US (United States) Code. Title 17. Chapter 5: Copyright infringement and remedies

Codificación normativa de EEUU (Estados Unidos) Legislación Federal estadounidense # Copyrights

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-CITE-

17 USC CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

.

-HEAD-

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-MISC1-

Sec.

501. Infringement of copyright.

502. Remedies for infringement: Injunctions.

503. Remedies for infringement: Impounding and disposition of

infringing articles.

504. Remedies for infringement: Damages and profits.

505. Remedies for infringement: Costs and attorney's fees.

506. Criminal offenses.

507. Limitations on actions.

508. Notification of filing and determination of actions.

509. Seizure and forfeiture.

510. Remedies for alteration of programming by cable systems.

511. Liability of States, instrumentalities of States, and State

officials for infringement of copyright.

512. Limitations on liability relating to material online.

513. Determination of reasonable license fees for individual

proprietors.

AMENDMENTS

1999 - Pub. L. 106-113, div. B, Sec. 1000(a)(9) (title I, Sec.

1011(a)(1)), Nov. 29, 1999, 113 Stat. 1536, 1501A-543, substituted

''programming'' for ''programing'' in item 510.

Pub. L. 106-44, Sec. 1(c)(2), Aug. 5, 1999, 113 Stat. 222,

renumbered item 512 ''Determination of reasonable license fees for

individual proprietors'' as 513.

1998 - Pub. L. 105-304, title II, Sec. 202(b), Oct. 28, 1998, 112

Stat. 2886, added item 512 ''Limitations on liability relating to

material online''.

Pub. L. 105-298, title II, Sec. 203(b), Oct. 27, 1998, 112 Stat.

2833, added item 512 ''Determination of reasonable license fees for

individual proprietors''.

1997 - Pub. L. 105-80, Sec. 12(a)(12), Nov. 13, 1997, 105 Stat.

1535, substituted ''Damages'' for ''Damage'' in item 504.

1990 - Pub. L. 101-553, Sec. 2(a)(3), Nov. 15, 1990, 104 Stat.

2750, added item 511.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 104A, 115, 912 of this

title.

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17 USC Sec. 501 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 501. Infringement of copyright

-STATUTE-

(a) Anyone who violates any of the exclusive rights of the

copyright owner as provided by sections 106 through 122 or of the

author as provided in section 106A(a), or who imports copies or

phonorecords into the United States in violation of section 602, is

an infringer of the copyright or right of the author, as the case

may be. For purposes of this chapter (other than section 506), any

reference to copyright shall be deemed to include the rights

conferred by section 106A(a). As used in this subsection, the term

''anyone'' includes any State, any instrumentality of a State, and

any officer or employee of a State or instrumentality of a State

acting in his or her official capacity. Any State, and any such

instrumentality, officer, or employee, shall be subject to the

provisions of this title in the same manner and to the same extent

as any nongovernmental entity.

(b) The legal or beneficial owner of an exclusive right under a

copyright is entitled, subject to the requirements of section 411,

to institute an action for any infringement of that particular

right committed while he or she is the owner of it. The court may

require such owner to serve written notice of the action with a

copy of the complaint upon any person shown, by the records of the

Copyright Office or otherwise, to have or claim an interest in the

copyright, and shall require that such notice be served upon any

person whose interest is likely to be affected by a decision in the

case. The court may require the joinder, and shall permit the

intervention, of any person having or claiming an interest in the

copyright.

(c) For any secondary transmission by a cable system that

embodies a performance or a display of a work which is actionable

as an act of infringement under subsection (c) of section 111, a

television broadcast station holding a copyright or other license

to transmit or perform the same version of that work shall, for

purposes of subsection (b) of this section, be treated as a legal

or beneficial owner if such secondary transmission occurs within

the local service area of that television station.

(d) For any secondary transmission by a cable system that is

actionable as an act of infringement pursuant to section 111(c)(3),

the following shall also have standing to sue: (i) the primary

transmitter whose transmission has been altered by the cable

system; and (ii) any broadcast station within whose local service

area the secondary transmission occurs.

(e) With respect to any secondary transmission that is made by a

satellite carrier of a performance or display of a work embodied in

a primary transmission and is actionable as an act of infringement

under section 119(a)(5), a network station holding a copyright or

other license to transmit or perform the same version of that work

shall, for purposes of subsection (b) of this section, be treated

as a legal or beneficial owner if such secondary transmission

occurs within the local service area of that station.

(f)(1) With respect to any secondary transmission that is made by

a satellite carrier of a performance or display of a work embodied

in a primary transmission and is actionable as an act of

infringement under section 122, a television broadcast station

holding a copyright or other license to transmit or perform the

same version of that work shall, for purposes of subsection (b) of

this section, be treated as a legal or beneficial owner if such

secondary transmission occurs within the local market of that

station.

(2) A television broadcast station may file a civil action

against any satellite carrier that has refused to carry television

broadcast signals, as required under section 122(a)(2), to enforce

that television broadcast station's rights under section 338(a) of

the Communications Act of 1934.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2584;

Pub. L. 100-568, Sec. 10(a), Oct. 31, 1988, 102 Stat. 2860; Pub. L.

100-667, title II, Sec. 202(3), Nov. 16, 1988, 102 Stat. 3957; Pub.

L. 101-553, Sec. 2(a)(1), Nov. 15, 1990, 104 Stat. 2749; Pub. L.

101-650, title VI, Sec. 606(a), Dec. 1, 1990, 104 Stat. 5131; Pub.

L. 106-44, Sec. 1(g)(5), Aug. 5, 1999, 113 Stat. 222; Pub. L.

106-113, div. B, Sec. 1000(a)(9) (title I, Sec. 1002(b),

1011(b)(3)), Nov. 29, 1999, 113 Stat. 1536, 1501A-527, 1501A-544;

Pub. L. 107-273, div. C, title III, Sec. 13210(4)(B), Nov. 2,

2002, 116 Stat. 1909.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The bill, unlike the present law, contains a general statement of

what constitutes infringement of copyright. Section 501(a)

identifies a copyright infringer as someone who ''violates any of

the exclusive rights of the copyright owner as provided by sections

106 through 118'' of the bill, or who imports copies or

phonorecords in violation of section 602. Under the latter section

an unauthorized importation of copies or phonorecords acquired

abroad is an infringement of the exclusive right of distribution

under certain circumstances.

The principle of the divisibility of copyright ownership,

established by section 201(d), carries with it the need in

infringement actions to safeguard the rights of all copyright

owners and to avoid a multiplicity of suits. Subsection (b) of

section 501 enables the owner of a particular right to bring an

infringement action in that owner's name alone, while at the same

time insuring to the extent possible that the other owners whose

rights may be affected are notified and given a chance to join the

action.

The first sentence of subsection (b) empowers the ''legal or

beneficial owner of an exclusive right'' to bring suit for ''any

infringement of that particular right committed while he or she is

the owner of it.'' A ''beneficial owner'' for this purpose would

include, for example, an author who had parted with legal title to

the copyright in exchange for percentage royalties based on sales

or license fees.

The second and third sentences of section 501(b), which

supplement the provisions of the Federal Rules of Civil Procedure

(Title 28, Judiciary and Judicial Procedure), give the courts

discretion to require the plaintiff to serve notice of the

plaintiff's suit on ''any person shown, by the records of the

Copyright Office or otherwise, to have or claim an interest in the

copyright''; where a person's interest ''is likely to be affected

by a decision in the case'' a court order requiring service of

notice is mandatory. As under the Federal rules, the court has

discretion to require joinder of ''any person having or claiming an

interest in the copyright''; but, if any such person wishes to

become a party, the court must permit that person's intervention.

In addition to cases involving divisibility of ownership in the

same version of a work, section 501(b) is intended to allow a court

to permit or compel joinder of the owners of rights in works upon

which a derivative work is based.

Section 501 contains two provisions conferring standing to sue

under the statue upon broadcast stations in specific situations

involving secondary transmissions by cable systems. Under

subsection (c), a local television broadcaster licensed to transmit

a work can sue a cable system importing the same version of the

work into the broadcaster's local service area in violation of

section 111(c). Subsection (d) deals with cases arising under

section 111(c)(3), the provision dealing with substitution or

alteration by a cable system of commercials or other programming;

in such cases standing to sue is also conferred on: (1) the primary

transmitter whose transmission has been altered by the cable

system, and (2) any broadcast stations within whose local service

area the secondary transmission occurs. These provisions are

linked to section 509, a new provision on remedies for alteration

of programming by cable systems, discussed below.

