered that the material
be removed from the originating site or that access to the material on the
originating site be disabled.
(c) Information Residing on Systems or Networks at Direction of Users.-
(1) In General.-A service provider shall not be liable for monetary relief,
or, except as provided in subsection (j), for injunctive or other equitable
relief, for infringement of copyright by reason of the storage at the direction
of a user of material that resides on a system or network controlled or operated
by or for the service provider, if the service provider-
(A)(i) does not have actual knowledge that the material or an activity using
the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances
from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove,
or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing
activity, in a case in which the service provider has the right and ability
to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3),
responds expeditiously to remove, or disable access to, the material that
is claimed to be infringing or to be the subject of infringing activity.
(2) Designated Agent.-The limitations on liability established in this subsection
apply to a service provider only if the service provider has designated an
agent to receive notifications of claimed infringement described in paragraph
(3), by making available through its service, including on its website in
a location accessible to the public, and by providing to the Copyright Office,
substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The Register of Copyrights shall maintain a current directory of agents available
to the public for inspection, including through the Internet, in both electronic
and hard copy formats, and may require payment of a fee by service providers
to cover the costs of maintaining the directory.
(3) Elements of Notification.-
(A) To be effective under this subsection, a notification of claimed infringement
must be a written communication provided to the designated agent of a service
provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed,
or, if multiple copyrighted works at a single online site are covered by
a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or
to be the subject of infringing activity and that is to be removed or access
to which is to be disabled, and information reasonably sufficient to permit
the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to
contact the complaining party, such as an address, telephone number, and,
if available, an electronic mail address at which the complaining party may
be contacted.
(v) A statement that the complaining party has a good faith belief that use
of the material in the manner complained of is not authorized by the copyright
owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and
under penalty of perjury, that the complaining party is authorized to act
on behalf of the owner of an exclusive right that is allegedly infringed.
(B)(i) Subject to clause (ii), a notification from a copyright owner or from
a person authorized to act on behalf of the copyright owner that fails to
comply substantially with the provisions of subparagraph (A) shall not be
considered under paragraph (1)(A) in determining whether a service provider
has actual knowledge or is aware of facts or circumstances from which infringing
activity is apparent.
(ii) In a case in which the notification that is provided to the service
provider's designated agent fails to comply substantially with all the provisions
of subparagraph (A) but substantially complies with clauses (ii), (iii),
and (iv) of subparagraph (A), clause (i) of this subparagraph applies only
if the service provider promptly attempts to contact the person making the
notification or takes other reasonable steps to assist in the receipt of
notification that substantially complies with all the provisions of subparagraph
(A).
(d) Information Location Tools.-A service provider shall not be liable for
monetary relief, or, except as provided in subsection (j), for injunctive
or other equitable relief, for infringement of copyright by reason of the
provider referring or linking users to an online location containing infringing
material or infringing activity, by using information location tools, including
a directory, index, reference, pointer, or hypertext link, if the service
provider-
(1)(A) does not have actual knowledge that the material or activity is infringing;
(B) in the absence of such actual knowledge, is not aware of facts or circumstances
from which infringing activity is apparent; or
(C) upon obtaining such knowledge or awareness, acts expeditiously to remove,
or disable access to, the material;
(2) does not receive a financial benefit directly attributable to the infringing
activity, in a case in which the service provider has the right and ability
to control such activity; and
(3) upon notification of claimed infringement as described in subsection
(c)(3), responds expeditiously to remove, or disable access to, the material
that is claimed to be infringing or to be the subject of infringing activity,
except that, for purposes of this paragraph, the information described in
subsection (c)(3)(A)(iii) shall be identification of the reference or link,
to material or activity claimed to be infringing, that is to be removed or
access to which is to be disabled, and information reasonably sufficient
to permit the service provider to locate that reference or link.
