[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3880 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
2d Session
S. 3880
To amend title 17, United States Code, to define and provide for
accommodation and designation of technical measures to identify,
protect, or manage copyrighted works, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 17, 2022
Mr. Tillis (for himself and Mr. Leahy) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 17, United States Code, to define and provide for
accommodation and designation of technical measures to identify,
protect, or manage copyrighted works, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Strengthening Measures to Advance
Rights Technologies Copyright Act of 2022'' or the ``SMART Copyright
Act of 2022''.
SEC. 2. DEFINITION OF STANDARD TECHNICAL MEASURES.
Section 512(i) of title 17, United States Code, is amended by
striking paragraph (2) and inserting the following:
``(2) Definition.--In this subsection, the term `standard
technical measures' means technical measures that are used by
copyright owners to identify or protect copyrighted works, or
by service providers to identify or manage copyrighted works on
the service, and--
``(A) have been identified or developed pursuant
to--
``(i) a broad consensus of copyright owners
and service providers in an open, fair,
voluntary, multi-industry process; or
``(ii) a broad consensus of relevant
copyright owners and relevant service
providers, in an open, fair, voluntary process,
for technical measures that are applicable to a
particular industry, type of work, type or size
of service provider, or type of technical
measure;
``(B) are available to any person on--
``(i) nondiscriminatory terms; and
``(ii)(I) a royalty-free basis; or
``(II) a reasonable royalty basis; and
``(C) do not impose substantial and
disproportionate costs on service providers or
substantial and disproportionate burdens on their
systems or networks.''.
SEC. 3. DESIGNATION OF CERTAIN TECHNICAL MEASURES TO IDENTIFY, PROTECT,
OR MANAGE COPYRIGHTED WORKS.
(a) In General.--Chapter 5 of title 17, United States Code, is
amended by adding at the end the following:
``Sec. 514. Designation of certain technical measures to identify,
protect, or manage copyrighted works
``(a) Definitions.--In this section:
``(1) Accommodate.--The term `accommodate' includes
adapting, implementing, integrating, adjusting, and conforming.
``(2) Covered service provider.--The term `covered service
provider' means a service provider to which a designated
technical measure applies.
``(3) Designated technical measure.--The term `designated
technical measure' means a technical measure that has been
designated by the Librarian in accordance with subsection (c).
``(4) Librarian.--The term `Librarian' means the Librarian
of Congress.
``(5) Proposed technical measure.--The term `proposed
technical measure' means a technical measure that is proposed
by a person under subsection (d)(1).
``(6) Register.--The term `Register' means the Register of
Copyrights.
``(7) Service provider.--The term `service provider'--
``(A) means a provider of online services or
network access, or the operator of facilities therefor,
that provides 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; and
``(B) includes a provider described in subparagraph
(A) that offers 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.
``(8) Technical measure.--The term `technical measure'
means a technical measure that--
``(A) is used by--
``(i) a copyright owner to identify or
protect a copyrighted work; or
``(ii) a service provider to identify or
manage a copyrighted work; and
``(B) may vary across types and sizes of service
providers.
``(b) Accommodation of Designated Technical Measures.--A covered
service provider shall use commercially reasonable efforts to
accommodate and not interfere with designated technical measures that
apply to that covered service provider.
``(c) Authority of the Librarian.--
``(1) Designation of technical measures.--The Librarian
may, at the recommendation of the Register, and as provided in
subsections (d) and (e)--
``(A) designate proposed technical measures that--
``(i) are available to any person on--
``(I) nondiscriminatory terms; and
``(II)(aa) a royalty-free basis; or
``(bb) a reasonable royalty basis;
and
``(ii) do not impose substantial and
disproportionate costs on service providers or
substantial and disproportionate burdens on
their systems or networks;
``(B) rescind previously designated technical
measures; or
``(C) revise previously designated technical
measures.
``(2) Prescription of rules.--The Librarian, upon
consultation with the Register, shall prescribe rules that--
``(A) implement subsections (d) and (e); and
``(B) provide for the protection of confidential
and sensitive information provided to the Librarian--
``(i) as part of a petition under
subsection (d); or
``(ii) during a rulemaking under subsection
(e).