Vicarious Liability for Infringing Performances. The committee

has considered and rejected an amendment to this section intended

to exempt the proprietors of an establishment, such as a ballroom

or night club, from liability for copyright infringement committed

by an independent contractor, such as an orchestra leader. A

well-established principle of copyright law is that a person who

violates any of the exclusive rights of the copyright owner is an

infringer, including persons who can be considered related or

vicarious infringers. To be held a related or vicarious infringer

in the case of performing rights, a defendant must either actively

operate or supervise the operation of the place wherein the

performances occur, or control the content of the infringing

program, and expect commercial gain from the operation and either

direct or indirect benefit from the infringing performance. The

committee has decided that no justification exists for changing

existing law, and causing a significant erosion of the public

performance right.

-REFTEXT-

REFERENCES IN TEXT

Section 338(a) of the Communications Act of 1934, referred to in

subsec. (f)(2), is classified to section 338(a) of Title 47,

Telegraphs, Telephones, and Radiotelegraphs.

-MISC2-

AMENDMENTS

2002 - Subsec. (a). Pub. L. 107-273 substituted ''122'' for

''121''.

1999 - Subsec. (a). Pub. L. 106-44 substituted ''121'' for

''118''.

Subsec. (e). Pub. L. 106-113, Sec. 1000(a)(9) (title I, Sec.

1011(b)(3)), substituted ''performance or display of a work

embodied in a primary transmission'' for ''primary transmission

embodying the performance or display of a work''.

Subsec. (f). Pub. L. 106-113, Sec. 1000(a)(9) (title I, Sec.

1002(b)), added subsec. (f).

1990 - Subsec. (a). Pub. L. 101-650 inserted ''or of the author

as provided in section 106A(a)'' after ''118'' and substituted

''copyright or right of the author, as the case may be. For

purposes of this chapter (other than section 506), any reference to

copyright shall be deemed to include the rights conferred by

section 106A(a).'' for ''copyright.''

Pub. L. 101-553 inserted sentences at end defining ''anyone'' and

providing that any State and any instrumentality, officer, or

employee be subject to the provisions of this title in the same

manner and to the same extent as any nongovernmental entity.

1988 - Subsec. (b). Pub. L. 100-568 substituted ''section 411''

for ''sections 205(d) and 411''.

Subsec. (e). Pub. L. 100-667 added subsec. (e).

EFFECTIVE DATE OF 1999 AMENDMENT

Amendment by section 1000(a)(9) (title I, Sec. 1002(b)) of Pub.

L. 106-113 effective July 1, 1999, and amendment by section

1000(a)(9) (title I, Sec. 1011(b)(3)) of Pub. L. 106-113 effective

Nov. 29, 1999, see section 1000(a)(9) (title I, Sec. 1012) of Pub.

L. 106-113, set out as a note under section 101 of this title.

EFFECTIVE DATE OF 1990 AMENDMENTS

Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,

1990, see section 610 of Pub. L. 101-650, set out as an Effective

Date note under section 106A of this title.

Section 3 of Pub. L. 101-553 provided that: ''The amendments made

by this Act (enacting section 511 of this title and amending this

section and sections 910 and 911 of this title) shall take effect

with respect to violations that occur on or after the date of the

enactment of this Act (Nov. 15, 1990).''

EFFECTIVE DATE OF 1988 AMENDMENTS

Amendment by Pub. L. 100-667 effective Jan. 1, 1989, see section

206 of Pub. L. 100-667, set out as an Effective Date note under

section 119 of this title.

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

CAUSES OF ACTION ARISING UNDER PREDECESSOR PROVISIONS

Section 112 of Pub. L. 94-553 provided that: ''All causes of

action that arose under title 17 before January 1, 1978, shall be

governed by title 17 as it existed when the cause of action

arose.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 109, 111, 115, 119, 122,

411, 510, 602 of this title; title 47 section 338.

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17 USC Sec. 502 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 502. Remedies for infringement: Injunctions

-STATUTE-

(a) Any court having jurisdiction of a civil action arising under

this title may, subject to the provisions of section 1498 of title

28, grant temporary and final injunctions on such terms as it may

deem reasonable to prevent or restrain infringement of a copyright.

(b) Any such injunction may be served anywhere in the United

States on the person enjoined; it shall be operative throughout the

United States and shall be enforceable, by proceedings in contempt

or otherwise, by any United States court having jurisdiction of

that person. The clerk of the court granting the injunction shall,

when requested by any other court in which enforcement of the

injunction is sought, transmit promptly to the other court a

certified copy of all the papers in the case on file in such

clerk's office.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2584.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Section 502(a) (subsec. (a) of this section) reasserts the

discretionary power of courts to grant injunctions and restraining

orders, whether ''preliminary,'' ''temporary,'' ''interlocutory,''

''permanent,'' or ''final,'' to prevent or stop infringements of

copyright. This power is made subject to the provisions of section

1498 of title 28 dealing with infringement actions against the

United States. The latter reference in section 502(a) makes it

clear that the bill would not permit the granting of an injunction

against an infringement for which the Federal Government is liable

under section 1498.

Under subsection (b), which is the counterpart of provisions in

sections 112 and 113 of the present statute (sections 112 and 113

of former title 17), a copyright owner who has obtained an

injunction in one State will be able to enforce it against a

defendant located anywhere else in the United States.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 109, 111, 115, 119, 122,

411, 510, 512, 1101 of this title.

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17 USC Sec. 503 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 503. Remedies for infringement: Impounding and disposition of

infringing articles

-STATUTE-

(a) At any time while an action under this title is pending, the

court may order the impounding, on such terms as it may deem

reasonable, of all copies or phonorecords claimed to have been made

or used in violation of the copyright owner's exclusive rights, and

of all plates, molds, matrices, masters, tapes, film negatives, or

other articles by means of which such copies or phonorecords may be

reproduced.

(b) As part of a final judgment or decree, the court may order

the destruction or other reasonable disposition of all copies or

phonorecords found to have been made or used in violation of the

copyright owner's exclusive rights, and of all plates, molds,

matrices, masters, tapes, film negatives, or other articles by

means of which such copies or phonorecords may be reproduced.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2585.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

The two subsections of section 503 deal respectively with the

courts' power to impound allegedly infringing articles during the

time an action is pending, and to order the destruction or other

disposition of articles found to be infringing. In both cases the

articles affected include ''all copies or phonorecords'' which are

claimed or found ''to have been made or used in violation of the

copyright owner's exclusive rights,'' and also ''all plates, molds,

matrices, masters, tapes, film negatives, or other articles by

means of which such copies of phonorecords may be reproduced.'' The

alternative phrase ''made or used'' in both subsections enables a

court to deal as it sees fit with articles which, though reproduced

and acquired lawfully, have been used for infringing purposes such

as rentals, performances, and displays.

Articles may be impounded under subsection (a) ''at any time

while an action under this title is pending,'' thus permitting

seizures of articles alleged to be infringing as soon as suit has

been filed and without waiting for an injunction. The same

subsection empowers the court to order impounding ''on such terms

as it may deem reasonable.'' The present Supreme Court rules with

respect to seizure and impounding were issued even though there is

no specific provision authorizing them in the copyright statute,

and there appears no need for including a special provision on the

point in the bill.

Under section 101(d) of the present statute (section 101(d) of

former title 17), articles found to be infringing may be ordered to

be delivered up for destruction. Section 503(b) of the bill would

make this provision more flexible by giving the court discretion to

order ''destruction or other reasonable disposition'' of the

articles found to be infringing. Thus, as part of its final

judgment or decree, the court could order the infringing articles

sold, delivered to the plaintiff, or disposed of in some other way

that would avoid needless waste and best serve the ends of justice.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 109, 111, 115, 119, 122,

411, 510, 511, 1101 of this title.

