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Copyright Law of the United States of America by The US Copyright Office

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reproduction of a particular musical work in a sound recording.

(10) A "professional model product" is an audio recording device that is
designed, manufactured, marketed, and intended for use by recording
professionals in the ordinary course of a lawful business, in accordance
with such requirements as the Secretary of Commerce shall establish by
regulation.

(11) The term "serial copying" means the duplication in a digital format
of a copyrighted musical work or sound recording from a digital
reproduction of a digital musical recording. The term "digital
reproduction of a digital musical recording" does not include a digital
musical recording as distributed, by authority of the copyright owner,
for ultimate sale to consumers.

(12) The "transfer price" of a digital audio recording device or a
digital audio recording medium-

(A) is, subject to subparagraph (B)-

(i) in the case of an imported product, the actual entered value at
United States Customs (exclusive of any freight, insurance, and
applicable duty), and

(ii) in the case of a domestic product, the manufacturer's transfer
price (FOB the manufacturer, and exclusive of any direct sales taxes or
excise taxes incurred in connection with the sale); and

(B) shall, in a case in which the transferor and transferee are related
entities or within a single entity, not be less than a reasonable arms-
length price under the principles of the regulations adopted pursuant to
section 482 of the Internal Revenue Code of 1986, or any successor
provision to such section.

(13) A "writer" is the composer or lyricist of a particular musical
work.

Subchapter B-Copying Controls

Section 1002. Incorporation of copying controls

(a) Prohibition on Importation, Manufacture, and Distribution. No person
shall import, manufacture, or distribute any digital audio recording
device or digital audio interface device that does not conform to-

(1) the Serial Copy Management System;

(2) a system that has the same functional characteristics as the Serial
Copy Management System and requires that copyright and generation status
information be accurately sent, received, and acted upon between devices
using the system's method of serial copying regulation and devices using
the Serial Copy Management System; or

(3) any other system certified by the Secretary of Commerce as
prohibiting unauthorized serial copying.

(b) Development of Verification Procedure. The Secretary of Commerce
shall establish a procedure to verify, upon the petition of an
interested party, that a system meets the standards set forth in
subsection (a)(2).

(c) Prohibition on Circumvention of the System. No person shall import,
manufacture, or distribute any device, or offer or perform any service,
the primary purpose or effect of which is to avoid, bypass, remove,
deactivate, or otherwise circumvent any program or circuit which
implements, in whole or in part, a system described in subsection (a).

(d) Encoding of Information on Digital Musical Recordings.

(1) Prohibition on encoding inaccurate information. No person shall
encode a digital musical recording of a sound recording with inaccurate
information relating to the category code, copyright status, or
generation status of the source material for the recording.

(2) Encoding of copyright status not required. Nothing in this chapter
requires any person engaged in the importation or manufacture of digital
musical recordings to encode any such digital musical recording with
respect to its copyright status.

(e) Information Accompanying Transmission in Digital Format. Any person
who transmits or otherwise communicates to the public any sound
recording in digital format is not required under this chapter to
transmit or otherwise communicate the information relating to the
copyright status of the sound recording. Any such person who does
transmit or otherwise communicate such copyright status information
shall transmit or communicate such information accurately.

Subchapter C Royalty Payments

Section 1003. Obligation to make royalty payments

(a) Prohibition on Importation and Manufacture. No person shall import
into and distribute, or manufacture and distribute, any digital audio
recording device or digital audio recording medium unless such person
records the notice specified by this section and subsequently deposits
the statements of account and applicable royalty payments for such
device or medium specified in section 1004.

(b) Filing of Notice. The importer or manufacturer of any digital audio
recording device or digital audio recording medium, within a product
category or utilizing a technology with respect to which such
manufacturer or importer has not previously filed a notice under this
subsection, shall file with the Register of Copyrights a notice with
respect to such device or medium, in such form and content as the
Register shall prescribe by regulation.

(c) Filing of Quarterly and Annual Statements of Account.

(1) Generally. Any importer or manufacturer that distributes any digital
audio recording device or digital audio recording medium that it
manufactured or imported shall file with the Register of Copyrights, in
such form and content as the Register shall prescribe by -regulation,
such quarterly and annual statements of account with respect to such
distribution as the Register shall prescribe by regulation.

(2) Certification, verification, and confidentiality. Each such
statement shall be certified as accurate by an authorized officer or
principal of the importer or manufacturer. The Register shall issue
regulations to provide for the verification and audit of such statements
and to protect the confidentiality of the information contained in such
statements. Such regulations shall provide for the disclosure, in
confidence, of such statements to interested copyright parties.

(3) Royalty Payments. Each such statement shall be accompanied by the
royalty payments specified in section 1004.

Section 1004. Royalty payments [2]

(a) Digital Audio Recording Devices.

(1) Amount of payment. The royalty payment due under section 1003 for
each digital audio recording device imported into and distributed in the
United States, or manufactured and distributed in the United States,
shall be 2 percent of the transfer price. Only the first person to
manufacture and distribute or import and distribute such device shall be
required to pay the royalty with respect to such device.

(2) Calculation for devices distributed with other devices. With respect
to a digital audio recording device first distributed in combination
with one or more devices, either as a physically integrated unit or as
separate components, the royalty payment shall be calculated as follows:

(A) If the digital audio recording device and such other devices are
part of a physically integrated unit, the royalty payment shall be based
on the transfer price of the unit, but shall be reduced by any royalty
payment made on any digital audio recording device included within the
unit that was not first distributed in combination with the unit.

(B) If the digital audio recording device is not part of a physically
integrated unit and substantially similar devices have been distributed
separately at any time during the preceding 4 calendar quarters, the
royalty payment shall be based on the average transfer price of such
devices during those 4 quarters.

(C) If the digital audio recording device is not part of a physically
integrated unit and substantially similar devices have not been
distributed separately at any time during the preceding 4 calendar
quarters, the royalty payment shall be based on a constructed price
reflecting the proportional value of such device to the combination as a
whole.

(3) Limits on royalties. Notwithstanding paragraph (1) or (2), the
amount of the royalty payment for each digital audio recording device
shall not be less than $1 nor more than the royalty maximum. The royalty
maximum shall be $8 per device, except that in the case of a physically
integrated unit containing more than 1 digital audio recording device,
the royalty maximum for such unit shall be $12. During the 6th year
after the effective date of this chapter, and not more than once each
year thereafter, any interested copyright party may petition the
Librarian of Congress to increase the royalty maximum and, if more than
20 percent of the royalty payments are at the relevant royalty maximum,
the Librarian of Congress shall prospectively increase such royalty
maximum with the goal of having no more than 10 percent of such payments
at the new royalty maximum; however the amount of any such increase as a
percentage of the royalty maximum shall in no event exceed the
percentage increase in the Consumer Price Index during the period under
review.

(b) Digital Audio Recording Media. The royalty payment due under section
1003 for each digital audio recording medium imported into and
distributed in the United States, or manufactured and distributed in the
United States, shall be 3 percent of the transfer price. Only the first
person to manufacture and distribute or import and distribute such
medium shall be required to pay the royalty with respect to such medium.

Section 1005. Deposit of royalty payments and deduction of expenses [3]

The Register of Copyrights shall receive all royalty payments deposited
under this chapter and, after deducting the reasonable costs incurred by
the Copyright Office under this chapter, shall deposit the balance in
the Treasury of the United States as offsetting receipts, in such manner
as the Secretary of the Treasury directs. All funds held by the
Secretary of the Treasury shall be invested in interest-bearing United
States securities for later distribution with interest under section
1007. The Register may, in the Register's discretion, 4 years after the
close of any calendar year, close out the royalty payments account for
that calendar year, and may treat any funds remaining in such account
and any subsequent deposits that would otherwise be attributable to that
calendar year as attributable to the succeeding calendar year.

Section 1006. Entitlement to royalty payments [4]

(a) Interested Copyright Parties. The royalty payments deposited
pursuant to section 1005 shall, in accordance with the procedures
specified in section 1007, be distributed to any interested copyright
party-

(1) whose musical work or sound recording has been-

(A) embodied in a digital musical recording or an analog musical
recording lawfully made under this title that has been distributed, and

(B) distributed in the form of digital musical recordings or analog
musical recordings or disseminated to the public in transmissions,
during the period to which such payments pertain; and

(2) who has filed a claim under section 1007.

(b) Allocation of Royalty Payments to Groups. The royalty payments shall
be divided into 2 funds as follows:

(1) The sound recordings fund. 66 2/3 percent of the royalty payments
shall be allocated to the Sound Recordings Fund. 2 5/8 percent of the
royalty payments allocated to the Sound Recordings Fund shall be placed
in an escrow account managed by an independent administrator jointly
appointed by the interested copyright parties described in section
1001(7)(A) and the American Federation of Musicians (or any successor
entity) to be distributed to nonfeatured musicians (whether or not
members of the American Federation of Musicians or any successor entity)
who have performed on sound recordings distributed in the United States.
1 3/8 percent of the royalty payments allocated to the Sound Recordings
Fund shall be placed in an escrow account managed by an independent
administrator jointly appointed by the interested copyright parties
described in section 1001(7)(A) and the American Federation of
Television and Radio Artists (or any successor entity) to be distributed
to nonfeatured vocalists (whether or not members of the American
Federation of Television and Radio Artists or any successor entity) who
have performed on sound recordings distributed in the United States. 40
percent of the remaining royalty payments in the Sound Recordings Fund
shall be distributed to the interested copyright parties described in
section 1001(7)(C), and 60 percent of such remaining royalty payments
shall be distributed to the interested copyright parties described in
section 1001(7)(A).

