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

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.

Section 513. Determination of reasonable license fees for individual

proprietors [10]

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

which provides for the determination of reasonable license rates or fees

to be charged by the performing rights society, notwithstanding the

provisions of that consent decree, an individual proprietor who owns or

operates fewer than 7 non-publicly traded establishments in which

nondramatic musical works are performed publicly and who claims that any

license agreement offered by that performing rights society is

unreasonable in its license rate or fee as to that individual

proprietor, shall be entitled to determination of a reasonable license

rate or fee as follows:

(1) The individual proprietor may commence such proceeding for

determination of a reasonable license rate or fee by filing an

application in the applicable district court under paragraph (2) that a

rate disagreement exists and by serving a copy of the application on the

performing rights society. Such proceeding shall commence in the

applicable district court within 90 days after the service of such copy,

except that such 90-day requirement shall be subject to the

administrative requirements of the court.

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

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

with jurisdiction over the applicable consent decree or in that place of

holding court of a district court that is the seat of the Federal

circuit (other than the Court of Appeals for the Federal Circuit) in

which the proprietor's establishment is located.

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

jurisdiction over the consent decree governing the performing rights

society. At the discretion of the court, the proceeding shall be held

before a special master or magistrate judge appointed by such judge.

Should that consent decree provide for the appointment of an advisor or

advisors to the court for any purpose, any such advisor shall be the

special master so named by the court.

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

been reasonable at the time it was agreed to or determined by the court.

Such presumption shall in no way affect a determination of whether the

rate is being correctly applied to the individual proprietor.

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

shall have the right to perform publicly the copyrighted musical

compositions in the repertoire of the performing rights society by

paying an interim license rate or fee into an interest bearing escrow

account with the clerk of the court, subject to retroactive adjustment

when a final rate or fee has been determined, in an amount equal to the

industry rate, or, in the absence of an industry rate, the amount of the

most recent license rate or fee agreed to by the parties.

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

magistrate judge named under paragraph (3) shall be reviewed by the

judge of the court with jurisdiction over the consent decree governing

the performing rights society. Such proceeding, including such review,

shall be concluded within 6 months after its commencement.

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

individual proprietor commencing the proceeding, and shall not be

applicable to any other proprietor or any other performing rights

society, and the performing rights society shall be relieved of any

obligation of nondiscrimination among similarly situated music users

that may be imposed by the consent decree governing its operations.

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

provided for in this section for the determination of a reasonable

license rate or fee under any license agreement with respect to any one

performing rights society.

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

license fee a performing rights society has agreed to with, or which has

been determined by the court for, a significant segment of the music

user industry to which the individual proprietor belongs.

Chapter 5 Endnotes

1 Concerning the liability of the United States Government for

copyright infringement, see 28 U.S.C. 1498. Title 28 of the *United

States Code* is entitled "Judiciary and Judicial Procedure."

2 In 1998, two sections 512 were enacted into law. On October 17, 1998,

the Fairness in Music Licensing Act of 1998 was enacted. This Act

amended chapter five to add section 512 entitled "Determination of

reasonable license fees for individual proprietors." Pub. L. No.

105-298, 112 Stat. 2827, 2831. On October 28, 1998, the Online Copyright

Infringement Liability Limitation Act was enacted. This Act amended

chapter five to add section 512 entitled "Limitations on liability

relating to material online." Pub. L. No. 105-304, 112 Stat. 2860, 2877.

In 1999, a technical correction was enacted to redesignate the section

512 that was entitled "Determination of reasonable license fees for

individual proprietors" as section 513. Also, the table of sections was

amended to reflect that change. Pub. L. No. 106-44, 113 Stat. 221. See

also endnote 10, infra.

3 The Berne Convention Implementation Act of 1988 amended section

501(b) by striking out "sections 205(d) and 411" and inserting in lieu

thereof "section 411." Pub. L. No. 100-568, 102 Stat. 2853, 2860. The

Satellite Home Viewer Act of 1988 amended section 501 by adding

subsection (e). Pub. L. No. 100-667, 102 Stat. 3935, 3957.

In 1990, the Copyright Remedy Clarification Act amended section 501(a)

by adding the last two sentences. Pub. L. No. 101-553, 104 Stat. 2749.

The Visual Artists Rights Act of 1990 also amended section 501(a) as

follows: 1) by inserting "or of the author as provided in section

106A(a)" after "118" and 2) by striking out "copyright." and inserting

in lieu thereof "copyright or right of the author, as the case may be.

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

copyright shall be deemed to include the rights conferred by section

106A(a)." Pub. L. No. 101-650, 104 Stat. 5089, 5131.

In 1999, a technical correction amended the first sentence in subsection

501(a) by inserting "121" in lieu of "118." Pub. L. No. 106-44, 113

Stat. 221, 222. The Satellite Home Viewer Improvement Act of 1999

amended section 501 by adding a subsection (f) and, in subsection (e),

by inserting "performance or display of a work embodied in a primary

transmission" in lieu of "primary transmission embodying the performance

or display of a work." Pub. L. No. 106-113, 113 Stat. 1501, app. I at

1501A-527 and 544. The Satellite Home Viewer Improvement Act of 1999

states that section 501(f) shall be effective as of July 1, 1999. Pub.

L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544.

4 The Berne Convention Implementation Act of 1988 amended section

504(c) as follows: 1) in paragraph (1), by inserting "$500" in lieu of

"$250" and by inserting "$20,000" in lieu of "$10,000" and 2) in

paragraph (2), by inserting "$100,000" in lieu of "$50,000" and by

inserting "$200" in lieu of "$100." Pub. L. No. 100-568, 102 Stat. 2853,

The Digital Theft Deterrence and Copyright Damages Improvement Act

of 1999 amended section 504(c), in paragraph (1), by substituting "$750"

for "$500" and "$30,000" for "$20,000" and, in paragraph (2), by

substituting "$150,000" for "$100,000." Pub. L. No. 106-160, 113 Stat.

1774.

5 The Piracy and Counterfeiting Amendments Act of 1982 amended section

506 by substituting a new subsection(a). Pub. L. No. 97-180, 96 Stat.

91, 93. The Visual Artists Rights Act of 1990 amended section 506 by

adding subsection (f). Pub. L. No.101-650, 104 Stat. 5089, 5131. In

1997, the No Electronic Theft (NET) Act again amended section 506 by

amending subsection (a) in its entirety. Pub. L. No. 105-147, 111 Stat.

That Act also directed the United States Sentencing Commission to

"ensure that the applicable guideline range for a defendant convicted of

a crime against intellectual property . . . is sufficiently stringent to

deter such a crime" and to "ensure that the guidelines provide for

consideration of the retail value and quantity of the items with respect

to which the crime against intellectual property was committed." Pub. L.

No. 105-147, 111 Stat. 2678, 2680. See also endnote 2 in Part VII of the

Appendix.

6 In 1997, the No Electronic Theft (NET) Act amended section 507(a) by

inserting "5" in lieu of "three." Pub. L. No. 105-147, 111 Stat. 2678.

7 The Satellite Home Viewer Improvement Act of 1999 amended the heading

for section 510 by substituting "programming" for "programing" and, in

subsection (b), by substituting "statutory" for "compulsory." Pub. L.

No. 106-113, 113 Stat. 1501, app. I at 1501A-543.

8 In 1990, the Copyright Remedy Clarification Act added section 511.

Pub. L. No. 101-553, 104 Stat. 2749. In