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17 USC Sec. 504 01/06/03

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TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 504. Remedies for infringement: Damages and profits

-STATUTE-

(a) In General. - Except as otherwise provided by this title, an

infringer of copyright is liable for either -

(1) the copyright owner's actual damages and any additional

profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. - The copyright owner is entitled

to recover the actual damages suffered by him or her as a result of

the infringement, and any profits of the infringer that are

attributable to the infringement and are not taken into account in

computing the actual damages. In establishing the infringer's

profits, the copyright owner is required to present proof only of

the infringer's gross revenue, and the infringer is required to

prove his or her deductible expenses and the elements of profit

attributable to factors other than the copyrighted work.

(c) Statutory Damages. -

(1) Except as provided by clause (2) of this subsection, the

copyright owner may elect, at any time before final judgment is

rendered, to recover, instead of actual damages and profits, an

award of statutory damages for all infringements involved in the

action, with respect to any one work, for which any one infringer

is liable individually, or for which any two or more infringers

are liable jointly and severally, in a sum of not less than $750

or more than $30,000 as the court considers just. For the

purposes of this subsection, all the parts of a compilation or

derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of

proving, and the court finds, that infringement was committed

willfully, the court in its discretion may increase the award of

statutory damages to a sum of not more than $150,000. In a case

where the infringer sustains the burden of proving, and the court

finds, that such infringer was not aware and had no reason to

believe that his or her acts constituted an infringement of

copyright, the court in its discretion may reduce the award of

statutory damages to a sum of not less than $200. The court shall

remit statutory damages in any case where an infringer believed

and had reasonable grounds for believing that his or her use of

the copyrighted work was a fair use under section 107, if the

infringer was: (i) an employee or agent of a nonprofit

educational institution, library, or archives acting within the

scope of his or her employment who, or such institution, library,

or archives itself, which infringed by reproducing the work in

copies or phonorecords; or (ii) a public broadcasting entity

which or a person who, as a regular part of the nonprofit

activities of a public broadcasting entity (as defined in

subsection (g) of section 118) infringed by performing a

published nondramatic literary work or by reproducing a

transmission program embodying a performance of such a work.

(d) Additional Damages in Certain Cases. - In any case in which

the court finds that a defendant proprietor of an establishment who

claims as a defense that its activities were exempt under section

110(5) did not have reasonable grounds to believe that its use of a

copyrighted work was exempt under such section, the plaintiff shall

be entitled to, in addition to any award of damages under this

section, an additional award of two times the amount of the license

fee that the proprietor of the establishment concerned should have

paid the plaintiff for such use during the preceding period of up

to 3 years.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2585;

Pub. L. 100-568, Sec. 10(b), Oct. 31, 1988, 102 Stat. 2860; Pub. L.

105-80, Sec. 12(a)(13), Nov. 13, 1997, 111 Stat. 1535; Pub. L.

105-298, title II, Sec. 204, Oct. 27, 1998, 112 Stat. 2833; Pub. L.

106-160, Sec. 2, Dec. 9, 1999, 113 Stat. 1774.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

In General. A cornerstone of the remedies sections and of the

bill as a whole is section 504, the provision dealing with recovery

of actual damages, profits, and statutory damages. The two basic

aims of this section are reciprocal and correlative: (1) to give

the courts specific unambiguous directions concerning monetary

awards, thus avoiding the confusion and uncertainty that have

marked the present law on the subject, and, at the same time, (2)

to provide the courts with reasonable latitude to adjust recovery

to the circumstances of the case, thus avoiding some of the

artificial or overly technical awards resulting from the language

of the existing statute.

Subsection (a) lays the groundwork for the more detailed

provisions of the section by establishing the liability of a

copyright infringer for either ''the copyright owner's actual

damages and any additional profits of the infringer,'' or statutory

damages. Recovery of actual damages and profits under section

504(b) or of statutory damages under section 504(c) is alternative

and for the copyright owner to elect; as under the present law, the

plaintiff in an infringement suit is not obliged to submit proof of

damages and profits and may choose to rely on the provision for

minimum statutory damages. However, there is nothing in section

504 to prevent a court from taking account of evidence concerning

actual damages and profits in making an award of statutory damages

within the range set out in subsection (c).

Actual Damages and Profits. In allowing the plaintiff to recover

''the actual damages suffered by him or her as a result of the

infringement,'' plus any of the infringer's profits ''that are

attributable to the infringement and are not taken into account in

computing the actual damages,'' section 504(b) recognizes the

different purposes served by awards of damages and profits.

Damages are awarded to compensate the copyright owner for losses

from the infringement, and profits are awarded to prevent the

infringer from unfairly benefiting from a wrongful act. Where the

defendant's profits are nothing more than a measure of the damages

suffered by the copyright owner, it would be inappropriate to award

damages and profits cumulatively, since in effect they amount to

the same thing. However, in cases where the copyright owner has

suffered damages not reflected in the infringer's profits, or where

there have been profits attributable to the copyrighted work but

not used as a measure of damages, subsection (b) authorizes the

award of both.

The language of the subsection makes clear that only those

profits ''attributable to the infringement'' are recoverable; where

some of the defendant's profits result from the infringement and

other profits are caused by different factors, it will be necessary

for the court to make an apportionment. However, the burden of

proof is on the defendant in these cases; in establishing profits

the plaintiff need prove only ''the infringer's gross revenue,''

and the defendant must prove not only ''his or her deductible

expenses'' but also ''the element of profit attributable to factors

other than the copyrighted work.''

Statutory Damages. Subsection (c) of section 504 makes clear that

the plaintiff's election to recover statutory damages may take

place at any time during the trial before the court has rendered

its final judgment. The remainder of clause (1) of the subsection

represents a statement of the general rates applicable to awards of

statutory damages. Its principal provisions may be summarized as

follows:

1. As a general rule, where the plaintiff elects to recover

statutory damages, the court is obliged to award between $250 and

$10,000. It can exercise discretion in awarding an amount within

that range but, unless one of the exceptions provided by clause

(2) is applicable, it cannot make an award of less than $250 or

of more than $10,000 if the copyright owner has chosen recovery

under section 504(c).

2. Although, as explained below, an award of minimum statutory

damages may be multiplied if separate works and separately liable

infringers are involved in the suit, a single award in the $250

to $10,000 range is to be made ''for all infringements involved

in the action.'' A single infringer of a single work is liable

for a single amount between $250 and $10,000, no matter how many

acts of infringement are involved in the action and regardless of

whether the acts were separate, isolated, or occurred in a

related series.

3. Where the suit involves infringement of more than one

separate and independent work, minimum statutory damages for each

work must be awarded. For example, if one defendant has

infringed three copyrighted works, the copyright owner is

entitled to statutory damages of at least $750 and may be awarded

up to $30,000. Subsection (c)(1) makes clear, however, that,

although they are regarded as independent works for other

purposes, ''all the parts of a compilation or derivative work

constitute one work'' for this purpose. Moreover, although the

minimum and maximum amounts are to be multiplied where multiple

''works'' are involved in the suit, the same is not true with

respect to multiple copyrights, multiple owners, multiple

exclusive rights, or multiple registrations. This point is

especially important since, under a scheme of divisible

copyright, it is possible to have the rights of a number of

owners of separate ''copyrights'' in a single ''work'' infringed

by one act of a defendant.

4. Where the infringements of one work were committed by a

single infringer acting individually, a single award of statutory

damages would be made. Similarly, where the work was infringed

by two or more joint tortfeasors, the bill would make them

jointly and severally liable for an amount in the $250 to $10,000

range. However, where separate infringements for which two or

more defendants are not jointly liable are joined in the same

action, separate awards of statutory damages would be

appropriate.

Clause (2) of section 504(c) provides for exceptional cases in

which the maximum award of statutory damages could be raised from

$10,000 to $50,000, and in which the minimum recovery could be

reduced from $250 to $100. The basic principle underlying this

provision is that the courts should be given discretion to increase

statutory damages in cases of willful infringement and to lower the

minimum where the infringer is innocent. The language of the

clause makes clear that in these situations the burden of proving

willfulness rests on the copyright owner and that of proving

innocence rests on the infringer, and that the court must make a

finding of either willfulness or innocence in order to award the

exceptional amounts.