(e) Limitation on Liability of Nonprofit Educational Institutions.- (1) When
a public or other nonprofit institution of higher education is a service
provider, and when a faculty member or graduate student who is an employee
of such institution is performing a teaching or research function, for the
purposes of subsections (a) and (b) such faculty member or graduate student
shall be considered to be a person other than the institution, and for the
purposes of subsections (c) and (d) such faculty member's or graduate student's
knowledge or awareness of his or her infringing activities shall not be attributed
to the institution, if-
(A) such faculty member's or graduate student's infringing activities do
not involve the provision of online access to instructional materials that
are or were required or recommended, within the preceding 3-year period,
for a course taught at the institution by such faculty member or graduate
student;
(B) the institution has not, within the preceding 3-year period, received
more than 2 notifications described in subsection (c)(3) of claimed infringement
by such faculty member or graduate student, and such notifications of claimed
infringement were not actionable under subsection (f); and
(C) the institution provides to all users of its system or network informational
materials that accurately describe, and promote compliance with, the laws
of the United States relating to copyright.
(2) For the purposes of this subsection, the limitations on injunctive relief
contained in subsections (j)(2) and (j)(3), but not those in (j)(1), shall
apply.
(f) Misrepresentations.-Any person who knowingly materially misrepresents
under this section-
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys' fees, incurred
by the alleged infringer, by any copyright owner or copyright owner's authorized
licensee, or by a service provider, who is injured by such misrepresentation,
as the result of the service provider relying upon such misrepresentation
in removing or disabling access to the material or activity claimed to be
infringing, or in replacing the removed material or ceasing to disable access
to it.
(g) Replacement of Removed or Disabled Material and Limitation on Other Liability.-
(1) No Liability for Taking Down Generally.-Subject to paragraph (2), a service
provider shall not be liable to any person for any claim based on the service
provider's good faith disabling of access to, or removal of, material or
activity claimed to be infringing or based on facts or circumstances from
which infringing activity is apparent, regardless of whether the material
or activity is ultimately determined to be infringing.
(2) Exception.-Paragraph (1) shall not apply with respect to material residing
at the direction of a subscriber of the service provider on a system or network
controlled or operated by or for the service provider that is removed, or
to which access is disabled by the service provider, pursuant to a notice
provided under subsection (c)(1)(C), unless the service provider-
(A) takes reasonable steps promptly to notify the subscriber that it has
removed or disabled access to the material;
(B) upon receipt of a counter notification described in paragraph (3), promptly
provides the person who provided the notification under subsection (c)(1)(C)
with a copy of the counter notification, and informs that person that it
will re-place the removed material or cease disabling access to it in 10
business days; and
(C) replaces the removed material and ceases disabling access to it not less
than 10, nor more than 14, business days following receipt of the counter
notice, unless its designated agent first receives notice from the person
who submitted the notification under subsection (c)(1)(C) that such person
has filed an action seeking a court order to restrain the subscriber from
engaging in infringing activity relating to the material on the service provider's
system or network.
(3) Contents of Counter Notification.-To be effective under this subsection,
a counter notification must be a written communication provided to the service
provider's designated agent that includes substantially the following:
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or to which access
has been disabled and the location at which the material appeared before
it was removed or access to it was disabled.
(C) A statement under penalty of perjury that the subscriber has a good faith
belief that the material was removed or disabled as a result of mistake or
misidentification of the material to be removed or disabled.
(D) The subscriber's name, address, and telephone number, and a statement
that the subscriber consents to the jurisdiction of Federal District Court
for the judicial district in which the address is located, or if the subscriber's
address is outside of the United States, for any judicial district in which
the service provider may be found, and that the subscriber will accept service
of process from the person who provided notification under subsection (c)(1)(C)
or an agent of such person.
(4) Limitation on Other Liability.-A service provider's compliance with paragraph
(2) shall not subject the service provider to liability for copyright infringement
with respect to the material identified in the notice provided under subsection
(c)(1)(C).
