|HR 5211, a bill to to limit the
liability of copyright claimants for protecting their works on
Sponsor: Rep. Howard Berman (D-CA).
Date Introduced: July 25, 2002.
Source: Office of Rep. Berman.
2D SESSION H. R. __
IN THE HOUSE OF REPRESENTATIVES
Mr. BERMAN (for himself, Mr. COBLE, Mr. SMITH of Texas, and Mr. WEXLER) introduced the following bill; which was referred to the Committee on ____
To amend title 17, United States Code, to limit the liability of copyright owners for protecting their works on peer-to-peer networks.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. LIMITATION ON LIABILITY FOR PROTECTION OF COPYRIGHTED WORKS ON PEER-TO-PEER NETWORKS.
(a) IN GENERAL.—Chapter 5 of title 17, United States Code, is amended by adding at the end the following new section:
‘‘§ 514. Remedies for infringement: use of technologies to prevent infringement of copyrighted works on peer-to-peer computer networks
‘‘(a) IN GENERAL.—Notwithstanding any State or Federal statute or other law, and subject to the limitations set forth in subsections (b) and (c), a copyright owner shall not be liable in any criminal or civil action for disabling, interfering with, blocking, diverting, or otherwise impairing the unauthorized distribution, display, performance, or reproduction of his or her copyrighted work on a publicly accessible peer-to-peer file trading network, if such impairment does not, without authorization, alter, delete, or otherwise impair the integrity of any computer file or data residing on the computer of a file trader.
‘‘(b) EXCEPTIONS.—Subsection (a) shall not apply to a copyright owner in a case in which—
‘‘(1) in the course of taking an action permitted by subsection (a), the copyright owner—
‘‘(A) impairs the availability within a publicly accessible peer-to-peer file trading network of a computer file or data that does not contain a work, or portion thereof, in which the copyright owner has an exclusive right granted under section 106, except as may be reasonably necessary to impair the distribution, display, performance, or reproduction of such a work, or portion thereof, in violation of any of the exclusive rights of the copyright owner under section 106;
‘‘(B) causes economic loss to any person other than affected file traders; or
‘‘(C) causes economic loss of more than $50.00 per impairment to the property of the affected file trader, other than economic loss involving computer files or data made available through a publicly accessible peer-to-peer file trading network that contain works in which the owner has an exclusive right granted under section 106; or
‘‘(2) the copyright owner fails to comply with the requirements of subsection (c).
‘‘(c) NOTIFICATION REQUIREMENT.—(1) A copyright owner shall not be liable under subsection (a) for an act to which subsection (a) applies only if—
‘‘(A) the copyright owner has notified the Department of Justice, in such manner as the Attorney General shall specify, of the specific technologies the copyright owner intends to use to impair the unauthorized distribution, display, performance, or reproduction of the owner's copyrighted works over a publicly accessible peer-to-peer file trading network; and
‘‘(B) the notification under paragraph (1) was made at least 7 days before the copyright owner engaged in the act.
‘‘(2) At the request of an affected file trader or the assignee of an Internet Protocol address used by an affected file trader, a copyright owner shall provide notice to the affected file trader or assignee (as the case may be) of—
‘‘(A) the reason for impairing trading in the computer file or data containing the copyrighted work of the copyright owner;
‘‘(B) the name and address of the copyright owner; and
‘‘(C) the right of the affected file trader to bring an action described in subsection (d).
‘‘(3) The notification by a copyright owner under paragraph (1) shall not be construed for any purpose as an admission of an unlawful act.
‘‘(d) CAUSE OF ACTION FOR WRONGFUL IMPAIRMENT.—(1) If, pursuant to the authority provided by subsection (a), a copyright owner knowingly and intentionally impairs the distribution, display, performance, or reproduction of a particular computer file or data, and has no reasonable basis to believe that such distribution, display, performance, or reproduction constitutes an infringement of copyright, and an affected file trader suffers economic loss in excess of $250 as a result of the act by the copyright owner, the affected file trader may seek compensation for such economic loss in accordance with the following:
‘‘(A) The affected file trader may file a claim for such compensation with the Attorney General not later than 1 year after the date on which the claim accrues. The Attorney General shall, not later than 10 days after the claim is filed, serve notice of the claim on the copyright owner against whom the claim is brought, and shall investigate the claim. The claim shall be in writing under oath or affirmation and shall contain such information and be in such form as the Attorney General requires. The claim shall not be made public by the Attorney General.