The ''innocent infringer'' provision of section 504(c)(2) has

been the subject of extensive discussion. The exception, which

would allow reduction of minimum statutory damages to $100 where

the infringer ''was not aware and had no reason to believe that his

or her acts constituted an infringement of copyright,'' is

sufficient to protect against unwarranted liability in cases of

occasional or isolated innocent infringement, and it offers

adequate insulation to users, such as broadcasters and newspaper

publishers, who are particularly vulnerable to this type of

infringement suit. On the other hand, by establishing a realistic

floor for liability, the provision preserves its intended deterrent

effect; and it would not allow an infringer to escape simply

because the plaintiff failed to disprove the defendant's claim of

innocence.

In addition to the general ''innocent infringer'' provision

clause (2) deals with the special situation of teachers,

librarians, archivists, and public broadcasters, and the nonprofit

institutions of which they are a part. Section 504(c)(2) provides

that, where such a person or institution infringed copyrighted

material in the honest belief that what they were doing constituted

fair use, the court is precluded from awarding any statutory

damages. It is intended that, in cases involving this provision,

the burden of proof with respect to the defendant's good faith

should rest on the plaintiff.

AMENDMENTS

1999 - Subsec. (c)(1). Pub. L. 106-160, Sec. 2(1), substituted

''$750'' for ''$500'' and ''$30,000'' for ''$20,000''.

Subsec. (c)(2). Pub. L. 106-160, Sec. 2(2), substituted

''$150,000'' for ''$100,000''.

1998 - Subsec. (d). Pub. L. 105-298 added subsec. (d).

1997 - Subsec. (c)(2). Pub. L. 105-80 substituted ''the court in

its discretion'' for ''the court it its discretion''.

1988 - Subsec. (c)(1). Pub. L. 100-568, Sec. 10(b)(1),

substituted ''$500'' for ''$250'' and ''$20,000'' for ''$10,000''.

Subsec. (c)(2). Pub. L. 100-568, Sec. 10(b)(2), substituted

''$100,000'' for ''$50,000'' and ''$200'' for ''$100''.

EFFECTIVE DATE OF 1999 AMENDMENT

Pub. L. 106-160, Sec. 4, Dec. 9, 1999, 113 Stat. 1774, provided

that: ''The amendments made by section 2 (amending this section)

shall apply to any action brought on or after the date of the

enactment of this Act (Dec. 9, 1999), regardless of the date on

which the alleged activity that is the basis of the action

occurred.''

EFFECTIVE DATE OF 1998 AMENDMENT

Amendment by Pub. L. 105-298 effective 90 days after Oct. 27,

1998, see section 207 of Pub. L. 105-298, set out as a note under

section 101 of this title.

EFFECTIVE DATE OF 1988 AMENDMENT

Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any

cause of action arising under this title before such date being

governed by provisions in effect when cause of action arose, see

section 13 of Pub. L. 100-568, set out as a note under section 101

of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 109, 111, 115, 119, 122,

401, 402, 405, 411, 412, 510, 511, 1101 of this title; title 28

section 1498.

-CITE-

17 USC Sec. 505 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 505. Remedies for infringement: Costs and attorney's fees

-STATUTE-

In any civil action under this title, the court in its discretion

may allow the recovery of full costs by or against any party other

than the United States or an officer thereof. Except as otherwise

provided by this title, the court may also award a reasonable

attorney's fee to the prevailing party as part of the costs.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2586.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Under section 505 the awarding of costs and attorney's fees are

left to the court's discretion, and the section also makes clear

that neither costs nor attorney's fees can be awarded to or against

''the United States or an officer thereof.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 109, 111, 115, 119, 122,

411, 412, 510, 511, 1101 of this title.

-CITE-

17 USC Sec. 506 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 506. Criminal offenses

-STATUTE-

(a) Criminal Infringement. - Any person who infringes a copyright

willfully either -

(1) for purposes of commercial advantage or private financial

gain, or

(2) by the reproduction or distribution, including by

electronic means, during any 180-day period, of 1 or more copies

or phonorecords of 1 or more copyrighted works, which have a

total retail value of more than $1,000,

shall be punished as provided under section 2319 of title 18,

United States Code. For purposes of this subsection, evidence of

reproduction or distribution of a copyrighted work, by itself,

shall not be sufficient to establish willful infringement.

(b) Forfeiture and Destruction. - When any person is convicted of

any violation of subsection (a), the court in its judgment of

conviction shall, in addition to the penalty therein prescribed,

order the forfeiture and destruction or other disposition of all

infringing copies or phonorecords and all implements, devices, or

equipment used in the manufacture of such infringing copies or

phonorecords.

(c) Fraudulent Copyright Notice. - Any person who, with

fraudulent intent, places on any article a notice of copyright or

words of the same purport that such person knows to be false, or

who, with fraudulent intent, publicly distributes or imports for

public distribution any article bearing such notice or words that

such person knows to be false, shall be fined not more than $2,500.

(d) Fraudulent Removal of Copyright Notice. - Any person who,

with fraudulent intent, removes or alters any notice of copyright

appearing on a copy of a copyrighted work shall be fined not more

than $2,500.

(e) False Representation. - Any person who knowingly makes a

false representation of a material fact in the application for

copyright registration provided for by section 409, or in any

written statement filed in connection with the application, shall

be fined not more than $2,500.

(f) Rights of Attribution and Integrity. - Nothing in this

section applies to infringement of the rights conferred by section

106A(a).

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2586;

Pub. L. 97-180, Sec. 5, May 24, 1982, 96 Stat. 93; Pub. L. 101-650,

title VI, Sec. 606(b), Dec. 1, 1990, 104 Stat. 5131; Pub. L.

105-147, Sec. 2(b), Dec. 16, 1997, 111 Stat. 2678.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Four types of criminal offenses actionable under the bill are

listed in section 506: willful infringement for profit, fraudulent

use of a copyright notice, fraudulent removal of notice, and false

representation in connection with a copyright application. The

maximum fine on conviction has been increased to $10,000 and, in

conformity with the general pattern of the Criminal Code (18

U.S.C.), no minimum fines have been provided. In addition to or

instead of a fine, conviction for criminal infringement under

section 506(a) can carry with it a sentence of imprisonment of up

to one year. Section 506(b) deals with seizure, forfeiture, and

destruction of material involved in cases of criminal infringement.

Section 506(a) contains a special provision applying to any

person who infringes willfully and for purposes of commercial

advantage the copyright in a sound recording or a motion picture.

For the first such offense a person shall be fined not more than

$25,000 or imprisoned for not more than one year, or both. For any

subsequent offense a person shall be fined not more than $50,000 or

imprisoned not more than two years, or both.

AMENDMENTS

1997 - Subsec. (a). Pub. L. 105-147 amended subsec. (a)

generally. Prior to amendment, subsec. (a) read as follows:

''(a) Criminal Infringement. - Any person who infringes a

copyright willfully and for purposes of commercial advantage or

private financial gain shall be punished as provided in section

2319 of title 18.''

1990 - Subsec. (f). Pub. L. 101-650 added subsec. (f).

1982 - Subsec. (a). Pub. L. 97-180 substituted ''shall be

punished as provided in section 2319 of title 18'' for ''shall be

fined not more than $10,000 or imprisoned for not more than one

year, or both: Provided, however, That any person who infringes

willfully and for purposes of commercial advantage or private

financial gain the copyright in a sound recording afforded by

subsections (1), (2), or (3) of section 106 or the copyright in a

motion picture afforded by subsections (1), (3), or (4) of section

106 shall be fined not more than $25,000 or imprisoned for not more

than one year, or both, for the first such offense and shall be

fined not more than $50,000 or imprisoned for not more than two

years, or both, for any subsequent offense''.

EFFECTIVE DATE OF 1990 AMENDMENT

Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,

1990, see section 610 of Pub. L. 101-650, set out as an Effective

Date note under section 106A of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 101, 109, 111, 115, 119,

122, 411, 501, 509 of this title; title 18 section 2319; title 19

section 1595a.

-CITE-

17 USC Sec. 507 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 507. Limitations on actions

-STATUTE-

(a) Criminal Proceedings. - Except as expressly provided

otherwise in this title, no criminal proceeding shall be maintained

under the provisions of this title unless it is commenced within 5

years after the cause of action arose.