(h) Subpoena to Identify Infringer.-
(1) Request.-A copyright owner or a person authorized to act on the owner's
behalf may request the clerk of any United States district court to issue
a subpoena to a service provider for identification of an alleged infringer
in accordance with this subsection.
(2) Contents of Request-The request may be made by filing with the clerk-
(A) a copy of a notification described in subsection (c)(3)(A);
(B) a proposed subpoena; and
(C) a sworn declaration to the effect that the purpose for which the subpoena
is sought is to obtain the identity of an alleged infringer and that such
information will only be used for the purpose of protecting rights under
this title.
(3) Contents of Subpoena.-The subpoena shall authorize and order the service
provider receiving the notification and the subpoena to expeditiously disclose
to the copyright owner or person authorized by the copyright owner information
sufficient to identify the alleged infringer of the material described in
the notification to the extent such information is available to the service
provider.
(4) Basis for Granting Subpoena.-If the notification filed satisfies the
provisions of subsection (c)(3)(A), the proposed subpoena is in proper form,
and the accompanying declaration is properly executed, the clerk shall expeditiously
issue and sign the proposed subpoena and return it to the requester for delivery
to the service provider.
(5) Actions of Service Provider Receiving Subpoena.- Upon receipt of the
issued subpoena, either accompanying or subsequent to the receipt of a notification
described in subsection (c)(3)(A), the service provider shall expeditiously
disclose to the copyright owner or person authorized by the copyright owner
the information required by the subpoena, notwithstanding any other provision
of law and regardless of whether the service provider responds to the notification.
(6) Rules Applicable to Subpoena.-Unless otherwise provided by this section
or by applicable rules of the court, the procedure for issuance and delivery
of the subpoena, and the remedies for noncompliance with the subpoena, shall
be governed to the greatest extent practicable by those provisions of the
Federal Rules of Civil Procedure governing the issuance, service, and enforcement
of a subpoena duces tecum.
(i) Conditions for Eligibility.-
(1) Accommodation of Technology.-The limitations on liability established
by this section shall apply to a service provider only if the service provider-
(A) has adopted and reasonably implemented, and informs subscribers and account
holders of the service provider's system or network of, a policy that provides
for the termination in appropriate circumstances of subscribers and account
holders of the service provider's system or network who are repeat infringers;
and
(B) accommodates and does not interfere with standard technical measures.
(2) Definition.-As used in this subsection, the term "standard technical
measures" means technical measures that are used by copyright owners to identify
or protect copyrighted works and-
(A) have been developed pursuant to a broad consensus of copyright owners
and service providers in an open, fair, voluntary, multi-industry standards
process;
(B) are available to any person on reasonable and nondiscriminatory terms;
and
(C) do not impose substantial costs on service providers or substantial burdens
on their systems or networks.
(j) Injunctions.-The following rules shall apply in the case of any application
for an injunction under section 502 against a service provider that is not
subject to monetary remedies under this section:
(1) Scope of Relief.-(A) With respect to conduct other than that which qualifies
for the limitation on remedies set forth in subsection (a), the court may
grant injunctive relief with respect to a service provider only in one or
more of the following forms:
(i) An order restraining the service provider from providing access to infringing
material or activity residing at a particular online site on the provider's
system or network.
(ii) An order restraining the service provider from providing access to a
subscriber or account holder of the service provider's system or network
who is engaging in infringing activity and is identified in the order, by
terminating the accounts of the subscriber or account holder that are specified
in the order.
(iii) Such other injunctive relief as the court may consider necessary to
prevent or restrain infringement of copyrighted material specified in the
order of the court at a particular online location, if such relief is the
least burdensome to the service provider among the forms of relief comparably
effective for that purpose.