``(d) Petitions.--
``(1) In general.--Not later than 1 year after the date of
enactment of the SMART Copyright Act of 2022 and every 3 years
thereafter, the Librarian shall accept petitions, from owners
of copyrighted works, service providers, and other
stakeholders, proposing the designation of a technical measure
or the rescission or revision of a designated technical
measure.
``(2) Petition requirements.--In the case of a petition
submitted to the Librarian under paragraph (1) proposing the
designation of a technical measure or review of a designated
technical measure, as appropriate, the petition shall detail
with specificity--
``(A) the type of copyrighted works, or any subset
thereof, intended to be covered by the technical
measure;
``(B) the type of service provider, or any subset
thereof, intended to be covered by the technical
measure; and
``(C) how the proposed technical measure or the
designated technical measure proposed to be revised
meets both the definition of `technical measure' under
subsection (a) and the criteria set forth in subsection
(c)(1)(A).
``(3) Evaluation of petition.--After each deadline under
paragraph (1), the Librarian shall evaluate each petition
received under that paragraph and take appropriate action as
follows:
``(A) The Librarian may begin a rulemaking process
to--
``(i) designate a proposed technical
measure; or
``(ii) rescind or revise a designated
technical measure.
``(B) The Librarian shall reject without a
rulemaking proceeding a petition that proposes the
designation or revision of a privately owned technical
measure, unless the petition is filed or joined by the
owner of the technical measure proposed to be
designated or revised.
``(e) Rulemaking Process.--
``(1) Public comment.--For any proposed technical measure
or designated technical measure for which the Librarian has
begun a rulemaking process under subsection (d)(3)(A), the
public comment process shall include not less than 1 public
hearing convened by the Register, which shall include written
input from relevant technical experts.
``(2) Factors for examination by register.--For any
rulemaking process the Librarian has begun under subsection
(d)(3)(A), with respect to each technical measure, the Register
shall examine--
``(A) the availability and use of the technical
measure to identify, manage, or protect particular
types of copyrighted works on particular types of
services;
``(B) the terms on which the technical measure is
and will be made available to any person under
subsection (c)(1)(A)(i), including whether there are
any intellectual property rights that need to be
licensed by service providers to accommodate the
technical measure;
``(C) the total cost that accommodating or not
interfering with the technical measure may impose on
the type of service providers described in the
petition;
``(D) the burden the technical measure may impose
on the systems or networks of service providers, as
compared to--
``(i) the total amount of alleged or
demonstrated infringing activity occurring over
systems or networks controlled by the type of
service providers described in the petition;
``(ii) the revenue and other financial
resources of the type of service providers
described in the petition; and
``(iii) any mitigation of costs or other
benefits or savings that the type of service
providers described in the petition may achieve
by accommodating or not interfering with the
technical measure;
``(E) in the case of a proposed technical measure,
whether the proposed technical measure is also a
standard technical measure, as defined in section
512(i), to avoid designating a technical measure that
is otherwise a standard technical measure;
``(F) the positive or negative impact the technical
measure may have on criticism, comment, news reporting,
teaching, scholarship, research, increasing information
sharing, or other relevant public interest
considerations;
``(G) whether the technical measure poses an undue
cybersecurity threat (as defined in section 102 of the
Cybersecurity Information Sharing Act of 2015 (6 U.S.C
1501)) to, or would create a security vulnerability (as
defined in such section 102) for, the information
systems of the affected service providers;
``(H) the impact the technical measure may have on
privacy and data protection;
``(I) the impact the technical measure may have on
competition among service providers, and the impact it
may have on competition among copyright owners;
``(J) whether certain categories or types of
service providers should be exempt from the subset of
service providers covered by a designation, such as--
``(i) libraries;
``(ii) educational institutions; or
``(iii) corporate or not-for-profit
websites that permit user comments or posts,
but have never or rarely had infringing
activity on their services; and
``(K) in the case of a proposed technical measure,
whether--
``(i) the proposed technical measure may
conflict or interfere with other proposed
technical measures or designated technical
measures; or
``(ii) multiple proposed technical measures
and designated technical measures should be
subsumed under a broader category of designated
technical measures.