(b) Civil Actions. - No civil action shall be maintained under

the provisions of this title unless it is commenced within three

years after the claim accrued.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2586;

Pub. L. 105-147, Sec. 2(c), Dec. 16, 1997, 111 Stat. 2678; Pub. L.

105-304, title I, Sec. 102(e), Oct. 28, 1998, 112 Stat. 2863.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Section 507, which is substantially identical with section 115 of

the present law (section 115 of former title 17), establishes a

three-year statute of limitations for both criminal proceedings and

civil actions. The language of this section, which was adopted by

the act of September 7, 1957 (71 Stat. 633) (Pub. L. 85-313, Sec.

1, Sept. 7, 1957, 71 Stat. 633), represents a reconciliation of

views, and has therefore been left unaltered.

AMENDMENTS

1998 - Subsec. (a). Pub. L. 105-304 substituted ''Except as

expressly provided otherwise in this title, no'' for ''No''.

1997 - Subsec. (a). Pub. L. 105-147 substituted ''5'' for

''three''.

-CITE-

17 USC Sec. 508 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 508. Notification of filing and determination of actions

-STATUTE-

(a) Within one month after the filing of any action under this

title, the clerks of the courts of the United States shall send

written notification to the Register of Copyrights setting forth,

as far as is shown by the papers filed in the court, the names and

addresses of the parties and the title, author, and registration

number of each work involved in the action. If any other

copyrighted work is later included in the action by amendment,

answer, or other pleading, the clerk shall also send a notification

concerning it to the Register within one month after the pleading

is filed.

(b) Within one month after any final order or judgment is issued

in the case, the clerk of the court shall notify the Register of

it, sending with the notification a copy of the order or judgment

together with the written opinion, if any, of the court.

(c) Upon receiving the notifications specified in this section,

the Register shall make them a part of the public records of the

Copyright Office.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2586.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Section 508, which corresponds to some extent with a provision in

the patent law (35 U.S.C. 290), is intended to establish a method

for notifying the Copyright Office and the public of the filing and

disposition of copyright cases. The clerks of the Federal courts

are to notify the Copyright Office of the filing of any copyright

actions and of their final disposition, and the Copyright Office is

to make these notifications a part of its public records.

-CITE-

17 USC Sec. 509 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 509. Seizure and forfeiture

-STATUTE-

(a) All copies or phonorecords manufactured, reproduced,

distributed, sold, or otherwise used, intended for use, or

possessed with intent to use in violation of section 506(a), and

all plates, molds, matrices, masters, tapes, film negatives, or

other articles by means of which such copies or phonorecords may be

reproduced, and all electronic, mechanical, or other devices for

manufacturing, reproducing, or assembling such copies or

phonorecords may be seized and forfeited to the United States.

(b) The applicable procedures relating to (i) the seizure,

summary and judicial forfeiture, and condemnation of vessels,

vehicles, merchandise, and baggage for violations of the customs

laws contained in title 19, (ii) the disposition of such vessels,

vehicles, merchandise, and baggage or the proceeds from the sale

thereof, (iii) the remission or mitigation of such forfeiture, (iv)

the compromise of claims, and (v) the award of compensation to

informers in respect of such forfeitures, shall apply to seizures

and forfeitures incurred, or alleged to have been incurred, under

the provisions of this section, insofar as applicable and not

inconsistent with the provisions of this section; except that such

duties as are imposed upon any officer or employee of the Treasury

Department or any other person with respect to the seizure and

forfeiture of vessels, vehicles, merchandise, and baggage under the

provisions of the customs laws contained in title 19 shall be

performed with respect to seizure and forfeiture of all articles

described in subsection (a) by such officers, agents, or other

persons as may be authorized or designated for that purpose by the

Attorney General.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2587;

Pub. L. 105-80, Sec. 12(a)(14), Nov. 13, 1997, 111 Stat. 1535.)

-MISC1-

AMENDMENTS

1997 - Subsec. (b). Pub. L. 105-80 substituted ''merchandise, and

baggage'' for ''merchandise; and baggage'' before ''under the

provisions of the customs laws''.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 109, 111, 115, 119, 122,

411 of this title; title 18 section 2318; title 19 section 1595a.

-CITE-

17 USC Sec. 510 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 510. Remedies for alteration of programming by cable systems

-STATUTE-

(a) In any action filed pursuant to section 111(c)(3), the

following remedies shall be available:

(1) Where an action is brought by a party identified in

subsections (b) or (c) of section 501, the remedies provided by

sections 502 through 505, and the remedy provided by subsection

(b) of this section; and

(2) When an action is brought by a party identified in

subsection (d) of section 501, the remedies provided by sections

502 and 505, together with any actual damages suffered by such

party as a result of the infringement, and the remedy provided by

subsection (b) of this section.

(b) In any action filed pursuant to section 111(c)(3), the court

may decree that, for a period not to exceed thirty days, the cable

system shall be deprived of the benefit of a statutory license for

one or more distant signals carried by such cable system.

-SOURCE-

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2587;

Pub. L. 106-113, div. B, Sec. 1000(a)(9) (title I, Sec.

1011(a)(1), (3)), Nov. 29, 1999, 113 Stat. 1536, 1501A-543.)

-MISC1-

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 94-1476

Section 509(b) specifies a new discretionary remedy for

alteration of programming by cable systems in violation of section

111(c)(3): the court in such cases may decree that, ''for a period

not to exceed thirty days, the cable system shall be deprived of

the benefit of a compulsory license for one or more distant signals

carried by such cable system.'' The term ''distant signals'' in

this provision is intended to have a meaning consistent with the

definition of ''distant signal equivalent'' in section 111.

Under section 509(a), four types of plaintiffs are entitled to

bring an action in cases of alteration of programming by cable

systems in violation of section 111(c)(3). For regular copyright

owners and local broadcaster-licensees, the full battery of

remedies for infringement would be available. The two new classes

of potential plaintiffs under section 501(d) - the distant-signal

transmitter and other local stations - would be limited to the

following remedies: (i) discretionary injunctions; (ii)

discretionary costs and attorney's fees; (iii) any actual damages

the plaintiff can prove were attributable to the act of altering

program content; and (iv) the new discretionary remedy of

suspension of compulsory licensing.

AMENDMENTS

1999 - Pub. L. 106-113, Sec. 1000(a)(9) (title I, Sec.

1011(a)(1)), substituted ''programming'' for ''programing'' in

section catchline.

Subsec. (b). Pub. L. 106-113, Sec. 1000(a)(9) (title I, Sec.

1011(a)(3)), substituted ''statutory'' for ''compulsory''.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 111, 119, 122, 411, 511

of this title.

-CITE-

17 USC Sec. 511 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 511. Liability of States, instrumentalities of States, and

State officials for infringement of copyright

-STATUTE-

(a) In General. - Any State, any instrumentality of a State, and

any officer or employee of a State or instrumentality of a State

acting in his or her official capacity, shall not be immune, under

the Eleventh Amendment of the Constitution of the United States or

under any other doctrine of sovereign immunity, from suit in

Federal court by any person, including any governmental or

nongovernmental entity, for a violation of any of the exclusive

rights of a copyright owner provided by sections 106 through 122,

for importing copies of phonorecords in violation of section 602,

or for any other violation under this title.

(b) Remedies. - In a suit described in subsection (a) for a

violation described in that subsection, remedies (including

remedies both at law and in equity) are available for the violation

to the same extent as such remedies are available for such a

violation in a suit against any public or private entity other than

a State, instrumentality of a State, or officer or employee of a

State acting in his or her official capacity. Such remedies

include impounding and disposition of infringing articles under

section 503, actual damages and profits and statutory damages under

section 504, costs and attorney's fees under section 505, and the

remedies provided in section 510.

-SOURCE-

(Added Pub. L. 101-553, Sec. 2(a)(2), Nov. 15, 1990, 104 Stat.

2749; amended Pub. L. 106-44, Sec. 1(g)(6), Aug. 5, 1999, 113 Stat.

222; Pub. L. 107-273, div. C, title III, Sec. 13210(4)(C), Nov. 2,

2002, 116 Stat. 1909.)

-MISC1-

AMENDMENTS

2002 - Subsec. (a). Pub. L. 107-273 substituted ''122'' for

''121''.