(B) If the service provider qualifies for the limitation on remedies described
in subsection (a), the court may only grant injunctive relief in one or both
of the following forms:
(i) An order restraining the service provider from providing access to a
subscriber or account holder of the service provider's system or network
who is using the provider's service to engage in infringing activity and
is identified in the order, by terminating the accounts of the subscriber
or account holder that are specified in the order.
(ii) An order restraining the service provider from providing access, by
taking reasonable steps specified in the order to block access, to a specific,
identified, online location outside the United States.
(2) Considerations.-The court, in considering the relevant criteria for injunctive
relief under applicable law, shall consider-
(A) whether such an injunction, either alone or in combination with other
such injunctions issued against the same service provider under this subsection,
would significantly burden either the provider or the operation of the provider's
system or network;
(B) the magnitude of the harm likely to be suffered by the copyright owner
in the digital network environment if steps are not taken to prevent or restrain
the infringement;
(C) whether implementation of such an injunction would be technically feasible
and effective, and would not interfere with access to noninfringing material
at other online locations; and
(D) whether other less burdensome and comparably effective means of preventing
or restraining access to the infringing material are available.
(3) Notice and Ex Parte Orders.-Injunctive relief under this subsection shall
be available only after notice to the service provider and an opportunity
for the service provider to appear are provided, except for orders ensuring
the preservation of evidence or other orders having no material adverse effect
on the operation of the service provider's communications network.
(k) Definitions.-
(1) Service Provider.-(A) As used in subsection (a), the term "service provider"
means an entity offering the transmission, routing, or providing of connections
for digital online communications, between or among points specified by a
user, of material of the user's choosing, without modification to the content
of the material as sent or received.
(B) As used in this section, other than subsection (a), the term "service
provider" means a provider of online services or network access, or the operator
of facilities therefor, and includes an entity described in subparagraph
(A).
(2) Monetary Relief.-As used in this section, the term "monetary relief"
means damages, costs, attorneys' fees, and any other form of monetary payment.
(l) Other Defenses Not Affected.-The failure of a service provider's conduct
to qualify for limitation of liability under this section shall not bear
adversely upon the consideration of a defense by the service provider that
the service provider's conduct is not infringing under this title or any
other defense.
(m) Protection of Privacy.-Nothing in this section shall be construed to
condition the applicability of subsections (a) through (d) on-
(1) a service provider monitoring its service or affirmatively seeking facts
indicating infringing activity, except to the extent consistent with a standard
technical measure complying with the provisions of subsection (i); or
(2) a service provider gaining access to, removing, or disabling access to
material in cases in which such conduct is prohibited by law.
(n) Construction.-Subsections (a), (b), (c), and (d) describe separate and
distinct functions for purposes of applying this section. Whether a service
provider qualifies for the limitation on liability in any one of those subsections
shall be based solely on the criteria in that subsection, and shall not affect
a determination of whether that service provider qualifies for the limitations
on liability under any other such subsection.
§ 513. Determination of reasonable license fees for individual proprietors10
In the case of any performing rights society subject to a consent decree
which provides for the determination of reasonable license rates or fees
to be charged by the performing rights society, notwithstanding the provisions
of that consent decree, an individual proprietor who owns or operates fewer
than 7 non-publicly traded establishments in which nondramatic musical works
are performed publicly and who claims that any license agreement offered
by that performing rights society is unreasonable in its license rate or
fee as to that individual proprietor, shall be entitled to determination
of a reasonable license rate or fee as follows:
(1) The individual proprietor may commence such proceeding for determination
of a reasonable license rate or fee by filing an application in the applicable
district court under paragraph (2) that a rate disagreement exists and by
serving a copy of the application on the performing rights society. Such
proceeding shall commence in the applicable district court within 90 days
after the service of such copy, except that such 90-day requirement shall
be subject to the administrative requirements of the court.
(2) The proceeding under paragraph (1) shall be held, at the individual proprietor's
election, in the judicial district of the district court with jurisdiction
over the applicable consent decree or in that place of holding court of a
district court that is the seat of the Federal circuit (other than the Court
of Appeals for the Federal Circuit) in which the proprietor's establishment
is located.