``(3) Recommendation.--
``(A) In general.--The Register shall make a
recommendation that includes written input from the
Chief Technology Advisor to the Librarian on each
proposed technical measure, and each designated
technical measure proposed to be revised or rescinded,
that is considered under the rulemaking process under
this subsection, after consulting with, and reporting
and commenting on the views of, the following, as
appropriate:
``(i) The Director of the National
Institute of Standards and Technology.
``(ii) The Assistant Secretary of Commerce
for Communications and Information.
``(iii) The Attorney General, for the
purpose of providing an analysis of the impact
a proposed technical measure may have on
competition among service providers or
copyright owners, as appropriate.
``(iv) Any relevant cybersecurity agency.
``(B) Resolution of disagreement.--If there is
substantial disagreement between the recommendation of
the Register and any of the views expressed by the
agencies consulted under subparagraph (A), the
Librarian shall explain in writing the reasons for the
resolution of the disagreement as part of the decision
under paragraph (4).
``(4) Decision.--If, at the conclusion of the rulemaking
process under this subsection, the Librarian determines that
the record supports the designation of a proposed technical
measure, or a rescission or revision of a designated technical
measure, the Librarian shall--
``(A)(i) for a proposed technical measure,
designate the proposed technical measure; or
``(ii) for a designated technical measure proposed
to be revised, designate the revised technical measure;
``(B) for a proposed technical measure or a
designated technical measure proposed to be revised--
``(i) describe, as part of the designation
under subparagraph (A), the type of copyrighted
work, or any subset thereof, and the covered
service providers to which the technical
measure applies; and
``(ii) include in the description under
clause (i), as appropriate, any category or
subset of type of service provider that is
exempt from the designation, such that the
requirement under subsection (b) does not apply
to those service providers;
``(C) for a designated technical measure proposed
to be rescinded, rescind the technical measure;
``(D) for a proposed technical measure or a
designated technical measure proposed to be revised,
provide examples or a definition with specificity for
what `accommodate' means for the technical measure,
taking into account how different covered service
providers to which the technical measure applies may
have to accommodate differently based on their size or
other relevant characteristics;
``(E) publish a list of designated technical
measures, including the description required under
subparagraph (B)(i), in effect after the Librarian has
designated, revised, and rescinded technical measures
under this paragraph in the Federal Register and
publish and maintain the list on the website of the
Library of Congress; and
``(F) for a proposed technical measure or a revised
designated technical measure, publish a deadline, which
shall not be earlier than 1 year after the date of
publication, by which service providers shall implement
the designated technical measure.
``(f) Public Information.--To assist the public in understanding
the requirements under this section, the Register shall--
``(1) publish on the website of the Copyright Office an
index of cases relating to the requirements; and
``(2) update the list published under paragraph (1) not
less frequently than annually.
``(g) Authorization of Appropriations.--
``(1) In general.--There is authorized to be appropriated
to carry out this section--
``(A) $900,000 for fiscal year 2023; and
``(B) subject to paragraph (2), $700,000 for fiscal
year 2024 and each fiscal year thereafter.
``(2) Adjustment for inflation.--The amount authorized to
be appropriated under paragraph (1)(B) for fiscal year 2025 and
each fiscal year thereafter shall be adjusted annually to
reflect the change in the Consumer Price Index for All Urban
Consumers published by the Bureau of Labor Statistics.
``(h) Appeal to District of Columbia Circuit.--Not later than 90
days after the date on which the Librarian publishes a decision
regarding a technical measure under subsection (e)(4), any covered
service provider to which the technical measure applies and any party
that submitted a petition under subsection (d) regarding the technical
measure may appeal the decision to the United States Court of Appeals
for the District of Columbia Circuit.
``(i) Civil Remedies.--
``(1) Civil actions.--A copyright owner aggrieved by a
violation of subsection (b) by a covered service provider may
bring a civil action against the covered service provider in an
appropriate United States district court.
``(2) Authority of the court.--In an action brought under
paragraph (1), the court may--
``(A) grant a temporary or permanent injunction on
such terms as it determines reasonable to prevent or
restrain a violation;
``(B) award damages, in accordance with paragraph
(3);
``(C) allow, in its discretion, the recovery of
costs by or against any party other than the United
States or an officer of the United States; and
``(D) award, in its discretion, reasonable attorney
fees or expert witness fees to the prevailing party.