‘‘(B) If the Attorney General determines after such investigation that there is not reasonable cause to believe that the facts alleged in the claim are true, the Attorney General shall dismiss the claim and promptly notify the affected file trader and the copyright owner against whom the claim is brought of the Attorney General’s action.
‘‘(C) If the Attorney General determines after such investigation that there is reasonable cause to believe that the facts alleged in the claim are true, the Attorney General shall promptly notify the affected file trader and the copyright owner of the Attorney General’s determination.
‘‘(D) The Attorney General shall make the determination on reasonable cause as promptly as possible, but in no case later than 120 days after the date on which the claim is filed.
‘‘(E) The affected file trader may seek compensation for the economic loss that is the subject of the claim, plus reasonable attorney’s fees, in the appropriate United States district court by filing an action in such court—
‘‘(i) not later than 60 days after being notified of the Attorney General’s determination under subparagraph (C); or
‘‘(ii) if the Attorney General has not made a determination on the claim within the 120-day period specified in subparagraph (D), not later than 60 days after the end of that 120-day period.
‘‘(2) The cause of action established by this subsection shall only be available as a remedy against impairing actions that would not be lawful but for subsection (a).
‘‘(e) SUITS BY UNITED STATES.—The Attorney General of the United States may seek injunctive relief in the appropriate United States district court to prevent a copyright owner from engaging in impairing activities that would not be lawful but for subsection (a) if that owner has engaged in a pattern or practice of impairing the distribution, display, performance, or reproduction of computer files or data without a reasonable basis to believe that infringement of copyright has occurred.
‘‘(f) CONSTRUCTION WITH OTHER STATUTES.—(1) Nothing in this section shall be construed as limiting the authority of a copyright owner to take any otherwise lawful action to enforce any of the exclusive rights granted by section 106.
‘‘(2) Nothing in this section shall limit any remedies available to a person under section 1030 of title 18, or under any other State or Federal statute or any other law, against a copyright owner who fails to qualify for the protections afforded under subsection (a).
‘‘(3) Actions taken by a copyright owner pursuant to subsection (a) shall not be considered by a court for any other purpose under this title, including in determining whether a particular use of a work is infringing.
‘‘(g) NONDISCLOSURE OF INFORMATION.—Information contained in any notification under subsection (c)(1)(A) may not be made available to the public under section 552 of title 5.
‘‘(h) DEFINITIONS.—In this section—
‘‘(1) the term ‘economic loss’ means monetary costs only;
‘‘(2) ‘peer-to-peer file trading network’ means two or more computers which are connected by computer software that—
‘‘(A) is primarily designed to—
‘‘(i) enable the connected computers to transmit files or data to other connected computers;
‘‘(ii) enable the connected computers to request the transmission of files or data from other connected computers; and
‘‘(iii) enable the designation of files or data on the connected computers as available for transmission; and
‘‘(B) does not permanently route all file or data inquiries or searches through a designated, central computer located in the United States;
‘‘(3) a peer-to-peer file trading network is ‘publicly accessible’ if—
‘‘(A) participation in the network is substantially open to the public; and
‘‘(B) the network enables the transmission of computer files or data over the Internet or any other public network of computers;
‘‘(4) the term ‘file trader’ means an individual who is utilizing a publicly accessible, peer-to-peer file trading network to transmit, make available for transmission, or download computer files or data, or the owner of a computer that is connected to a publicly accessible, peer-to-peer file trading network and is engaged in the transmission of computer files or data through the peer-to-peer file trading network;
‘‘(5) the term ‘distribution’, in the case of a computer connected to a peer-to-peer file trading network, includes the placement of a computer file or data in an area of a computer that is accessible to other computers connected to the peer-to-peer file trading network; and
‘‘(6) the term ‘copyright owner’ means a legal or beneficial owner of an exclusive right under section 106 and any party authorized to act on the owner’s behalf.’’.
(b) CONFORMING AMENDMENT.—The table of sections for chapter 5 of title 17, United States Code, is amended by adding at the end the following new item:
‘‘514. Remedies for infringement: use of technologies to prevent infringement of copyrighted works on peer-to-peer computer networks.’’.