U.S.A. Copyright Law - Library of Congress. Copyright Office (best sales books of all time txt) 📗
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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 Actof 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
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