U.S.A. Copyright Law, Library of Congress. Copyright Office [reading diary TXT] 📗

the statement of account and royalty fee

required by subsection (b), or has failed to make the submissions to

networks required by paragraph (2)(C).

(4) Willful alterations. Notwithstanding the provisions of paragraphs

(1) and (2), the secondary transmission to the public by a satellite

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

transmission made by a superstation or a network station is actionable

as an act of infringement under section 501, and is fully subject to the

remedies provided by sections 502 through 506 and sections 509 and 510,

if the content of the particular program in which the performance or

display is embodied, or any commercial advertising or station

announcement transmitted by the primary transmitter during, or

immediately before or after, the transmission of such program, is in any

way willfully altered by the satellite carrier through changes,

deletions, or additions, or is combined with programming from any other

broadcast signal.

(5) Violation of territorial restrictions on statutory license for

network stations.-

(A) Individual violations. The willful or repeated secondary

transmission by a satellite carrier of a primary transmission made by a

network station and embodying a performance or display of a work to a

subscriber who does not reside in an unserved household is actionable as

an act of infringement under section 501 and is fully subject to the

remedies provided by sections 502 through 506 and 509, except that-

(i) no damages shall be awarded for such act of infringement if the

satellite carrier took corrective action by promptly withdrawing service

from the ineligible subscriber, and

(ii) any statutory damages shall not exceed $5 for such subscriber for

each month during which the violation occurred.

(B) Pattern of violations. If a satellite carrier engages in a willful

or repeated pattern or practice of delivering a primary transmission

made by a network station and embodying a performance or display of a

work to subscribers who do not reside in unserved households, then in

addition to the remedies set forth in subparagraph (A)-

(i) if the pattern or practice has been carried out on a substantially

nationwide basis, the court shall order a permanent injunction barring

the secondary transmission by the satellite carrier, for private home

viewing, of the primary transmissions of any primary network station

affiliated with the same network, and the court may order statutory

damages of not to exceed $250,000 for each 6-month period during which

the pattern or practice was carried out; and

(ii) if the pattern or practice has been carried out on a local or

regional basis, the court shall order a permanent injunction barring the

secondary transmission, for private home viewing in that locality or

region, by the satellite carrier of the primary transmissions of any

primary network station affiliated with the same network, and the court

may order statutory damages of not to exceed $250,000 for each 6-month

period during which the pattern or practice was carried out.

(C) Previous subscribers excluded. Subparagraphs (A) and (B) do not

apply to secondary transmissions by a satellite carrier to persons who

subscribed to receive such secondary transmissions from the satellite

carrier or a distributor before November 16, 1988.

(D) Burden of proof. [57] In any action brought under this paragraph,

the satellite carrier shall have the burden of proving that its

secondary transmission of a primary transmission by a network station is

for private home viewing to an unserved household.

(E) Exception. The secondary transmission by a satellite carrier of a

performance or display of a work embodied in a primary transmission made

by a network station to subscribers who do not reside in unserved

households shall not be an act of infringement if-

(i) the station on May 1, 1991, was retransmitted by a satellite carrier

and was not on that date owned or operated by or affiliated with a

television network that offered interconnected program service on a

regular basis for 15 or more hours per week to at least 25 affiliated

television licensees in 10 or more States;

(ii) as of July 1, 1998, such station was retransmitted by a satellite

carrier under the statutory license of this section; and

(iii) the station is not owned or operated by or affiliated with a

television network that, as of January 1, 1995, offered interconnected

program service on a regular basis for 15 or more hours per week to at

least 25 affiliated television licensees in 10 or more States.

(6) Discrimination by a satellite carrier. Notwithstanding the

provisions of paragraph (1), the willful or repeated secondary

transmission to the public by a satellite carrier of [a] performance or

display of a work embodied in a primary transmission made by a

superstation or a network station is actionable as an act of

infringement under section 501, and is fully subject to the remedies

provided by sections 502 through 506 and 509, if the satellite carrier

unlawfully discriminates against a distributor. [58]

(7) Geographic limitation on secondary transmissions. The statutory

license created by this section shall apply only to secondary

transmissions to households located in the United States.

(8) Transitional signal intensity measurement procedures. [59]

(A) In general. Subject to subparagraph (C), upon a challenge by a

network station regarding whether a subscriber is an unserved household

within the predicted Grade B Contour of the station, the satellite

carrier shall, within 60 days after the receipt of the challenge-

(i) terminate service to that household of the signal that is the

subject of the challenge, and within 30 days thereafter notify the

network station that made the challenge that service to that household

has been terminated; or

(ii) conduct a measurement of the signal intensity of the subscriber's

household to determine whether the household is an unserved household

after giving reasonable notice to the network station of the satellite

carrier's intent to conduct the measurement.