1999 - Subsec. (a). Pub. L. 106-44 substituted ''121'' for

''119''.

EFFECTIVE DATE

Section effective with respect to violations that occur on or

after Nov. 15, 1990, see section 3 of Pub. L. 101-553, set out as

an Effective Date of 1990 Amendment note under section 501 of this

title.

-CITE-

17 USC Sec. 512 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 512. Limitations on liability relating to material online

-STATUTE-

(a) Transitory Digital Network Communications. - A service

provider shall not be liable for monetary relief, or, except as

provided in subsection (j), for injunctive or other equitable

relief, for infringement of copyright by reason of the provider's

transmitting, routing, or providing connections for, material

through a system or network controlled or operated by or for the

service provider, or by reason of the intermediate and transient

storage of that material in the course of such transmitting,

routing, or providing connections, if -

(1) the transmission of the material was initiated by or at the

direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or

storage is carried out through an automatic technical process

without selection of the material by the service provider;

(3) the service provider does not select the recipients of the

material except as an automatic response to the request of

another person;

(4) no copy of the material made by the service provider in the

course of such intermediate or transient storage is maintained on

the system or network in a manner ordinarily accessible to anyone

other than anticipated recipients, and no such copy is maintained

on the system or network in a manner ordinarily accessible to

such anticipated recipients for a longer period than is

reasonably necessary for the transmission, routing, or provision

of connections; and

(5) the material is transmitted through the system or network

without modification of its content.

(b) System Caching. -

(1) Limitation on liability. - A service provider shall not be

liable for monetary relief, or, except as provided in subsection

(j), for injunctive or other equitable relief, for infringement

of copyright by reason of the intermediate and temporary storage

of material on a system or network controlled or operated by or

for the service provider in a case in which -

(A) the material is made available online by a person other

than the service provider;

(B) the material is transmitted from the person described in

subparagraph (A) through the system or network to a person

other than the person described in subparagraph (A) at the

direction of that other person; and

(C) the storage is carried out through an automatic technical

process for the purpose of making the material available to

users of the system or network who, after the material is

transmitted as described in subparagraph (B), request access to

the material from the person described in subparagraph (A),

if the conditions set forth in paragraph (2) are met.

(2) Conditions. - The conditions referred to in paragraph (1)

are that -

(A) the material described in paragraph (1) is transmitted to

the subsequent users described in paragraph (1)(C) without

modification to its content from the manner in which the

material was transmitted from the person described in paragraph

(1)(A);

(B) the service provider described in paragraph (1) complies

with rules concerning the refreshing, reloading, or other

updating of the material when specified by the person making

the material available online in accordance with a generally

accepted industry standard data communications protocol for the

system or network through which that person makes the material

available, except that this subparagraph applies only if those

rules are not used by the person described in paragraph (1)(A)

to prevent or unreasonably impair the intermediate storage to

which this subsection applies;

(C) the service provider does not interfere with the ability

of technology associated with the material to return to the

person described in paragraph (1)(A) the information that would

have been available to that person if the material had been

obtained by the subsequent users described in paragraph (1)(C)

directly from that person, except that this subparagraph

applies only if that technology -

(i) does not significantly interfere with the performance

of the provider's system or network or with the intermediate

storage of the material;

(ii) is consistent with generally accepted industry

standard communications protocols; and

(iii) does not extract information from the provider's

system or network other than the information that would have

been available to the person described in paragraph (1)(A) if

the subsequent users had gained access to the material

directly from that person;

(D) if the person described in paragraph (1)(A) has in effect

a condition that a person must meet prior to having access to

the material, such as a condition based on payment of a fee or

provision of a password or other information, the service

provider permits access to the stored material in significant

part only to users of its system or network that have met those

conditions and only in accordance with those conditions; and

(E) if the person described in paragraph (1)(A) makes that

material available online without the authorization of the

copyright owner of the material, the service provider responds

expeditiously to remove, or disable access to, the material

that is claimed to be infringing upon notification of claimed

infringement as described in subsection (c)(3), except that

this subparagraph applies only if -

(i) the material has previously been removed from the

originating site or access to it has been disabled, or a

court has ordered that the material be removed from the

originating site or that access to the material on the

originating site be disabled; and

(ii) the party giving the notification includes in the

notification a statement confirming that the material has

been removed from the originating site or access to it has

been disabled or that a court has ordered that the material

be removed from the originating site or that access to the

material on the originating site be disabled.

(c) Information Residing on Systems or Networks At Direction of

Users. -

(1) In general. - A service provider shall not be liable for

monetary relief, or, except as provided in subsection (j), for

injunctive or other equitable relief, for infringement of

copyright by reason of the storage at the direction of a user of

material that resides on a system or network controlled or

operated by or for the service provider, if the service provider

-

(A)(i) does not have actual knowledge that the material or an

activity using the material on the system or network is

infringing;

(ii) in the absence of such actual knowledge, is not aware of

facts or circumstances from which infringing activity is

apparent; or

(iii) upon obtaining such knowledge or awareness, acts

expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly

attributable to the infringing activity, in a case in which the

service provider has the right and ability to control such

activity; and

(C) upon notification of claimed infringement as described in

paragraph (3), responds expeditiously to remove, or disable

access to, the material that is claimed to be infringing or to

be the subject of infringing activity.

(2) Designated agent. - The limitations on liability

established in this subsection apply to a service provider only

if the service provider has designated an agent to receive

notifications of claimed infringement described in paragraph (3),

by making available through its service, including on its website

in a location accessible to the public, and by providing to the

Copyright Office, substantially the following information:

(A) the name, address, phone number, and electronic mail

address of the agent.

(B) other contact information which the Register of

Copyrights may deem appropriate.

The Register of Copyrights shall maintain a current directory of

agents available to the public for inspection, including through

the Internet, in both electronic and hard copy formats, and may

require payment of a fee by service providers to cover the costs

of maintaining the directory.

(3) Elements of notification. -

(A) To be effective under this subsection, a notification of

claimed infringement must be a written communication provided

to the designated agent of a service provider that includes

substantially the following:

(i) A physical or electronic signature of a person

authorized to act on behalf of the owner of an exclusive

right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have

been infringed, or, if multiple copyrighted works at a single

online site are covered by a single notification, a

representative list of such works at that site.

(iii) Identification of the material that is claimed to be

infringing or to be the subject of infringing activity and

that is to be removed or access to which is to be disabled,

and information reasonably sufficient to permit the service

provider to locate the material.

(iv) Information reasonably sufficient to permit the

service provider to contact the complaining party, such as an

address, telephone number, and, if available, an electronic

mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith

belief that use of the material in the manner complained of

is not authorized by the copyright owner, its agent, or the

law.

(vi) A statement that the information in the notification

is accurate, and under penalty of perjury, that the

complaining party is authorized to act on behalf of the owner

of an exclusive right that is allegedly infringed.

(B)(i) Subject to clause (ii), a notification from a

copyright owner or from a person authorized to act on behalf of

the copyright owner that fails to comply substantially with the

provisions of subparagraph (A) shall not be considered under

paragraph (1)(A) in determining whether a service provider has

actual knowledge or is aware of facts or circumstances from

which infringing activity is apparent.

(ii) In a case in which the notification that is provided to

the service provider's designated agent fails to comply

substantially with all the provisions of subparagraph (A) but

substantially complies with clauses (ii), (iii), and (iv) of

subparagraph (A), clause (i) of this subparagraph applies only

if the service provider promptly attempts to contact the person

making the notification or takes other reasonable steps to

assist in the receipt of notification that substantially

complies with all the provisions of subparagraph (A).

(d) Information Location Tools. - A service provider shall not be

liable for monetary relief, or, except as provided in subsection

(j), for injunctive or other equitable relief, for infringement of

copyright by reason of the provider referring or linking users to

an online location containing infringing material or infringing

activity, by using information location tools, including a

directory, index, reference, pointer, or hypertext link, if the

service provider -

(1)(A) does not have actual knowledge that the material or

activity is infringing;

(B) in the absence of such actual knowledge, is not aware of

facts or circumstances from which infringing activity is

apparent; or

(C) upon obtaining such knowledge or awareness, acts

expeditiously to remove, or disable access to, the material;

(2) does not receive a financial benefit directly attributable

to the infringing activity, in a case in which the service

provider has the right and ability to control such activity; and

(3) upon notification of claimed infringement as described in

subsection (c)(3), responds expeditiously to remove, or disable

access to, the material that is claimed to be infringing or to be

the subject of infringing activity, except that, for purposes of

this paragraph, the information described in subsection

(c)(3)(A)(iii) shall be identification of the reference or link,

to material or activity claimed to be infringing, that is to be

removed or access to which is to be disabled, and information

reasonably sufficient to permit the service provider to locate

that reference or link.