(3) Such proceeding shall be held before the judge of the court with jurisdiction
over the consent decree governing the performing rights society. At the discretion
of the court, the proceeding shall be held before a special master or magistrate
judge appointed by such judge. Should that consent decree provide for the
appointment of an advisor or advisors to the court for any purpose, any such
advisor shall be the special master so named by the court.
(4) In any such proceeding, the industry rate shall be presumed to have been
reasonable at the time it was agreed to or determined by the court. Such
presumption shall in no way affect a determination of whether the rate is
being correctly applied to the individual proprietor.
(5) Pending the completion of such proceeding, the individual proprietor
shall have the right to perform publicly the copyrighted musical compositions
in the repertoire of the performing rights society by paying an interim license
rate or fee into an interest bearing escrow account with the clerk of the
court, subject to retroactive adjustment when a final rate or fee has been
determined, in an amount equal to the industry rate, or, in the absence of
an industry rate, the amount of the most recent license rate or fee agreed
to by the parties.
(6) Any decision rendered in such proceeding by a special master or magistrate
judge named under paragraph (3) shall be reviewed by the judge of the court
with jurisdiction over the consent decree governing the performing rights
society. Such proceeding, including such review, shall be concluded within
6 months after its commencement.
(7) Any such final determination shall be binding only as to the individual
proprietor commencing the proceeding, and shall not be applicable to any
other proprietor or any other performing rights society, and the performing
rights society shall be relieved of any obligation of nondiscrimination among
similarly situated music users that may be imposed by the consent decree
governing its operations.
(8) An individual proprietor may not bring more than one proceeding provided
for in this section for the determination of a reasonable license rate or
fee under any license agreement with respect to any one performing rights
society.
(9) For purposes of this section, the term "industry rate" means the license
fee a performing rights society has agreed to with, or which has been determined
by the court for, a significant segment of the music user industry to which
the individual proprietor belongs.
Chapter 5 Endnotes
1Concerning the liability of the United States Government for copyright infringement,
see 28 U.S.C. 1498. Title 28 of the United States Code is entitled "Judiciary
and Judicial Procedure."
2In 1998, two sections 512 were enacted into law. On October 17, 1998, the
Fairness in Music Licensing Act of 1998 was enacted. This Act amended chapter
five to add section 512 entitled "Determination of reasonable license fees
for individual proprietors." Pub. L. No. 105-298, 112 Stat. 2827, 2831. On
October 28, 1998, the Online Copyright Infringement Liability Limitation
Act was enacted. This Act amended chapter five to add section 512 entitled
"Limitations on liability relating to material online." Pub. L. No. 105-304,
112 Stat. 2860, 2877. In 1999, a technical correction was enacted to redesignate
the section 512 that was entitled "Determination of reasonable license fees
for individual proprietors" as section 513. Also, the table of sections was
amended to reflect that change. Pub. L. No. 106-44, 113 Stat. 221. See also
endnote 10, infra.
3The Berne Convention Implementation Act of 1988 amended section 501(b) by
striking out "sections 205(d) and 411" and inserting in lieu thereof "section
411." Pub. L. No. 100-568, 102 Stat. 2853, 2860. The Satellite Home Viewer
Act of 1988 amended section 501 by adding subsection (e). Pub. L. No. 100-667,
102 Stat. 3935, 3957.
In 1990, the Copyright Remedy Clarification Act amended section 501(a) by
adding the last two sentences. Pub. L. No. 101-553, 104 Stat. 2749. The Visual
Artists Rights Act of 1990 also amended section 501(a) as follows: 1) by
inserting "or of the author as provided in section 106A(a)" after "118" and
2) by striking out "copyright." and inserting in lieu thereof "copyright
or right of the author, as the case may be. For purposes of this chapter
(other than section 506), any reference to copyright shall be deemed to include
the rights conferred by section 106A(a)." Pub. L. No. 101-650, 104 Stat.