(2) The musical works fund.

(A) 33 1/3 percent of the royalty payments shall be allocated to the
Musical Works Fund for distribution to interested copyright parties
described in section 1001(7)(B).

(B)(i) Music publishers shall be entitled to 50 percent of the royalty
payments allocated to the Musical Works Fund.

(ii) Writers shall be entitled to the other 50 percent of the royalty
payments allocated to the Musical Works Fund.

(c) Allocation of Royalty Payments Within Groups. If all interested
copyright parties within a group specified in subsection (b) do not
agree on a voluntary proposal for the distribution of the royalty
payments within each group, the Librarian of Congress shall convene a
copyright arbitration royalty panel which shall, pursuant to the
procedures specified under section 1007(c), allocate royalty payments
under this section based on the extent to which, during the relevant
period-

(1) for the Sound Recordings Fund, each sound recording was distributed
in the form of digital musical recordings or analog musical recordings;
and

(2) for the Musical Works Fund, each musical work was distributed in the
form of digital musical recordings or analog musical recordings or
disseminated to the public in transmissions.

Section 1007. Procedures for distributing royalty payments [5]

(a) Filing of Claims and Negotiations.

(1) Filing of claims. During the first 2 months of each calendar year
after calendar year 1992, every interested copyright party seeking to
receive royalty payments to which such party is entitled under section
1006 shall file with the Librarian of Congress a claim for payments
collected during the preceding year in such form and manner as the
Librarian of Congress shall prescribe by regulation.

(2) Negotiations. Notwithstanding any provision of the antitrust laws,
for purposes of this section interested copyright parties within each
group specified in section 1006(b) may agree among themselves to the
proportionate division of royalty payments, may lump their claims
together and file them jointly or as a single claim, or may designate a
common agent, including any organization described in section 1001(7)
(D), to negotiate or receive payment on their behalf; except that no
agreement under this subsection may modify the allocation of royalties
specified in section 1006(b).

(b) Distribution of Payments in the Absence of a Dispute. After the
period established for the filing of claims under subsection (a), in
each year after 1992, the Librarian of Congress shall determine whether
there exists a controversy concerning the distribution of royalty
payments under section 1006(c). If the Librarian of Congress determines
that no such controversy exists, the Librarian of Congress shall, within
30 days after such determination, authorize the distribution of the
royalty payments as set forth in the agreements regarding the
distribution of royalty payments entered into pursuant to subsection
(a), after deducting its reasonable administrative costs under this
section.

(c) Resolution of Disputes. If the Librarian of Congress finds the
existence of a controversy, the Librarian shall, pursuant to chapter 8
of this title, convene a copyright arbitration royalty panel to
determine the distribution of royalty payments. During the pendency of
such a proceeding, the Librarian of Congress shall withhold from
distribution an amount sufficient to satisfy all claims with respect to
which a controversy exists, but shall, to the extent feasible, authorize
the distribution of any amounts that are not in controversy. The
Librarian of Congress shall, before authorizing the distribution of such
royalty payments, deduct the reasonable administrative costs incurred by
the Librarian under this section.

Subchapter D - Prohibition on Certain Infringement Actions, Remedies,
and Arbitration

Section 1008. Prohibition on certain infringement actions

No action may be brought under this title alleging infringement of
copyright based on the manufacture, importation, or distribution of a
digital audio recording device, a digital audio recording medium, an
analog recording device, or an analog recording medium, or based on the
noncommercial use by a consumer of such a device or medium for making
digital musical recordings or analog musical recordings.

Section 1009. Civil remedies

(a) Civil Actions. Any interested copyright party injured by a violation
of section 1002 or 1003 may bring a civil action in an appropriate
United States district court against any person for such violation.

(b) Other Civil Actions. Any person injured by a violation of this
chapter may bring a civil action in an appropriate United States
district court for actual damages incurred as a result of such
violation.

(c) Powers of the Court. In an action brought under subsection (a), the
court-

(1) may grant temporary and permanent injunctions on such terms as it
deems reasonable to prevent or restrain such violation;

(2) in the case of a violation of section 1002, or in the case of an
injury resulting from a failure to make royalty payments required by
section 1003, shall award damages under subsection (d);

(3) in its discretion may allow the recovery of costs by or against any
party other than the United States or an officer thereof; and

(4) in its discretion may award a reasonable attorney's fee to the
prevailing party.

(d) Award of Damages.

(1) Damages for section 1002 or 1003 violations.

(A) Actual damages.

(i) In an action brought under subsection (a), if the court finds that a
violation of section 1002 or 1003 has occurred, the court shall award to
the complaining party its actual damages if the complaining party elects
such damages at any time before final judgment is entered.

(ii) In the case of section 1003, actual damages shall constitute the
royalty payments that should have been paid under section 1004 and
deposited under section 1005. In such a case, the court, in its
discretion, may award an additional amount of not to exceed 50 percent
of the actual damages.

(B) Statutory damages for section 1002 violations.

(i) Device. A complaining party may recover an award of statutory
damages for each violation of section 1002(a) or (c) in the sum of not
more than $2,500 per device involved in such violation or per device on
which a service prohibited by section 1002(c) has been performed, as the
court considers just.

(ii) Digital musical recording. A complaining party may recover an award
of statutory damages for each violation of section 1002(d) in the sum of
not more than $25 per digital musical recording involved in such
violation, as the court considers just.

(iii) Transmission. A complaining party may recover an award of damages
for each transmission or communication that violates section 1002(e) in
the sum of not more than $10,000, as the court considers just.

(2) Repeated violations. In any case in which the court finds that a
person has violated section 1002 or 1003 within 3 years after a final
judgment against that person for another such violation was entered, the
court may increase the award of damages to not more than double the
amounts that would otherwise be awarded under paragraph (1), as the
court considers just.

(3) Innocent violations of section 1002. The court in its discretion may
reduce the total award of damages against a person violating section
1002 to a sum of not less than $250 in any case in which the court finds
that the violator was not aware and had no reason to believe that its
acts constituted a violation of section 1002.

(e) Payment of Damages. Any award of damages under subsection (d) shall
be deposited with the Register pursuant to section 1005 for distribution
to interested copyright parties as though such funds were royalty
payments made pursuant to section 1003.

(f) Impounding of Articles. At any time while an action under subsection
(a) is pending, the court may order the impounding, on such terms as it
deems reasonable, of any digital audio recording device, digital musical
recording, or device specified in section 1002(c) that is in the custody
or control of the alleged violator and that the court has reasonable
cause to believe does not comply with, or was involved in a violation
of, section 1002.

(g) Remedial Modification and Destruction of Articles. In an action
brought under subsection (a), the court may, as part of a final judgment
or decree finding a violation of section 1002, order the remedial
modification or the destruction of any digital audio recording device,
digital musical recording, or device specified in section 1002(c) that-

(1) does not comply with, or was involved in a violation of, section
1002, and

(2) is in the custody or control of the violator or has been impounded
under subsection (f).

Section 1010. Arbitration of certain disputes [6]

(a) Scope of Arbitration. Before the date of first distribution in the
United States of a digital audio recording device or a digital audio
interface device, any party manufacturing, importing, or distributing
such device, and any interested copyright party may mutually agree to
binding arbitration for the purpose of determining whether such device
is subject to section 1002, or the basis on which royalty payments for
such device are to be made under section 1003.

(b) Initiation of Arbitration Proceedings. Parties agreeing to such
arbitration shall file a petition with the Librarian of Congress
requesting the commencement of an arbitration proceeding. The petition
may include the names and qualifications of potential arbitrators.
Within 2 weeks after receiving such a petition, the Librarian of
Congress shall cause notice to be published in the Federal Register of
the initiation of an arbitration proceeding. Such notice shall include
the names and qualifications of 3 arbitrators chosen by the Librarian of
Congress from a list of available arbitrators obtained from the American
Arbitration Association or such similar organization as the Librarian of
Congress shall select, and from potential arbitrators listed in the
parties' petition. The arbitrators selected under this subsection shall
constitute an Arbitration Panel.

(c) Stay of Judicial Proceedings. Any civil action brought under section
1009 against a party to arbitration under this section shall, on
application of one of the parties to the arbitration, be stayed until
completion of the arbitration proceeding.