(e) Limitation on Liability of Nonprofit Educational

Institutions. - (1) When a public or other nonprofit institution of

higher education is a service provider, and when a faculty member

or graduate student who is an employee of such institution is

performing a teaching or research function, for the purposes of

subsections (a) and (b) such faculty member or graduate student

shall be considered to be a person other than the institution, and

for the purposes of subsections (c) and (d) such faculty member's

or graduate student's knowledge or awareness of his or her

infringing activities shall not be attributed to the institution,

if -

(A) such faculty member's or graduate student's infringing

activities do not involve the provision of online access to

instructional materials that are or were required or recommended,

within the preceding 3-year period, for a course taught at the

institution by such faculty member or graduate student;

(B) the institution has not, within the preceding 3-year

period, received more than two notifications described in

subsection (c)(3) of claimed infringement by such faculty member

or graduate student, and such notifications of claimed

infringement were not actionable under subsection (f); and

(C) the institution provides to all users of its system or

network informational materials that accurately describe, and

promote compliance with, the laws of the United States relating

to copyright.

(2) For the purposes of this subsection, the limitations on

injunctive relief contained in subsections (j)(2) and (j)(3), but

not those in (j)(1), shall apply.

(f) Misrepresentations. - Any person who knowingly materially

misrepresents under this section -

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by

mistake or misidentification,

shall be liable for any damages, including costs and attorneys'

fees, incurred by the alleged infringer, by any copyright owner or

copyright owner's authorized licensee, or by a service provider,

who is injured by such misrepresentation, as the result of the

service provider relying upon such misrepresentation in removing or

disabling access to the material or activity claimed to be

infringing, or in replacing the removed material or ceasing to

disable access to it.

(g) Replacement of Removed or Disabled Material and Limitation on

Other Liability. -

(1) No liability for taking down generally. - Subject to

paragraph (2), a service provider shall not be liable to any

person for any claim based on the service provider's good faith

disabling of access to, or removal of, material or activity

claimed to be infringing or based on facts or circumstances from

which infringing activity is apparent, regardless of whether the

material or activity is ultimately determined to be infringing.

(2) Exception. - Paragraph (1) shall not apply with respect to

material residing at the direction of a subscriber of the service

provider on a system or network controlled or operated by or for

the service provider that is removed, or to which access is

disabled by the service provider, pursuant to a notice provided

under subsection (c)(1)(C), unless the service provider -

(A) takes reasonable steps promptly to notify the subscriber

that it has removed or disabled access to the material;

(B) upon receipt of a counter notification described in

paragraph (3), promptly provides the person who provided the

notification under subsection (c)(1)(C) with a copy of the

counter notification, and informs that person that it will

replace the removed material or cease disabling access to it in

10 business days; and

(C) replaces the removed material and ceases disabling access

to it not less than 10, nor more than 14, business days

following receipt of the counter notice, unless its designated

agent first receives notice from the person who submitted the

notification under subsection (c)(1)(C) that such person has

filed an action seeking a court order to restrain the

subscriber from engaging in infringing activity relating to the

material on the service provider's system or network.

(3) Contents of counter notification. - To be effective under

this subsection, a counter notification must be a written

communication provided to the service provider's designated agent

that includes substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or

to which access has been disabled and the location at which the

material appeared before it was removed or access to it was

disabled.

(C) A statement under penalty of perjury that the subscriber

has a good faith belief that the material was removed or

disabled as a result of mistake or misidentification of the

material to be removed or disabled.

(D) The subscriber's name, address, and telephone number, and

a statement that the subscriber consents to the jurisdiction of

Federal District Court for the judicial district in which the

address is located, or if the subscriber's address is outside

of the United States, for any judicial district in which the

service provider may be found, and that the subscriber will

accept service of process from the person who provided

notification under subsection (c)(1)(C) or an agent of such

person.

(4) Limitation on other liability. - A service provider's

compliance with paragraph (2) shall not subject the service

provider to liability for copyright infringement with respect to

the material identified in the notice provided under subsection

(c)(1)(C).

(h) Subpoena To Identify Infringer. -

(1) Request. - A copyright owner or a person authorized to act

on the owner's behalf may request the clerk of any United States

district court to issue a subpoena to a service provider for

identification of an alleged infringer in accordance with this

subsection.

(2) Contents of request. - The request may be made by filing

with the clerk -

(A) a copy of a notification described in subsection

(c)(3)(A);

(B) a proposed subpoena; and

(C) a sworn declaration to the effect that the purpose for

which the subpoena is sought is to obtain the identity of an

alleged infringer and that such information will only be used

for the purpose of protecting rights under this title.

(3) Contents of subpoena. - The subpoena shall authorize and

order the service provider receiving the notification and the

subpoena to expeditiously disclose to the copyright owner or

person authorized by the copyright owner information sufficient

to identify the alleged infringer of the material described in

the notification to the extent such information is available to

the service provider.

(4) Basis for granting subpoena. - If the notification filed

satisfies the provisions of subsection (c)(3)(A), the proposed

subpoena is in proper form, and the accompanying declaration is

properly executed, the clerk shall expeditiously issue and sign

the proposed subpoena and return it to the requester for delivery

to the service provider.

(5) Actions of service provider receiving subpoena. - Upon

receipt of the issued subpoena, either accompanying or subsequent

to the receipt of a notification described in subsection

(c)(3)(A), the service provider shall expeditiously disclose to

the copyright owner or person authorized by the copyright owner

the information required by the subpoena, notwithstanding any

other provision of law and regardless of whether the service

provider responds to the notification.

(6) Rules applicable to subpoena. - Unless otherwise provided

by this section or by applicable rules of the court, the

procedure for issuance and delivery of the subpoena, and the

remedies for noncompliance with the subpoena, shall be governed

to the greatest extent practicable by those provisions of the

Federal Rules of Civil Procedure governing the issuance, service,

and enforcement of a subpoena duces tecum.

(i) Conditions for Eligibility. -

(1) Accommodation of technology. - The limitations on liability

established by this section shall apply to a service provider

only if the service provider -

(A) has adopted and reasonably implemented, and informs

subscribers and account holders of the service provider's

system or network of, a policy that provides for the

termination in appropriate circumstances of subscribers and

account holders of the service provider's system or network who

are repeat infringers; and

(B) accommodates and does not interfere with standard

technical measures.

(2) Definition. - As used in this subsection, the term

''standard technical measures'' means technical measures that are

used by copyright owners to identify or protect copyrighted works

and -

(A) have been developed pursuant to a broad consensus of

copyright owners and service providers in an open, fair,

voluntary, multi-industry standards process;

(B) are available to any person on reasonable and

nondiscriminatory terms; and

(C) do not impose substantial costs on service providers or

substantial burdens on their systems or networks.

(j) Injunctions. - The following rules shall apply in the case of

any application for an injunction under section 502 against a

service provider that is not subject to monetary remedies under

this section:

(1) Scope of relief. - (A) With respect to conduct other than

that which qualifies for the limitation on remedies set forth in

subsection (a), the court may grant injunctive relief with

respect to a service provider only in one or more of the

following forms:

(i) An order restraining the service provider from providing

access to infringing material or activity residing at a

particular online site on the provider's system or network.

(ii) An order restraining the service provider from providing

access to a subscriber or account holder of the service

provider's system or network who is engaging in infringing

activity and is identified in the order, by terminating the

accounts of the subscriber or account holder that are specified

in the order.

(iii) Such other injunctive relief as the court may consider

necessary to prevent or restrain infringement of copyrighted

material specified in the order of the court at a particular

online location, if such relief is the least burdensome to the

service provider among the forms of relief comparably effective

for that purpose.