``(3) Award of damages.--
``(A) In general.--Except as provided in
subparagraph (B) or otherwise provided in this title,
in an action brought by a copyright owner against a
service provider under paragraph (1), the court shall
award to the copyright owner the actual damages
suffered by the copyright owner as a result of the
violation.
``(B) Statutory damages.--
``(i) In general.--In an action brought
under paragraph (1), the copyright owner may
elect to recover, in lieu of actual damages, an
award of statutory damages in an amount that
is--
``(I) not less than $200 and not
more than $25,000 per violation, as the
court considers just; and
``(II) not more than $150,000 in
the aggregate.
``(ii) Repeated violations.--
``(I) 2 or more violations.--If, in
an action brought against a service
provider under paragraph (1), the
copyright owner proves that the service
provider violated subsection (b) not
less than 1 time during the 3-year
period beginning on the date of a final
judgment entered against the service
provider for a violation of that
subsection, the copyright owner may
elect to recover an award of statutory
damages in an amount that is--
``(aa) not less than $5,000
and not more than $400,000 per
violation, as the court
considers just; and
``(bb) not more than
$800,000 in the aggregate.
``(II) 3 or more violations.--If,
in an action brought against a service
provider under paragraph (1), the
copyright owner proves that the service
provider violated subsection (b) not
fewer than 2 times during the 5-year
period beginning on the date of a final
judgment entered against the service
provider for a violation of that
subsection, the court may increase the
award of damages to not more than
triple the amount that would otherwise
be awarded under subparagraph (A) or
subclause (I) of this clause, as the
court considers just.
``(C) Innocent violations.--The court, in its
discretion, may reduce or remit the total award of
damages in any action brought against a service
provider under paragraph (1)--
``(i) in which the service provider proves
by a preponderance of the evidence that the
service provider was not aware and had no
reason to believe that its acts constituted a
violation of subsection (b); or
``(ii) for reasons of equity.
``(j) No Impact on Safe Harbor.--
``(1) In general.--Nothing in this section shall be
construed to alter the scope of the safe harbors set forth in
subsections (a) through (e) of section 512, or to impose a
condition on eligibility for those safe harbors.
``(2) No defense to liability.--The safe harbors set forth
in subsections (a) through (e) of section 512 shall not
constitute a defense to liability under this section.
``(k) Limitation of Liability.--Notwithstanding subsection (i), no
covered service provider shall be held liable in a civil action on
account of--
``(1) any action voluntarily taken in good faith under this
section to restrict access to or availability of material; or
``(2) any action taken under this section to enable or make
available to covered service providers the technical means to
restrict access to material described in paragraph (1).''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 5 of title 17, United States Code, is amended by adding at the
end the following:
``514. Designation of certain technical measures to identify, protect,
or manage copyrighted works.''.
SEC. 4. ADVISORS.
(a) Advisors to the Register.--Chapter 7 of title 17, United States
Code, is amended by adding at the end the following:
``Sec. 711. Advisors to the Register
``(a) Chief Economist.--Not later than 180 days after the date of
enactment of the SMART Copyright Act of 2022, the Register shall
appoint a Chief Economist within the Office of the Register, who shall
advise the Register on issues related to economic policy and copyright.
``(b) Chief Technology Advisor.--
``(1) In general.--Not later than 180 days after the date
of enactment of the SMART Copyright Act of 2022, the Register
shall appoint a Chief Technology Advisor, who shall advise the
Register on technology issues related to copyright law,
including by evaluating and providing advice on the factors in
section 514(e)(2).
``(2) Qualifications.--The individual appointed as Chief
Technology Advisor under paragraph (1) shall have significant
technical expertise, including experience with computer
software, standards, and technological measures relevant to
copyright law.
``(3) Term.--The individual appointed as Chief Technology
Advisor under paragraph (1) shall serve for a limited term to
be determined by the Register, but not to exceed 5 years.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 7 of title 17, United States Code, is amended by adding at the
end the following:
``711. Advisors to the Register.''.
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