(d) Arbitration Proceeding. The Arbitration Panel shall conduct an
arbitration proceeding with respect to the matter concerned, in
accordance with such procedures as it may adopt. The Panel shall act on
the basis of a fully documented written record. Any party to the
arbitration may submit relevant information and proposals to the Panel.
The parties to the proceeding shall bear the entire cost thereof in such
manner and proportion as the Panel shall direct.

(e) Report to the Librarian of Congress. Not later than 60 days after
publication of the notice under subsection (b) of the initiation of an
arbitration proceeding, the Arbitration Panel shall report to the
Librarian of Congress its determination concerning whether the device
concerned is subject to section 1002, or the basis on which royalty
payments for the device are to be made under section 1003. Such report
shall be accompanied by the written record, and shall set forth the
facts that the Panel found relevant to its determination.

(f) Action by the Librarian of Congress. Within 60 days after receiving
the report of the Arbitration Panel under subsection (e), the Librarian
of Congress shall adopt or reject the determination of the Panel. The
Librarian of Congress shall adopt the determination of the Panel unless
the Librarian of Congress finds that the determination is clearly
erroneous. If the Librarian of Congress rejects the determination of the
Panel, the Librarian of Congress shall, before the end of that 60-day
period, and after full examination of the record created in the
arbitration proceeding, issue an order setting forth the Librarian's
decision and the reasons therefor. The Librarian of Congress shall cause
to be published in the Federal Register the determination of the Panel
and the decision of the Librarian of Congress under this subsection with
respect to the determination (including any order issued under the
preceding sentence).

(g) Judicial Review. Any decision of the Librarian of Congress under
subsection (f) with respect to a determination of the Arbitration Panel
may be appealed, by a party to the arbitration, to the United States
Court of Appeals for the District of Columbia Circuit, within 30 days
after the publication of the decision in the Federal Register. The
pendency of an appeal under this subsection shall not stay the decision
of the Librarian of Congress. The court shall have jurisdiction to
modify or vacate a decision of the Librarian of Congress only if it
finds, on the basis of the record before the Librarian of Congress, that
the Arbitration Panel or the Librarian of Congress acted in an arbitrary
manner. If the court modifies the decision of the Librarian of Congress,
the court shall have jurisdiction to enter its own decision in
accordance with its final judgment. The court may further vacate the
decision of the Librarian of Congress and remand the case for
arbitration proceedings as provided in this section.

-------------------
Chapter 10 Endnotes

1 The Audio Home Recording Act of 1992 added chapter 10, entitled
"Digital Audio Recording Devices and Media," to title 17. Pub. L. No.
102-563, 106 Stat. 4237.

2 The Copyright Royalty Tribunal Reform Act of 1993 amended section
1004(a)(3) by substituting "Librarian of Congress" in lieu of "Copyright
Royalty Tribunal," where appropriate. Pub. L. No. 103-198, 107 Stat.
2304, 2312.

3 The Copyright Royalty Tribunal Reform Act of 1993 amended section
1005 by striking the last sentence which began "The Register shall
submit to the Copyright Royalty Tribunal." Pub. L. No. 103-198, 107
Stat. 2304, 2312.

4 The Copyright Royalty Tribunal Reform Act of 1993 amended section
1006(c) by substituting "Librarian of Congress" in lieu of "Copyright
Royalty Tribunal," where appropriate. Pub. L. No. 103-198, 107 Stat.
2304, 2312. In 1997, section 1006(b)(1) was amended to insert
"Federation of Television" in lieu of "Federation Television" wherever
it appeared. Pub. L. No. 105-80, 111 Stat. 1529, 1535.

5 The Copyright Royalty Tribunal Reform Act of 1993 amended section
1007 by substituting "Librarian of Congress" in lieu of "Copyright
Royalty Tribunal" or "Tribunal," where appropriate, by amending the
first sentence in subsection (c) and by inserting "the reasonable
administrative costs incurred by the Librarian" in the last sentence of
subsection (c), in lieu of "its reasonable administrative costs." Pub.
L. No. 103-198, 107 Stat. 2304, 2312.

In 1997, section 1007 was amended, in subsection (a)(1), by inserting
"calendar year 1992" in lieu of "the calendar year in which this chapter
takes effect" and, in subsection (b), by inserting "1992" in lieu of
"the year in which this section takes effect," and also in subsection
(b), by inserting "After" in lieu of "Within 30 days after." Pub. L. No.
105-80, 111 Stat. 1529, 1534 and 1535.

6 The Copyright Royalty Tribunal Reform Act of 1993 amended section
1010 by substituting "Librarian of Congress" in lieu of "Copyright
Royalty Tribunal" or "Tribunal," where appropriate, and by inserting
"Librarian's" in lieu of "its." Pub. L. No. 103-198, 107 Stat. 2304,
2312. That Act, which established copyright arbitration royalty panels,
states that "[a]ll royalty rates and all determinations with respect to
the proportionate division of compulsory license fees among copyright
claimants, whether made by the Copyright Royalty Tribunal, or by
voluntary agreement, before the effective date set forth in subsection
(a) [December 17, 1993] shall remain in effect until modified by
voluntary agreement or pursuant to the amendments made by this Act."
Pub. L. No. 103-198, 107 Stat. 2304, 2313.

------------------------------------------------------------------------

Chapter 11 [1]

Sound Recordings and Music Videos

+ 1101. Unauthorized fixation and trafficking in sound recordings and
music videos

Section 1101. Unauthorized fixation and trafficking in sound recordings and
music videos

(a) Unauthorized Acts. Anyone who, without the consent of the performer
or performers involved-

(1) fixes the sounds or sounds and images of a live musical performance
in a copy or phonorecord, or reproduces copies or phonorecords of such a
performance from an unauthorized fixation,

(2) transmits or otherwise communicates to the public the sounds or
sounds and images of a live musical performance, or

(3) distributes or offers to distribute, sells or offers to sell, rents
or offers to rent, or traffics in any copy or phonorecord fixed as
described in paragraph (1), regardless of whether the fixations occurred
in the United States,

shall be subject to the remedies provided in sections 502 through 505,
to the same extent as an infringer of copyright.

(b) Definition. As used in this section, the term "traffic in" means
transport, transfer, or otherwise dispose of, to another, as
consideration for anything of value, or make or obtain control of with
intent to transport, transfer, or dispose of.

(c) Applicability. This section shall apply to any act or acts that
occur on or after the date of the enactment of the Uruguay Round
Agreements Act.

(d) State Law Not Preempted. Nothing in this section may be construed to
annul or limit any rights or remedies under the common law or statutes
of any State.

------------------
Chapter 11 Endnote

1 In 1994, the Uruguay Round Agreements Act added chapter 11, entitled
"Sound Recordings and Music Videos," to title 17. Pub. L. No. 103-465,
108 Stat. 4809, 4974.

------------------------------------------------------------------------

Chapter 12 [1] Copyright Protection and Management Systems

+ 1201. Circumvention of copyright protection systems
+ 1202. Integrity of copyright management information
+ 1203. Civil remedies
+ 1204. Criminal offenses and penalties
+ 1205. Savings clause

Section 1201. Circumvention of copyright protection systems [2]

(a) Violations Regarding Circumvention of Technological Measures. (1)(A)
No person shall circumvent a technological measure that effectively
controls access to a work protected under this title. The prohibition
contained in the preceding sentence shall take effect at the end of the
2-year period beginning on the date of the enactment of this chapter.

(B) The prohibition contained in subparagraph (A) shall not apply to
persons who are users of a copyrighted work which is in a particular
class of works, if such persons are, or are likely to be in the
succeeding 3-year period, adversely affected by virtue of such
prohibition in their ability to make noninfringing uses of that
particular class of works under this title, as determined under
subparagraph (C).

(C) During the 2-year period described in subparagraph (A), and during
each succeeding 3-year period, the Librarian of Congress, upon the
recommendation of the Register of Copyrights, who shall consult with the
Assistant Secretary for Communications and Information of the Department
of Commerce and report and comment on his or her views in making such
recommendation, shall make the determination in a rulemaking proceeding
for purposes of subparagraph (B) of whether persons who are users of a
copyrighted work are, or are likely to be in the succeeding 3-year
period, adversely affected by the prohibition under subparagraph (A) in
their ability to make noninfringing uses under this title of a
particular class of copyrighted works. In conducting such rule-making,
the Librarian shall examine-

(i) the availability for use of copyrighted works;

(ii) the availability for use of works for nonprofit archival,
preservation, and educational purposes;

(iii) the impact that the prohibition on the circumvention of
technological measures applied to copyrighted works has on criticism,
comment, news reporting, teaching, scholarship, or research;

(iv) the effect of circumvention of technological measures on the market
for or value of copyrighted works; and

(v) such other factors as the Librarian considers appropriate.

(D) The Librarian shall publish any class of copyrighted works for which
the Librarian has determined, pursuant to the rulemaking conducted under
subparagraph (C), that noninfringing uses by persons who are users of a
copyrighted work are, or are likely to be, adversely affected, and the
prohibition contained in subparagraph (A) shall not apply to such users
with respect to such class of works for the ensuing 3-year period.