5089, 5131.
In 1999, a technical correction amended the first sentence in subsection
501(a) by inserting "121" in lieu of "118." Pub. L. No. 106-44, 113 Stat.
221, 222. The Satellite Home Viewer Improvement Act of 1999 amended section
501 by adding a subsection (f) and, in subsection (e), by inserting "performance
or display of a work embodied in a primary transmission" in lieu of "primary
transmission embodying the performance or display of a work." Pub. L. No.
106-113, 113 Stat. 1501, app. I at 1501A-527 and 544. The Satellite Home
Viewer Improvement Act of 1999 states that section 501(f) shall be effective
as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544.
4The Berne Convention Implementation Act of 1988 amended section 504(c) as
follows: 1) in paragraph (1), by inserting "$500" in lieu of "$250" and by
inserting "$20,000" in lieu of "$10,000" and 2) in paragraph (2), by inserting
"$100,000" in lieu of "$50,000" and by inserting "$200" in lieu of "$100."
Pub. L. No. 100-568, 102 Stat. 2853, 2860. The Digital Theft Deterrence and
Copyright Damages Improvement Act of 1999 amended section 504(c), in paragraph
(1), by substituting "$750" for "$500" and "$30,000" for "$20,000" and, in
paragraph (2), by substituting "$150,000" for "$100,000." Pub. L. No. 106-160,
113 Stat. 1774.
5The Piracy and Counterfeiting Amendments Act of 1982 amended section 506
by substituting a new subsection(a). Pub. L. No. 97-180, 96 Stat. 91, 93.
The Visual Artists Rights Act of 1990 amended section 506 by adding subsection
(f). Pub. L. No.101-650, 104 Stat. 5089, 5131. In 1997, the No Electronic
Theft (NET) Act again amended section 506 by amending subsection (a) in its
entirety. Pub. L. No. 105-147, 111 Stat. 2678. That Act also directed the
United States Sentencing Commission to "ensure that the applicable guideline
range for a defendant convicted of a crime against intellectual property
. . . is sufficiently stringent to deter such a crime" and to "ensure that
the guidelines provide for consideration of the retail value and quantity
of the items with respect to which the crime against intellectual property
was committed." Pub. L. No. 105-147, 111 Stat. 2678, 2680. See also endnote
2 in Part VII of the Appendix.
6In 1997, the No Electronic Theft (NET) Act amended section 507(a) by inserting
"5" in lieu of "three." Pub. L. No. 105-147, 111 Stat. 2678.
7The Satellite Home Viewer Improvement Act of 1999 amended the heading for
section 510 by substituting "programming" for "programing" and, in subsection
(b), by substituting "statutory" for "compulsory." Pub. L. No. 106-113, 113
Stat. 1501, app. I at 1501A-543.
8In 1990, the Copyright Remedy Clarification Act added section 511. Pub.
L. No. 101-553, 104 Stat. 2749. In 1999, a technical correction amended subsection
511(a) by inserting "121" in lieu of "119." Pub. L. No. 106-44, 113 Stat.
221, 222.
9In 1998, the Online Copyright Infringement Liability Limitation Act added
section 512. Pub. L. No. 105-304, 112 Stat. 2860, 2877. In 1999, a technical
correction deleted the heading for paragraph (2) of section 512(e), which
was "Injunctions." Pub. L. No. 106-44, 113 Stat. 221, 222.
10The Fairness in Music Licensing Act of 1998 added section 513. Pub. L.
No. 105-298, 112 Stat. 2827, 2831. This section was originally designated
as section 512. However, because two sections 512 had been enacted into law
in 1998, a technical amendment redesignated this as section 513. Pub. L.
No. 106-44, 113 Stat. 221. See also endnote 2, supra.
08-Aug-2001