(B) Effect of measurement. If the satellite carrier conducts a signal

intensity measurement under subparagraph (A) and the measurement

indicates that-

(i) the household is not an unserved household, the satellite carrier

shall, within 60 days after the measurement is conducted, terminate the

service to that household of the signal that is the subject of the

challenge, and within 30 days thereafter notify the network station that

made the challenge that service to that household has been terminated;

or

(ii) the household is an unserved household, the station challenging the

service shall reimburse the satellite carrier for the costs of the

signal measurement within 60 days after receipt of the measurement

results and a statement of the costs of the measurement.

(C) Limitation on measurements.-

(i) Notwithstanding subparagraph (A), a satellite carrier may not be

required to conduct signal intensity measurements during any calendar

year in excess of 5 percent of the number of subscribers within the

network station's local market that have subscribed to the service as of

the effective date of the Satellite Home Viewer Act of 1994.

(ii) If a network station challenges whether a subscriber is an unserved

household in excess of 5 percent of the subscribers within the network

station's local market within a calendar year, subparagraph (A) shall

not apply to challenges in excess of such 5 percent, but the station may

conduct its own signal intensity measurement of the subscriber's

household after giving reasonable notice to the satellite carrier of the

network station's intent to conduct the measurement. If such measurement

indicates that the household is not an unserved household, the carrier

shall, within 60 days after receipt of the measurement, terminate

service to the household of the signal that is the subject of the

challenge and within 30 days thereafter notify the network station that

made the challenge that service has been terminated. The carrier shall

also, within 60 days after receipt of the measurement and a statement of

the costs of the measurement, reimburse the network station for the cost

it incurred in conducting the measurement.

(D) Outside the predicted grade b contour.-

(i) If a network station challenges whether a subscriber is an unserved

household outside the predicted Grade B Contour of the station, the

station may conduct a measurement of the signal intensity of the

subscriber's household to determine whether the household is an unserved

household after giving reasonable notice to the satellite carrier of the

network station's intent to conduct the measurement.

(ii) If the network station conducts a signal intensity measurement

under clause (i) and the measurement indicates that-

(I) the household is not an unserved household, the station shall

forward the results to the satellite carrier who shall, within 60 days

after receipt of the measurement, terminate the service to the household

of the signal that is the subject of the challenge, and shall reimburse

the station for the costs of the measurement within 60 days after

receipt of the measurement results and a statement of such costs; or

(II) the household is an unserved household, the station shall pay the

costs of the measurement.

(9) Loser pays for signal intensity measurement; recovery of measurement

costs in a civil action. In any civil action filed relating to the

eligibility of subscribing households as unserved households-

(A) a network station challenging such eligibility shall, within 60 days

after receipt of the measurement results and a statement of such costs,

reimburse the satellite carrier for any signal intensity measurement

that is conducted by that carrier in response to a challenge by the

network station and that establishes the household is an unserved

household; and

(B) a satellite carrier shall, within 60 days after receipt of the

measurement results and a statement of such costs, reimburse the network

station challenging such eligibility for any signal intensity

measurement that is conducted by that station and that establishes the

household is not an unserved household.

(10) inability to conduct measurement. If a network station makes a

reasonable attempt to conduct a site measurement of its signal at a

subscriber's household and is denied access for the purpose of

conducting the measurement, and is otherwise unable to conduct a

measurement, the satellite carrier shall within 60 days notice thereof,

terminate service of the station's network to that household.

(11) Service to recreational vehicles and commercial trucks.-

(A) Exemption.-

(i) In general. For purposes of this subsection, and subject to clauses

(ii) and (iii), the term "unserved household" shall include-

(I) recreational vehicles as defined in regulations of the Secretary of

Housing and Urban Development under section 3282.8 of title 24 of the

Code of Federal Regulations; and

(II) commercial trucks that qualify as commercial motor vehicles under

regulations of the Secretary of Transportation under section 383.5 of

title 49 of the Code of Federal Regulations.

(ii) Limitation. Clause (i) shall apply only to a recreational vehicle

or commercial truck if any satellite carrier that proposes to make a

secondary transmission of a network station to the operator of such a

recreational vehicle or commercial truck complies with the documentation

requirements under subparagraphs (B) and (C).

(iii) Exclusion. For purposes of this subparagraph, the terms

"recreational vehicle" and "commercial truck" shall not include any

fixed dwelling, whether a mobile home or otherwise.

(B) Documentation requirements. A recreational vehicle or commercial

truck shall be deemed to be an unserved household beginning 10 days

after the relevant satellite carrier provides to the network that owns

or is affiliated with the network station that will be secondarily

transmitted to the recreational vehicle or commercial truck the

following documents:

(i) Declaration. A signed declaration by the operator of the

recreational vehicle or commercial truck that the satellite dish is

permanently attached to the recreational vehicle or commercial truck,

and will not be used to receive satellite programming at any fixed

dwelling.

(ii) Registration. In the case of a recreational vehicle, a copy of the

current State vehicle registration for the recreational vehicle.

(iii) Registration and license. In the case