(E) Neither the exception under subparagraph (B) from the applicability
of the prohibition contained in subparagraph (A), nor any determination
made in a rulemaking conducted under subparagraph (C), may be used as a
defense in any action to enforce any provision of this title other than
this paragraph.

(2) No person shall manufacture, import, offer to the public, provide,
or otherwise traffic in any technology, product, service, device,
component, or part thereof, that-

(A) is primarily designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a work
protected under this title;

(B) has only limited commercially significant purpose or use other than
to circumvent a technological measure that effectively controls access
to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that
person with that person's knowledge for use in circumventing a
technological measure that effectively controls access to a work
protected under this title.

(3) As used in this subsection-

(A) to "circumvent a technological measure" means to descramble a
scrambled work, to decrypt an encrypted work, or otherwise to avoid,
bypass, remove, deactivate, or impair a technological measure, without
the authority of the copyright owner; and

(B) a technological measure "effectively controls access to a work" if
the measure, in the ordinary course of its operation, requires the
application of information, or a process or a treatment, with the
authority of the copyright owner, to gain access to the work.

(b) Additional Violations. (1) No person shall manufacture, import,
offer to the public, provide, or otherwise traffic in any technology,
product, service, device, component, or part thereof, that-

(A) is primarily designed or produced for the purpose of circumventing
protection afforded by a technological measure that effectively protects
a right of a copyright owner under this title in a work or a portion
thereof;

(B) has only limited commercially significant purpose or use other than
to circumvent protection afforded by a technological measure that
effectively protects a right of a copyright owner under this title in a
work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that
person with that person's knowledge for use in circumventing protection
afforded by a technological measure that effectively protects a right of
a copyright owner under this title in a work or a portion thereof.

(2) As used in this subsection-

(A) to "circumvent protection afforded by a technological measure" means
avoiding, bypassing, removing, deactivating, or otherwise impairing a
technological measure; and

(B) a technological measure "effectively protects a right of a copyright
owner under this title" if the measure, in the ordinary course of its
operation, prevents, restricts, or otherwise limits the exercise of a
right of a copyright owner under this title.

(c) Other Rights, Etc., Not Affected. (1) Nothing in this section shall
affect rights, remedies, limitations, or defenses to copyright
infringement, including fair use, under this title.

(2) Nothing in this section shall enlarge or diminish vicarious or
contributory liability for copyright infringement in connection with any
technology, product, service, device, component, or part thereof.

(3) Nothing in this section shall require that the design of, or design
and selection of parts and components for, a consumer electronics,
telecommunications, or computing product provide for a response to any
particular technological measure, so long as such part or component, or
the product in which such part or component is integrated, does not
otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).

(4) Nothing in this section shall enlarge or diminish any rights of free
speech or the press for activities using consumer electronics,
telecommunications, or computing products.

(d) Exemption for Nonprofit Libraries, Archives, and Educational
Institutions.

(1) A nonprofit library, archives, or educational institution which
gains access to a commercially exploited copyrighted work solely in
order to make a good faith determination of whether to acquire a copy of
that work for the sole purpose of engaging in conduct permitted under
this title shall not be in violation of subsection (a)(1)(A). A copy of
a work to which access has been gained under this paragraph-

(A) may not be retained longer than necessary to make such good faith
determination; and

(B) may not be used for any other purpose.

(2) The exemption made available under paragraph (1) shall only apply
with respect to a work when an identical copy of that work is not
reasonably available in another form.

(3) A nonprofit library, archives, or educational institution that
willfully for the purpose of commercial advantage or financial gain
violates paragraph (1)-

(A) shall, for the first offense, be subject to the civil remedies under
section 1203; and

(B) shall, for repeated or subsequent offenses, in addition to the civil
remedies under section 1203, forfeit the exemption provided under
paragraph (1).

(4) This subsection may not be used as a defense to a claim under
subsection (a)(2) or (b), nor may this subsection permit a nonprofit
library, archives, or educational institution to manufacture, import,
offer to the public, provide, or otherwise traffic in any technology,
product, service, component, or part thereof, which circumvents a
technological measure.

(5) In order for a library or archives to qualify for the exemption
under this subsection, the collections of that library or archives shall
be-

(A) open to the public; or

(B) available not only to researchers affiliated with the library or
archives or with the institution of which it is a part, but also to
other persons doing research in a specialized field.

(e) Law Enforcement, Intelligence, and Other Government Activities. This
section does not prohibit any lawfully authorized investigative,
protective, information security, or intelligence activity of an
officer, agent, or employee of the United States, a State, or a
political subdivision of a State, or a person acting pursuant to a
contract with the United States, a State, or a political subdivision of
a State. For purposes of this subsection, the term "information
security" means activities carried out in order to identify and address
the vulnerabilities of a government computer, computer system, or
computer network.

(f) Reverse Engineering. (1) Notwithstanding the provisions of
subsection (a)(1)(A), a person who has lawfully obtained the right to
use a copy of a computer program may circumvent a technological measure
that effectively controls access to a particular portion of that program
for the sole purpose of identifying and analyzing those elements of the
program that are necessary to achieve interoperability of an
independently created computer program with other programs, and that
have not previously been readily available to the person engaging in the
circumvention, to the extent any such acts of identification and
analysis do not constitute infringement under this title.

(2) Notwithstanding the provisions of subsections (a)(2) and (b), a
person may develop and employ technological means to circumvent a
technological measure, or to circumvent protection afforded by a
technological measure, in order to enable the identification and
analysis under paragraph (1), or for the purpose of enabling
interoperability of an independently created computer program with other
programs, if such means are necessary to achieve such interoperability,
to the extent that doing so does not constitute infringement under this
title.

(3) The information acquired through the acts permitted under paragraph
(1), and the means permitted under paragraph (2), may be made available
to others if the person referred to in paragraph (1) or (2), as the case
may be, provides such information or means solely for the purpose of
enabling interoperability of an independently created computer program
with other programs, and to the extent that doing so does not constitute
infringement under this title or violate applicable law other than this
section.

(4) For purposes of this subsection, the term "interoperability" means
the ability of computer programs to exchange information, and of such
programs mutually to use the information which has been exchanged.

(g) Encryption Research.

(1) Definitions. For purposes of this subsection-

(A) the term "encryption research" means activities necessary to
identify and analyze flaws and vulnerabilities of encryption
technologies applied to copyrighted works, if these activities are
conducted to advance the state of knowledge in the field of encryption
technology or to assist in the development of encryption products; and

(B) the term "encryption technology" means the scrambling and
descrambling of information using mathematical formulas or algorithms.

(2) Permissible Acts of Encryption Research. Notwithstanding the
provisions of subsection (a)(1)(A), it is not a violation of that
subsection for a person to circumvent a technological measure as applied
to a copy, phonorecord, performance, or display of a published work in
the course of an act of good faith encryption research if-

(A) the person lawfully obtained the encrypted copy, phonorecord,
performance, or display of the published work;

(B) such act is necessary to conduct such encryption research;

(C) the person made a good faith effort to obtain authorization before
the circumvention; and

(D) such act does not constitute infringement under this title or a
violation of applicable law other than this section, including section
1030 of title 18 and those provisions of title 18 amended by the
Computer Fraud and Abuse Act of 1986.

(3) Factors in Determining Exemption. In determining whether a person
qualifies for the exemption under paragraph (2), the factors to be
considered shall include-

(A) whether the information derived from the encryption research was
disseminated, and if so, whether it was disseminated in a manner
reasonably calculated to advance the state of knowledge or development
of encryption technology, versus whether it was disseminated in a manner
that facilitates infringement under this title or a violation of
applicable law other than this section, including a violation of privacy
or breach of security;

(B) whether the person is engaged in a legitimate course of study, is
employed, or is appropriately trained or experienced, in the field of
encryption technology; and

(C) whether the person provides the copyright owner of the work to which
the technological measure is applied with notice of the findings and
documentation of the research, and the time when such notice is
provided.

(4) Use of Technological Means for Research Activities. Notwithstanding
the provisions of subsection (a)(2), it is not a violation of that
subsection for a person to-

(A) develop and employ technological means to circumvent a technological
measure for the sole purpose of that person performing the acts of good
faith encryption research described in paragraph (2); and

(B) provide the technological means to another person with whom he or
she is working collaboratively for the purpose of conducting the acts of
good faith encryption research described in paragraph (2) or for the
purpose of having that other person verify his or her acts of good faith
encryption research described in paragraph (2).

(5) Report to Congress. Not later than 1 year after the date of the
enactment of this chapter, the Register of Copyrights and the Assistant
Secretary for Communications and Information of the Department of
Commerce shall jointly report to the Congress on the effect this
subsection has had on-

(A) encryption research and the development of encryption technology;

(B) the adequacy and effectiveness of technological measures designed to
protect copyrighted works; and

(C) protection of copyright owners against the unauthorized access to
their encrypted copyrighted works.

The report shall include legislative recommendations, if any.