(B) If the service provider qualifies for the limitation on

remedies described in subsection (a), the court may only grant

injunctive relief in one or both of the following forms:

(i) An order restraining the service provider from providing

access to a subscriber or account holder of the service

provider's system or network who is using the provider's

service to engage in infringing activity and is identified in

the order, by terminating the accounts of the subscriber or

account holder that are specified in the order.

(ii) An order restraining the service provider from providing

access, by taking reasonable steps specified in the order to

block access, to a specific, identified, online location

outside the United States.

(2) Considerations. - The court, in considering the relevant

criteria for injunctive relief under applicable law, shall

consider -

(A) whether such an injunction, either alone or in

combination with other such injunctions issued against the same

service provider under this subsection, would significantly

burden either the provider or the operation of the provider's

system or network;

(B) the magnitude of the harm likely to be suffered by the

copyright owner in the digital network environment if steps are

not taken to prevent or restrain the infringement;

(C) whether implementation of such an injunction would be

technically feasible and effective, and would not interfere

with access to noninfringing material at other online

locations; and

(D) whether other less burdensome and comparably effective

means of preventing or restraining access to the infringing

material are available.

(3) Notice and ex parte orders. - Injunctive relief under this

subsection shall be available only after notice to the service

provider and an opportunity for the service provider to appear

are provided, except for orders ensuring the preservation of

evidence or other orders having no material adverse effect on the

operation of the service provider's communications network.

(k) Definitions. -

(1) Service provider. - (A) As used in subsection (a), the term

''service provider'' means an entity offering the transmission,

routing, or providing of connections for digital online

communications, between or among points specified by a user, of

material of the user's choosing, without modification to the

content of the material as sent or received.

(B) As used in this section, other than subsection (a), the

term ''service provider'' means a provider of online services or

network access, or the operator of facilities therefor, and

includes an entity described in subparagraph (A).

(2) Monetary relief. - As used in this section, the term

''monetary relief'' means damages, costs, attorneys' fees, and

any other form of monetary payment.

(l) Other Defenses Not Affected. - The failure of a service

provider's conduct to qualify for limitation of liability under

this section shall not bear adversely upon the consideration of a

defense by the service provider that the service provider's conduct

is not infringing under this title or any other defense.

(m) Protection of Privacy. - Nothing in this section shall be

construed to condition the applicability of subsections (a) through

(d) on -

(1) a service provider monitoring its service or affirmatively

seeking facts indicating infringing activity, except to the

extent consistent with a standard technical measure complying

with the provisions of subsection (i); or

(2) a service provider gaining access to, removing, or

disabling access to material in cases in which such conduct is

prohibited by law.

(n) Construction. - Subsections (a), (b), (c), and (d) describe

separate and distinct functions for purposes of applying this

section. Whether a service provider qualifies for the limitation

on liability in any one of those subsections shall be based solely

on the criteria in that subsection, and shall not affect a

determination of whether that service provider qualifies for the

limitations on liability under any other such subsection.

-SOURCE-

(Added Pub. L. 105-304, title II, Sec. 202(a), Oct. 28, 1998, 112

Stat. 2877; amended Pub. L. 106-44, Sec. 1(d), Aug. 5, 1999, 113

Stat. 222.)

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in subsec.

(h)(6), are set out in the Appendix to Title 28, Judiciary and

Judicial Procedure.

-COD-

CODIFICATION

Another section 512 was renumbered section 513 of this title.

-MISC3-

AMENDMENTS

1999 - Subsec. (e). Pub. L. 106-44, Sec. 1(d)(1)(A), substituted

''Limitation on Liability of Nonprofit Educational Institutions''

for ''Limitation on liability of nonprofit educational

institutions'' in heading.

Subsec. (e)(2). Pub. L. 106-44, Sec. 1(d)(1)(B), struck out par.

heading ''Injunctions''.

Subsec. (j)(3). Pub. L. 106-44, Sec. 1(d)(2), substituted

''Notice and ex parte orders'' for ''Notice and Ex Parte Orders''

in heading.

EFFECTIVE DATE

Pub. L. 105-304, title II, Sec. 203, Oct. 28, 1998, 112 Stat.

2886, provided that: ''This title (enacting this section and

provisions set out as a note under section 101 of this title) and

the amendments made by this title shall take effect on the date of

the enactment of this Act (Oct. 28, 1998).''

-CITE-

17 USC Sec. 513 01/06/03

-EXPCITE-

TITLE 17 - COPYRIGHTS

CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES

-HEAD-

Sec. 513. Determination of reasonable license fees for individual

proprietors

-STATUTE-

In the case of any performing rights society subject to a consent

decree which provides for the determination of reasonable license

rates or fees to be charged by the performing rights society,

notwithstanding the provisions of that consent decree, an

individual proprietor who owns or operates fewer than 7

non-publicly traded establishments in which nondramatic musical

works are performed publicly and who claims that any license

agreement offered by that performing rights society is unreasonable

in its license rate or fee as to that individual proprietor, shall

be entitled to determination of a reasonable license rate or fee as

follows:

(1) The individual proprietor may commence such proceeding for

determination of a reasonable license rate or fee by filing an

application in the applicable district court under paragraph (2)

that a rate disagreement exists and by serving a copy of the

application on the performing rights society. Such proceeding

shall commence in the applicable district court within 90 days

after the service of such copy, except that such 90-day

requirement shall be subject to the administrative requirements

of the court.

(2) The proceeding under paragraph (1) shall be held, at the

individual proprietor's election, in the judicial district of the

district court with jurisdiction over the applicable consent

decree or in that place of holding court of a district court that

is the seat of the Federal circuit (other than the Court of

Appeals for the Federal Circuit) in which the proprietor's

establishment is located.

(3) Such proceeding shall be held before the judge of the court

with jurisdiction over the consent decree governing the

performing rights society. At the discretion of the court, the

proceeding shall be held before a special master or magistrate

judge appointed by such judge. Should that consent decree

provide for the appointment of an advisor or advisors to the

court for any purpose, any such advisor shall be the special

master so named by the court.

(4) In any such proceeding, the industry rate shall be presumed

to have been reasonable at the time it was agreed to or

determined by the court. Such presumption shall in no way affect

a determination of whether the rate is being correctly applied to

the individual proprietor.

(5) Pending the completion of such proceeding, the individual

proprietor shall have the right to perform publicly the

copyrighted musical compositions in the repertoire of the

performing rights society by paying an interim license rate or

fee into an interest bearing escrow account with the clerk of the

court, subject to retroactive adjustment when a final rate or fee

has been determined, in an amount equal to the industry rate, or,

in the absence of an industry rate, the amount of the most recent

license rate or fee agreed to by the parties.

(6) Any decision rendered in such proceeding by a special

master or magistrate judge named under paragraph (3) shall be

reviewed by the judge of the court with jurisdiction over the

consent decree governing the performing rights society. Such

proceeding, including such review, shall be concluded within 6

months after its commencement.

(7) Any such final determination shall be binding only as to

the individual proprietor commencing the proceeding, and shall

not be applicable to any other proprietor or any other performing

rights society, and the performing rights society shall be

relieved of any obligation of nondiscrimination among similarly

situated music users that may be imposed by the consent decree

governing its operations.

(8) An individual proprietor may not bring more than one

proceeding provided for in this section for the determination of

a reasonable license rate or fee under any license agreement with

respect to any one performing rights society.

(9) For purposes of this section, the term ''industry rate''

means the license fee a performing rights society has agreed to

with, or which has been determined by the court for, a

significant segment of the music user industry to which the

individual proprietor belongs.

-SOURCE-

(Added Pub. L. 105-298, title II, Sec. 203(a), Oct. 27, 1998, 112

Stat. 2831, Sec. 512; renumbered Sec. 513, Pub. L. 106-44, Sec.

1(c)(1), Aug. 5, 1999, 113 Stat. 221.)

-MISC1-

AMENDMENTS

1999 - Pub. L. 106-44 renumbered section 512 of this title as

this section.

EFFECTIVE DATE

Section effective 90 days after Oct. 27, 1998, see section 207 of

Pub. L. 105-298, set out as an Effective Date of 1998 Amendments

note under section 101 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 101 of this title.

-CITE-