(h) Exceptions Regarding Minors. In applying subsection (a) to a
component or part, the court may consider the necessity for its intended
and actual incorporation in a technology, product, service, or device,
which-

(1) does not itself violate the provisions of this title; and

(2) has the sole purpose to prevent the access of minors to material on
the Internet.

(i) Protection of Personally Identifying Information.

(1) Circumvention Permitted. Notwithstanding the provisions of
subsection (a)(1)(A), it is not a violation of that subsection for a
person to circumvent a technological measure that effectively controls
access to a work protected under this title, if-

(A) the technological measure, or the work it protects, contains the
capability of collecting or disseminating personally identifying
information reflecting the online activities of a natural person who
seeks to gain access to the work protected;

(B) in the normal course of its operation, the technological measure, or
the work it protects, collects or disseminates personally identifying
information about the person who seeks to gain access to the work
protected, without providing conspicuous notice of such collection or
dissemination to such person, and without providing such person with the
capability to prevent or restrict such collection or dissemination;

(C) the act of circumvention has the sole effect of identifying and
disabling the capability described in subparagraph (A), and has no other
effect on the ability of any person to gain access to any work; and

(D) the act of circumvention is carried out solely for the purpose of
preventing the collection or dissemination of personally identifying
information about a natural person who seeks to gain access to the work
protected, and is not in violation of any other law.

(2) Inapplicability to Certain Technological Measures.

This subsection does not apply to a technological measure, or a work it
protects, that does not collect or disseminate personally identifying
information and that is disclosed to a user as not having or using such
capability.

(j) Security Testing.

(1) Definition. For purposes of this subsection, the term "security
testing" means accessing a computer, computer system, or computer
network, solely for the purpose of good faith testing, investigating, or
correcting, a security flaw or vulnerability, with the authorization of
the owner or operator of such computer, computer system, or computer
network.

(2) Permissible Acts of Security Testing. Notwithstanding the provisions
of subsection (a)(1)(A), it is not a violation of that subsection for a
person to engage in an act of security testing, if such act does not
constitute infringement under this title or a violation of applicable
law other than this section, including section 1030 of title 18 and
those provisions of title 18 amended by the Computer Fraud and Abuse Act
of 1986.

(3) Factors in Determining Exemption. In determining whether a person
qualifies for the exemption under paragraph (2), the factors to be
considered shall include-

(A) whether the information derived from the security testing was used
solely to promote the security of the owner or operator of such
computer, computer system or computer network, or shared directly with
the developer of such computer, computer system, or computer network;
and

(B) whether the information derived from the security testing was used
or maintained in a manner that does not facilitate infringement under
this title or a violation of applicable law other than this section,
including a violation of privacy or breach of security.

(4) Use of Technological Means for Security Testing. Notwithstanding
the provisions of subsection (a)(2), it is not a violation of that
subsection for a person to develop, produce, distribute or employ
technological means for the sole purpose of performing the acts of
security testing described in subsection (2), provided such
technological means does not otherwise violate section (a)(2).

(k) Certain Analog Devices and Certain Technological Measures.

(1) Certain Analog Devices.

(A) Effective 18 months after the date of the enactment of this chapter,
no person shall manufacture, import, offer to the public, provide or
otherwise traffic in any-

(i) VHS format analog video cassette recorder unless such recorder
conforms to the automatic gain control copy control technology;

(ii) 8mm format analog video cassette camcorder unless such camcorder
conforms to the automatic gain control technology;

(iii) Beta format analog video cassette recorder, unless such recorder
conforms to the automatic gain control copy control technology, except
that this requirement shall not apply until there are 1,000 Beta format
analog video cassette recorders sold in the United States in any one
calendar year after the date of the enactment of this chapter;

(iv) 8mm format analog video cassette recorder that is not an analog
video cassette camcorder, unless such recorder conforms to the automatic
gain control copy control technology, except that this requirement shall
not apply until there are 20,000 such recorders sold in the United
States in any one calendar year after the date of the enactment of this
chapter; or

(v) analog video cassette recorder that records using an NTSC format
video input and that is not otherwise covered under clauses (i) through
(iv), unless such device conforms to the automatic gain control copy
control technology.

(B) Effective on the date of the enactment of this chapter, no person
shall manufacture, import, offer to the public, provide or otherwise
traffic in-

(i) any VHS format analog video cassette recorder or any 8mm format
analog video cassette recorder if the design of the model of such
recorder has been modified after such date of enactment so that a model
of recorder that previously conformed to the automatic gain control copy
control technology no longer conforms to such technology; or

(ii) any VHS format analog video cassette recorder, or any 8mm format
analog video cassette recorder that is not an 8mm analog video cassette
camcorder, if the design of the model of such recorder has been modified
after such date of enactment so that a model of recorder that previously
conformed to the four-line colorstripe copy control technology no longer
conforms to such technology.

Manufacturers that have not previously manufactured or sold a VHS format
analog video cassette recorder, or an 8mm format analog cassette
recorder, shall be required to conform to the four-line colorstripe copy
control technology in the initial model of any such recorder
manufactured after the date of the enactment of this chapter, and
thereafter to continue conforming to the four-line colorstripe copy
control technology. For purposes of this subparagraph, an analog video
cassette recorder "conforms to" the four-line colorstripe copy control
technology if it records a signal that, when played back by the playback
function of that recorder in the normal viewing mode, exhibits, on a
reference display device, a display containing distracting visible lines
through portions of the viewable picture.

(2) Certain Encoding Restrictions. No person shall apply the automatic
gain control copy control technology or colorstripe copy control
technology to prevent or limit consumer copying except such copying-

(A) of a single transmission, or specified group of transmissions, of
live events or of audiovisual works for which a member of the public has
exercised choice in selecting the transmissions, including the content
of the transmissions or the time of receipt of such transmissions, or
both, and as to which such member is charged a separate fee for each
such transmission or specified group of transmissions;

(B) from a copy of a transmission of a live event or an audiovisual work
if such transmission is provided by a channel or service where payment
is made by a member of the public for such channel or service in the
form of a subscription fee that entitles the member of the public to
receive all of the programming contained in such channel or service;

(C) from a physical medium containing one or more prerecorded
audiovisual works; or

(D) from a copy of a transmission described in subparagraph (A) or from
a copy made from a physical medium described in subparagraph (C).

In the event that a transmission meets both the conditions set forth in
subparagraph (A) and those set forth in subparagraph (B), the
transmission shall be treated as a transmission described in
subparagraph (A).

(3) Inapplicability. This subsection shall not-

(A) require any analog video cassette camcorder to conform to the
automatic gain control copy control technology with respect to any video
signal received through a camera lens;

(B) apply to the manufacture, importation, offer for sale, provision of,
or other trafficking in, any professional analog video cassette
recorder; or

(C) apply to the offer for sale or provision of, or other trafficking
in, any previously owned analog video cassette recorder, if such
recorder was legally manufactured and sold when new and not subsequently
modified in violation of paragraph (1)(B).

(4) Definitions. For purposes of this subsection:

(A) An "analog video cassette recorder" means a device that records, or
a device that includes a function that records, on electromagnetic tape
in an analog format the electronic impulses produced by the video and
audio portions of a television program, motion picture, or other form of
audiovisual work.

(B) An "analog video cassette camcorder" means an analog video cassette
recorder that contains a recording function that operates through a
camera lens and through a video input that may be connected with a
television or other video playback device.

(C) An analog video cassette recorder "conforms" to the automatic gain
control copy control technology if it-

(i) detects one or more of the elements of such technology and does not
record the motion picture or transmission protected by such technology;
or

(ii) records a signal that, when played back, exhibits a meaningfully
distorted or degraded display.

(D) The term "professional analog video cassette recorder" means an
analog video cassette recorder that is designed, manufactured, marketed,
and intended for use by a person who regularly employs such a device for
a lawful business or industrial use, including making, performing ,
displaying, distributing, or transmitting copies of motion pictures on a
commercial scale.

(E) The terms "VHS format," "8mm format," "Beta format," "automatic gain
control copy control technology," "colorstripe copy control technology,"
"four-line version of the colorstripe copy control technology," and
"NTSC" have the meanings that are commonly understood in the consumer
electronics and motion picture industries as of the date of the
enactment of this chapter.

(5) Violations. Any violation of paragraph (1) of this subsection shall
be treated as a violation of subsection (b)(1) of this section. Any
violation of paragraph (2) of this subsection shall be deemed an "act of
circumvention" for the purposes of section 1203(c)(3)(A) of this
chapter.

Section 1202. Integrity of copyright management information [3]

(a) False Copyright Management Information. No person shall knowingly
and with the intent to induce, enable, facilitate, or conceal
infringement-

(1) provide copyright management information that is false, or

(2) distribute or import for distribution copyright management
information that is false.

(b) Removal or Alteration of Copyright Management Information. No person
shall, without the authority of the copyright owner or the law-

(1) intentionally remove or alter any copyright management information,

(2) distribute or import for distribution copyright management
information knowing that the copyright management information has been
removed or altered without authority of the copyright owner or the law,
or

(3) distribute, import for distribution, or publicly perform works,
copies of works, or phonorecords, knowing that copyright management
information has been removed or altered without authority of the
copyright owner or the law,

knowing, or, with respect to civil remedies under section 1203, having
reasonable grounds to know, that it will induce, enable, facilitate, or
conceal an infringement of any right under this title.

(c) Definition. As used in this section, the term "copyright management
information" means any of the following information conveyed in
connection with copies or phonorecords of a work or performances or
displays of a work, including in digital form, except that such term
does not include any personally identifying information about a user of
a work or of a copy, phonorecord, performance, or display of a work:

(1) The title and other information identifying the work, including the
information set forth on a notice of copyright.

(2) The name of, and other identifying information about, the author of
a work.

(3) The name of, and other identifying information about, the copyright
owner of the work, including the information set forth in a notice of
copyright.

(4) With the exception of public performances of works by radio and
television broadcast stations, the name of, and other identifying
information about, a performer whose performance is fixed in a work
other than an audiovisual work.

(5) With the exception of public performances of works by radio and
television broadcast stations, in the case of an audiovisual work, the
name of, and other identifying information about, a writer, performer,
or director who is credited in the audiovisual work.

(6) Terms and conditions for use of the work.

(7) Identifying numbers or symbols referring to such information or
links to such information.

(8) Such other information as the Register of Copyrights may prescribe
by regulation, except that the Register of Copyrights may not require
the provision of any information concerning the user of a copyrighted
work.

(d) Law Enforcement, Intelligence, and Other Government Activities. This
section does not prohibit any lawfully authorized investigative,
protective, information security, or intelligence activity of an
officer, agent, or employee of the United States, a State, or a
political subdivision of a State, or a person acting pursuant to a
contract with the United States, a State, or a political subdivision of
a State. For purposes of this subsection, the term "information
security" means activities carried out in order to identify and address
the vulnerabilities of a government computer, computer system, or
computer network.

(e) Limitations on Liability.

(1) Analog Transmissions. In the case of an analog transmission, a
person who is making transmissions in its capacity as a broadcast
station, or as a cable system, or someone who provides programming to
such station or system, shall not be liable for a violation of
subsection (b) if-

(A) avoiding the activity that constitutes such violation is not
technically feasible or would create an undue financial hardship on such
person; and

(B) such person did not intend, by engaging in such activity, to induce,
enable, facilitate, or conceal infringement of a right under this title.

(2) Digital Transmissions.

(A) If a digital transmission standard for the placement of copyright
management information for a category of works is set in a voluntary,
consensus standard-setting process involving a representative cross-
section of broadcast stations or cable systems and copyright owners of a
category of works that are intended for public performance by such
stations or systems, a person identified in paragraph (1) shall not be
liable for a violation of subsection (b) with respect to the particular
copyright management information addressed by such standard if-

(i) the placement of such information by someone other than such person
is not in accordance with such standard; and

(ii) the activity that constitutes such violation is not intended to
induce, enable, facilitate, or conceal infringement of a right under
this title.

(B) Until a digital transmission standard has been set pursuant to
subparagraph (A) with respect to the placement of copyright management
information for a category of works, a person identified in paragraph
(1) shall not be liable for a violation of subsection (b) with respect
to such copyright management information, if the activity that
constitutes such violation is not intended to induce, enable,
facilitate, or conceal infringement of a right under this title, and if-

(i) the transmission of such information by such person would result in
a perceptible visual or aural degradation of the digital signal; or

(ii) the transmission of such information by such person would conflict
with-

(I) an applicable government regulation relating to transmission of
information in a digital signal;

(II) an applicable industry-wide standard relating to the transmission
of information in a digital signal that was adopted by a voluntary
consensus standards body prior to the effective date of this chapter; or

(III) an applicable industry-wide standard relating to the transmission
of information in a digital signal that was adopted in a voluntary,
consensus standards-setting process open to participation by a
representative cross-section of broadcast stations or cable systems and
copyright owners of a category of works that are intended for public
performance by such stations or systems.

(3) Definitions. As used in this subsection-

(A) the term "broadcast station" has the meaning given that term in
section 3 of the Communications Act of 1934 (47 U.S.C. 153); and

(B) the term "cable system" has the meaning given that term in section
602 of the Communications Act of 1934 (47 U.S.C. 522).

Section 1203. Civil remedies [5]

(a) Civil Actions. Any person injured by a violation of section 1201 or
1202 may bring a civil action in an appropriate United States district
court for such violation.

(b) Powers of the Court. In an action brought under subsection (a), the
court-

(1) may grant temporary and permanent injunctions on such terms as it
deems reasonable to prevent or restrain a violation, but in no event
shall impose a prior restraint on free speech or the press protected
under the 1st amendment to the Constitution;

(2) at any time while an action is pending, may order the impounding, on
such terms as it deems reasonable, of any device or product that is in
the custody or control of the alleged violator and that the court has
reasonable cause to believe was involved in a violation;

(3) may award damages under subsection (c);

(4) in its discretion may allow the recovery of costs by or against any
party other than the United States or an officer thereof;

(5) in its discretion may award reasonable attorney's fees to the
prevailing party; and

(6) may, as part of a final judgment or decree finding a violation,
order the remedial modification or the destruction of any device or
product involved in the violation that is in the custody or control of
the violator or has been impounded under paragraph (2).

(c) Award of Damages.

(1) In General. Except as otherwise provided in this title, a person
committing a violation of section 1201 or 1202 is liable for either-

(A) the actual damages and any additional profits of the violator, as
provided in paragraph (2), or

(B) statutory damages, as provided in paragraph (3).

(2) Actual Damages. The court shall award to the complaining party the
actual damages suffered by the party as a result of the violation, and
any profits of the violator that are attributable to the violation and
are not taken into account in computing the actual damages, if the
complaining party elects such damages at any time before final judgment
is entered.

(3) Statutory Damages. (A) At any time before final judgment is entered,
a complaining party may elect to recover an award of statutory damages
for each violation of section 1201 in the sum of not less than $200 or
more than $2,500 per act of circumvention, device, product, component,
offer, or performance of service, as the court considers just.

(B) At any time before final judgment is entered, a complaining party
may elect to recover an award of statutory damages for each violation of
section 1202 in the sum of not less than $2,500 or more than $25,000.

(4) Repeated Violations. In any case in which the injured party sustains
the burden of proving, and the court finds, that a person has violated
section 1201 or 1202 within three years after a final judgment was
entered against the person for another such violation, the court may
increase the award of damages up to triple the amount that would
otherwise be awarded, as the court considers just.

(5) Innocent Violations.

(A) In General. The court in its discretion may reduce or remit the
total award of damages in any case in which the violator sustains the
burden of proving, and the court finds, that the violator was not aware
and had no reason to believe that its acts constituted a violation.

(B) Nonprofit Library, Archives, Educational Institutions, or Public
Broadcasting Entities.

(i) Definition. In this subparagraph, the term "public broadcasting
entity" has the meaning given such term under section 118(g).

(ii) In general. In the case of a nonprofit library, archives,
educational institution, or public broadcasting entity, the court shall
remit damages in any case in which the library, archives, educational
institution, or public broadcasting entity sustains the burden of
proving, and the court finds, that the library, archives, educational
institution, or public broadcasting entity was not aware and had no
reason to believe that its acts constituted a violation.

Section 1204. Criminal offenses and penalties [5]

(a) In General. Any person who violates section 1201 or 1202 willfully
and for purposes of commercial advantage or private financial gain-

(1) shall be fined not more than $500,000 or imprisoned for not more
than 5 years, or both, for the first offense; and

(2) shall be fined not more than $1,000,000 or imprisoned for not more
than 10 years, or both, for any subsequent offense.

(b) Limitation for Nonprofit Library, Archives, Educational Institution,
or Public Broadcasting Entity. Subsection (a) shall not apply to a
nonprofit library, archives, educational institution, or public
broadcasting entity (as defined under section 118(g)).

(c) Statute of Limitations. No criminal proceeding shall be brought
under this section unless such proceeding is commenced within five years
after the cause of action arose.

Section 1205. Savings clause

Nothing in this chapter abrogates, diminishes, or weakens the provisions
of, nor provides any defense or element of mitigation in a criminal
prosecution or civil action under, any Federal or State law that
prevents the violation of the privacy of an individual in connection
with the individual's use of the Internet.

-------------------
Chapter 12 Endnotes

1 The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 added chapter 12, entitled "Copyright
Protection and Management Systems," to title 17. Pub. L. No. 105-304,
112 Stat. 2860, 2863. The WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998 is title I of the Digital Millennium
Copyright Act. Pub. L. No. 105-304, 112 Stat. 2860.

2 The Satellite Home Viewer Improvement Act of 1999 amended section
1201(a)(1)(C) by deleting "on the record." Pub. L. No. 106-113, 113
Stat. 1501, app. I at 1501A-594.

3 In 1999, section 1202 was amended by inserting "category of works"
for "category or works," in subsection (e)(2)(B). Pub. L. No. 106-44,
113 Stat. 221, 222.

4 The Satellite Home Viewer Improvement Act of 1999 amended section
1203(c)(5)(B) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app.
I at 1501A-593.

5 The Satellite Home Viewer Improvement Act of 1999 amended section
1204(b) in its entirety. Pub. L. No. 106-113, 113 Stat. 1501, app. I at
1501A-593.

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Chapter 13 [1]

Protection of Original Designs

+ 1301. Designs protected
+ 1302. Designs not subject to protection
+ 1303. Revisions, adaptations, and rearrangements
+ 1304. Commencement of protection
+ 1305. Term of protection
+ 1306. Design notice
+ 1307. Effect of omission of notice
+ 1308. Exclusive rights
+ 1309. Infringement
+ 1310. Application for registration
+ 1311. Benefit of earlier filing date in foreign country
+ 1312. Oaths and acknowledgments
+ 1313. Examination of application and issue or refusal of
registration
+ 1314. Certification of registration
+ 1315. Publication of announcements and indexes
+ 1316. Fees
+ 1317. Regulations
+ 1318. Copies of records
+ 1319. Correction of errors in certificates
+ 1320. Ownership and transfer
+ 1321. Remedy for infringement
+ 1322. Injunctions
+ 1323. Recovery for infringement
+ 1324. Power of court over registration
+ 1325. Liability for action on registration fraudulently obtained
+ 1326. Penalty for false marking
+ 1327. Penalty for false representation
+ 1328. Enforcement by Treasury and Postal Service
+ 1329. Relation to design patent law
+ 1330. Common law and other rights unaffected
+ 1331. Administrator; Office of the Administrator
+ 1332. No retroactive effect

Section 1301. Designs protected [3]

(a) Designs Protected.

(1) In General. The designer or other owner of an original design of a
useful article which makes the article attractive or distinctive in
appearance to the purchasing or using public may secure the protection
provided by this chapter upon complying with and subject to this
chapter.

(2) Vessel Hulls. The design of a vessel hull, including a plug or mold,
is subject to protection under this chapter, notwithstanding section
1302(4).

(b) Definitions. For the purpose of this chapter, the following terms
have the following meanings:

(1) A design is "original" if it is the result of the designer's
creative endeavor that provides a distinguishable variation over prior
work pertaining to similar articles which is more than merely trivial
and has not been copied from another source.

(2) A "useful article" is a vessel hull, including a plug or mold, which
in normal use has an intrinsic utilitarian function that is not merely
to portray the appearance of the article or to convey information. An
article which normally is part of a useful article shall be deemed to be
a useful article.

(3) A "vessel" is a craft-

(A) that is designed and capable of independently steering a course on
or through water through its own means of propulsion; and

(B) that is designed and capable of carrying and transporting one or
more passengers.

(4) A "hull" is the frame or body of a vessel, including the deck of a
vessel, exclusive of masts, sails, yards, and rigging.

(5) A "plug" means a device or model used to make a mold for the purpose
of exact duplication, regardless of whether the device or model has an
intrinsic utilitarian function that is not only to portray the
appearance of the product or to convey information.

(6) A "mold" means a matrix or form in which a substance for material is
used, regardless of whether the matrix or form has an intrinsic
utilitarian function that is not only to portray the appearance of the
product or to convey information.

Section 1302. Designs not subject to protection [3]

Protection under this chapter shall not be available for a design that
is-

(1) not original;

(2) staple or commonplace, such as a standard geometric figure, a
familiar symbol, an emblem, or a motif, or another shape, pattern, or
configuration which has become standard, common, prevalent, or ordinary;

(3) different from a design excluded by paragraph (2) only in
insignificant details or in elements which are variants commonly used in
the relevant trades;

(4) dictated solely by a utilitarian function of the article that
embodies it; or

(5) embodied in a useful article that was made public by the designer or
owner in the United States or a foreign country more than 2 years before
the date of the application for registration under this chapter.

Section 1303. Revisions, adaptations, and rearrangements

Protection for a design under this chapter shall be available
notwithstanding the employment in the design of subject matter excluded
from protection under section 1302 if the design is a substantial
revision, adaptation, or rearrangement of such subject matter. Such
protection shall be independent of any subsisting protection in subject
matter employed in the design, and shall not be construed as securing
any right to subject matter excluded from protection under this chapter
or as extending any subsisting protection under this chapter.

Section 1304. Commencement of protection

The protection provided for a design under this chapter shall commence
upon the earlier of the date of publication of the registration under
section 1313(a) or the date the design is first made public as defined
by section 1310(b).

Section 1305. Term of protection

(a) In General. Subject to subsection (b), the protection provided under
this chapter for a design shall continue for a term of 10 years
beginning on the date of the commencement of protection under section
1304.

(b) Expiration. All terms of protection provided in this section shall
run to the end of the calendar year in which they would otherwise
expire.

(c) Termination of Rights. Upon expiration or termination of protection
in a particular design under this chapter, all rights under this chapter
in the design shall terminate, regardless of the number of different
articles in which the design may have been used during the term of its
protection.

Section 1306. Design notice

(a) Contents of Design Notice.

(1) Whenever any design for which protection is sought under this
chapter is made public under section 1310(b), the owner of the design
shall, subject to the provisions of section 1307, mark it or have it
marked legibly with a design notice consisting of

(A) the words "Protected Design", the abbreviation "Prot'd Des.", or the
letter "D" with a circle, or the symbol "*D*";

(B) the year of the date on which protection for the design commenced;
and

(C) the name of the owner, an abbreviation by which the name can be
recognized, or a generally accepted alternative designation of the
owner.

Any distinctive identification of the owner may be used for purposes of
subparagraph (C) if it has been recorded by the Administrator before the
design marked with such identification is registered.

(2) After registration, the registration number may be used instead of
the elements specified in subparagraphs (B) and (C) of paragraph (1).

(b) Location of Notice. The design notice shall be so located and
applied as to give reasonable notice of design protection while the
useful article embodying the design is passing through its normal
channels of commerce.

(c) Subsequent Removal of Notice. When the owner of a design has
complied with the provisions of this section, protection under this
chapter shall not be affected by the removal, destruction, or
obliteration by others of the design notice on an article.

Section 1307. Effect of omission of notice

(a) Actions with Notice. Except as provided in subsection (b), the
omission of the notice prescribed in section 1306 shall not cause loss
of the protection under this chapter or prevent recovery for
infringement under this chapter against any person who, after receiving
written notice of the design protection, begins an undertaking leading
to infringement under this chapter.

(b) Actions without Notice. The omission of the notice prescribed in
section 1306 shall prevent any recovery under section 1323 against a
person who began an undertaking leading to infringement under this
chapter before receiving written notice of the design protection. No
injunction shall be issued under this chapter with respect to such
undertaking unless the owner of the design reimburses that person for
any reasonable expenditure or contractual obligation in connection with
such undertaking that was incurred before receiving written notice of
the design protection, as the court in its discretion directs. The
burden of providing written notice of design protection shall be on the
owner of the design.

Section 1308. Exclusive rights

The owner of a design protected under this chapter has the exclusive
right to-

(1) make, have made, or import, for sale or for use in trade, any useful
article embodying that design; and

(2) sell or distribute for sale or for use in trade any useful article
embodying that design.

Section 1309. Infringement

(a) Acts of Infringement. Except as provided in subsection (b), it shall
be infringement of the exclusive rights in a design protected under this
chapter for any person, without the consent of the owner of the design,
within the United States and during the term of such protection, to-

(1) make, have made, or import, for sale or for use in trade, any
infringing article as defined in subsection (e); or

(2) sell or distribute for sale or for use in trade any such infringing
article.

(b) Acts of Sellers and Distributors. A seller or distributor of an
infringing article who did not make or import the article shall be
deemed to have infringed on a design protected under this chapter only
if that person-

(1) induced or acted in collusion with a manufacturer to make, or an
importer to import such article, except that merely purchasing or giving
an order to purchase such article in the ordinary course of business
shall not of itself constitute such inducement or collusion; or

(2) refused or failed, upon the request of the owner of the design, to
make a prompt and full disclosure of that person's source of such
article, and that person orders or reorders such article after receiving
notice by registered or certified mail of the protection subsisting in
the design.

(c) Acts without Knowledge. It shall not be infringement under this
section to make, have made, import, sell, or distribute, any article
embodying a design which was created without knowledge that a design was
protected under this chapter and was copied from such protected design.

(d) Acts in Ordinary Course of Business. A person who incorporates into
that person's product of manufacture an infringing article acquired from
others in the ordinary course of business, or who, without knowledge of
the protected design embodied in an infringing article, makes or
processes the infringing article for the account of another person in
the ordinary course of business, shall not be deemed to have infringed
the rights in that design under this chapter except under a condition
contained in paragraph (1) or (2) of subsection (b). Accepting an order
or reorder from the source of the infringing article shall be deemed
ordering or reordering within the meaning of subsection (b)(2).

(e) Infringing Article Defined. As used in this section, an "infringing
article" is any article the design of which has been copied from a
design protected under this chapter, without the consent of the owner of
the protected design. An infringing article is not an illustration or
picture of a protected design in an advertisement, book, periodical,
newspaper, photograph, broadcast, motion picture, or similar medium. A
design shall not be deemed to have been copied from a protected design
if it is original and not substantially similar in appearance to a
protected design.

(f) Establishing Originality. The party to any action or proceeding
under this chapter who alleges rights under this chapter in a design
shall have the burden of establishing the design's originality whenever
the opposing party introduces an earlier work which is identical to such
design, or so similar as to make prima facie showing that such design
was copied from such work.

(g) Reproduction for Teaching or Analysis. It is not an infringement of
the exclusive rights of a design owner for a person to reproduce the
design in a useful article or in any other form solely for the purpose
of teaching, analyzing, or evaluating the appearance, concepts, or
techniques embodied in the design, or the function of the useful article
embodying the design.

Section 1310. Application for registration

(a) Time Limit for Application for Registration. Protection under this
chapter shall be lost if application for registration of the design is
not made within 2 years after the date on which the design is first made
public.

(b) When Design is Made Public. A design is made public when an existing
useful article embodying the design is anywhere publicly exhibited,
publicly distributed, or offered for sale or sold to the public by the
owner of the design or with the owner's consent.

(c) Application by Owner of Design. Application for registration may be
made by the owner of the design.

(d) Contents of Application. The application for registration shall be
made to the Administrator and shall state-

(1) the name and address of the designer or designers of the design;

(2) the name and address of the owner if different from the designer;

(3) the specific name of the useful article embodying the design;

(4) the date, if any, that the design was first made public, if such
date was earlier than the date of the application;

(5) affirmation that the design has been fixed in a useful article; and

(6) such other information as may be required by the Administrator.

The application for registration may include a description setting forth
the salient features of the design, but the absence of such a
description shall not prevent registration under this chapter.

(e) Sworn Statement. The application for registration shall be
accompanied by a statement under oath by the applicant or the
applicant's duly authorized agent or representative, setting forth, to
the best of the applicant's knowledge and belief-

(1) that the design is original and was created by the designer or
designers named in the application;

(2) that the design has not previously been registered on behalf of the
applicant or the applicant's predecessor in title; and

(3) that the applicant is the person entitled to protection and to
registration under this chapter.

If the design has been made public with the design notice prescribed in
section 1306, the statement shall also describe the exact form and
position of the design notice.

(f) Effect of Errors. (1) Error in any statement or assertion as to the
utility of the useful article named in the application under this
section, the design of which is sought to be registered, shall not
affect the protection secured under this chapter.

(2) Errors in omitting a joint designer or in naming an alleged joint
designer shall not affect the validity of the registration, or the
actual ownership or the protection of the design, unless it is shown
that the error occurred with deceptive intent.

(g) Design Made in Scope of Employment. In a case in which the design
was made within the regular scope of the designer's employment and
individual authorship of the design is difficult or impossible to
ascribe and the application so states, the name and address of the
employer for whom the design was made may be stated instead of that of
the individual designer.

(h) Pictorial Representation of Design. The application for registration
shall be accompanied by two copies of a drawing or other pictorial
representation of the useful article embodying the design, having one or
more views, adequate to show the design, in a form and style suitable
for reproduction, which shall be deemed a part of the application.

(i) Design in More Than One Useful Article. If the distinguishing
elements of a design are in substantially the same form in different
useful articles, the design shall be protected as to all such useful
articles when protected as to one of them, but not more than one
registration shall be required for the design.

(j) Application for More Than One Design. More than one design may be
included in the same application under such conditions as may be
prescribed by the Administrator. For each design included in an
application the fee prescribed for a single design shall be paid.

Section 1311. Benefit of earlier filing date in foreign country

An application for registration of a design filed in the United States
by any person who has, or whose legal representative or predecessor or
successor in title has, previously filed an application for registration
of the same design in a foreign country which extends to designs of
owners who are citizens of the United States, or to applications filed
under this chapter, similar protection to that provided under this
chapter shall have that same effect as if filed in the United States on
the date on which the application was first filed in such foreign
country, if the application in the United States is filed within 6
months after the earliest date on which any such foreign application was
filed.

Section 1312. Oaths and acknowledgments

(a) In General. Oaths and acknowledgments required by this chapter-

(1) may be made-

(A) before any person in the United States authorized by law to
administer oaths; or

(B) when made in a foreign country, before any diplomatic or consular
officer of the United States authorized to administer oaths, or before
any official authorized to administer oaths in the foreign country
concerned, whose authority shall be proved by a certificate of a
diplomatic or consular officer of the United States; and

(2) shall be valid if they comply with the laws of the State or country
where made.

(b) Written Declaration in Lieu of Oath. (1) The Administrator may by
rule prescribe that any document which is to be filed under this chapter
in the Office of the Administrator and which is required by any law,
rule, or other regulation to be under oath, may be subscribed to by a
written declaration in such form as the Administrator may prescribe, and
such declaration shall be in lieu of the oath otherwise required.

(2) Whenever a written declaration under paragraph (1) is used, the
document containing the declaration shall state that willful false
statements are punishable by fine or imprisonment, or both, pursuant to
section 1001 of title 18, and may jeopardize the validity of the
application or document or a registration resulting therefrom.

Section 1313. Examination of application and issue or refusal of
registration [4]

(a) Determination of Registrability of Design; Registration.

Upon the filing of an application for registration in proper form under
section 1310, and upon payment of the fee prescribed under section 1316,
the Administrator shall determine whether or not the application relates
to a design which on its face appears to be subject to protection under
this chapter, and, if so, the Register shall register the design.
Registration under this subsection shall be announced by publication.
The date of registration shall be the date of publication.

(b) Refusal To Register; Reconsideration. If, in the judgment of the
Administrator, the application for registration relates to a design
which on its face is not subject to protection under this chapter, the
Administrator shall send to the applicant a notice of refusal to
register and the grounds for the refusal. Within 3 months after the date
on which the notice of refusal is sent, the applicant may, by written
request, seek reconsideration of the application. After consideration of
such a request, the Administrator shall either register the design or
send to the applicant a notice of final refusal to register.

(c) Application To Cancel Registration. Any person who believes he or
she is or will be damaged by a registration under this chapter may, upon
payment of the prescribed fee, apply to the Administrator at any time to
cancel the registration on the ground that the design is not subject to
protection under this chapter, stating the reasons for the request. Upon
receipt of an application for cancellation, the Administrator shall send
to the owner of the design, as shown in the records of the Office of the
Administrator, a notice of the application, and the owner shall have a
period of 3 months after the date on which such notice is mailed in
which to present arguments to the Administrator for support of the
validity of the registration. The Administrator shall also have the
authority to establish, by regulation, conditions under which the
opposing parties may appear and be heard in support of their arguments.
If, after the periods provided for the presentation of arguments have
expired, the Administrator determines that the applicant for
cancellation has established that the design is not subject to
protection under this chapter, the Administrator shall order the
registration stricken from the record. Cancellation under this
subsection shall be announced by publication, and notice of the
Administrator's final determination with respect to any application for
cancellation shall be sent to the applicant and to the owner of record.
Costs of the cancellation procedure under this subsection shall be borne
by the nonprevailing party or parties, and the Administrator shall have
the authority to assess and collect such costs.

Section 1314. Certification of registration

Certificates of registration shall be issued in the name of the United
States under the seal of the Office of the Administrator and shall be
recorded in the official records of the Office. The certificate shall
state the name of the useful article, the date of filing of the
application, the date of registration, and the date the design was made
public, if earlier than the date of filing of the application, and shall
contain a reproduction of the drawing or other pictorial representation
of the design. If a description of the salient features of the design
appears in the application, the description shall also appear in the
certificate. A certificate of registration shall be admitted in any
court as prima facie evidence of the facts stated in the certificate.

Section 1315. Publication of announcements and indexes

(a) Publications of the Administrator. The Administrator shall publish
lists and indexes of registered designs and cancellations of designs and
may also publish the drawings or other pictorial representations of
registered designs for sale or other distribution.

(b) File of Representatives of Registered Designs. The Administrator
shall establish and maintain a file of the drawings or other pictorial
representations of registered designs. The file shall be available for
use by the public under such conditions as the Administrator may
prescribe.

Section 1316. Fees

The Administrator shall by regulation set reasonable fees for the filing
of applications to register designs under this chapter and for other
services relating to the administration of this chapter, taking into
consideration the cost of providing these services and the benefit of a
public record.

Section 1317. Regulations

The Administrator may establish regulations for the administration of
this chapter.

Section 1318. Copies of records

Upon payment of the prescribed fee, any person may obtain a certified
copy of any official record of the Office of the Administrator that
relates to this chapter. That copy shall be admissible in evidence with
the same effect as the original.

Section 1319. Correction of errors in certificates

The Administrator may, by a certificate of correction under seal,

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