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S. 743

One Hundred Twelfth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday, the third day of January, two thousand and twelve

An Act

To amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited personnel practices, require a statement in non-disclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, 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 ‘‘Whistleblower Protection Enhancement Act of 2012’’.

TITLE I—PROTECTION OF CERTAIN DIS- CLOSURES OF INFORMATION BY FED- ERAL EMPLOYEES

SEC. 101. CLARIFICATION OF DISCLOSURES COVERED.

(a) IN GENERAL.—Section 2302(b)(8) of title 5, United States Code, is amended—

(1) in subparagraph (A)(i), by striking ‘‘a violation’’ and inserting ‘‘any violation’’; and

(2) in subparagraph (B)(i), by striking ‘‘a violation’’ and inserting ‘‘any violation (other than a violation of this section)’’. (b) PROHIBITED PERSONNEL PRACTICES UNDER SECTION

2302(b)(9).—
(1) TECHNICAL AND CONFORMING AMENDMENTS.—Title 5,

United States Code, is amended—
(A) in subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of

section 1214 and in subsections (a), (e)(1), and (i) of section 1221, by inserting ‘‘or section 2302(b)(9) (A)(i), (B), (C), or (D)’’ after ‘‘section 2302(b)(8)’’ each place it appears; and

(B) in section 2302(a)(2)(C)(i), by inserting ‘‘or section 2302(b)(9) (A)(i), (B), (C), or (D)’’ after ‘‘(b)(8)’’.
(2) OTHER REFERENCES.—(A) Title 5, United States Code,

is amended in subsection (b)(4)(B)(i) of section 1214 and in subsection (e)(1) of section 1221 by inserting ‘‘or protected activity’’ after ‘‘disclosure’’ each place it appears.

(B) Section 2302(b)(9) of title 5, United States Code, is amended—

(i) by striking subparagraph (A) and inserting the fol- lowing:

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‘‘(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—

‘‘(i) with regard to remedying a violation of para- graph (8); or

‘‘(ii) other than with regard to remedying a viola- tion of paragraph (8);’’; and
(ii) in subparagraph (B), by inserting ‘‘(i) or (ii)’’ after

‘‘subparagraph (A)’’.

(C) Section 2302 of title 5, United States Code, is amended by adding at the end the following:
‘‘(f)(1) A disclosure shall not be excluded from subsection (b)(8)

because—
‘‘(A) the disclosure was made to a supervisor or to a person

who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);

‘‘(B) the disclosure revealed information that had been pre- viously disclosed;

‘‘(C) of the employee’s or applicant’s motive for making the disclosure;

‘‘(D) the disclosure was not made in writing;

‘‘(E) the disclosure was made while the employee was off duty; or

‘‘(F) of the amount of time which has passed since the occurrence of the events described in the disclosure.
‘‘(2) If a disclosure is made during the normal course of duties

of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.’’.

SEC. 102. DEFINITIONAL AMENDMENTS.

Section 2302(a)(2) of title 5, United States Code, is amended— (1) in subparagraph (B)(ii), by striking ‘‘and’’ at the end; (2) in subparagraph (C)(iii), by striking the period at the

end and inserting ‘‘; and’’; and
(3) by adding at the end the following:
‘‘(D) ‘disclosure’ means a formal or informal communication

or transmission, but does not include a communication con- cerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclo- sure reasonably believes that the disclosure evidences—

‘‘(i) any violation of any law, rule, or regulation; or

‘‘(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.’’.

SEC. 103. REBUTTABLE PRESUMPTION.

Section 2302(b) of title 5, United States Code, is amended by amending the matter following paragraph (12) to read as follows: ‘‘This subsection shall not be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress. For purposes of paragraph (8), (i) any presumption relating to the performance of a duty by an employee whose conduct is the subject of a disclosure as defined under subsection (a)(2)(D) may be rebutted

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by substantial evidence, and (ii) a determination as to whether an employee or applicant reasonably believes that such employee or applicant has disclosed information that evidences any violation of law, rule, regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety shall be made by determining whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence such violations, mismanagement, waste, abuse, or danger.’’.

SEC. 104. PERSONNEL ACTIONS AND PROHIBITED PERSONNEL PRAC- TICES.

(a) PERSONNEL ACTION.—Section 2302(a)(2)(A) of title 5, United States Code, is amended—

(1) in clause (x), by striking ‘‘and’’ after the semicolon; and

(2) by redesignating clause (xi) as clause (xii) and inserting after clause (x) the following:

‘‘(xi) the implementation or enforcement of any non- disclosure policy, form, or agreement; and’’.

(b) PROHIBITED PERSONNEL PRACTICE.—
(1) IN GENERAL.—Section 2302(b) of title 5, United States

Code, is amended—
(A) in paragraph (11), by striking ‘‘or’’ at the end; (B) in paragraph (12), by striking the period and

inserting ‘‘; or’’; and
(C) by inserting after paragraph (12) the following:

‘‘(13) implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not con- tain the following statement: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statu- tory provisions are incorporated into this agreement and are controlling.’.’’.

(2) AGENCY WEBSITES.—Agencies making use of any non- disclosure policy, form, or agreement shall also post the state- ment required under section 2302(b)(13) of title 5, United States Code (as added by this Act) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions.

(3) NONDISCLOSURE POLICY, FORM, OR AGREEMENT IN EFFECT BEFORE THE EFFECTIVE DATE.—With respect to a non- disclosure policy, form, or agreement that was in effect before the effective date of this Act, but that does not contain the statement required under section 2302(b)(13) of title 5, United States Code (as added by this Act) for implementation or enforcement—

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(A) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

(B) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2) of this subsection.

States Code, is amended by adding at the end the following:

‘‘(h) Any corrective action ordered under this section to correct a prohibited personnel practice may include fees, costs, or damages reasonably incurred due to an agency investigation of the employee, if such investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.’’.

(2) DAMAGES.—Section 1221(g) of title 5, United States Code, is amended by adding at the end the following:
‘‘(4) Any corrective action ordered under this section to correct

a prohibited personnel practice may include fees, costs, or damages reasonably incurred due to an agency investigation of the employee, if such investigation was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.’’.

SEC. 105. EXCLUSION OF AGENCIES BY THE PRESIDENT.

Section 2302(a)(2)(C) of title 5, United States Code, is amended by striking clause (ii) and inserting the following:

‘‘(ii)(I) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnais- sance Office; and

‘‘(II) as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintel- ligence activities, provided that the determination be made prior to a personnel action; or’’.

SEC. 106. DISCIPLINARY ACTION.

Section 1215(a)(3) of title 5, United States Code, is amended to read as follows:

‘‘(3)(A) A final order of the Board may impose—
‘‘(i) disciplinary action consisting of removal, reduction in

grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand;

‘‘(ii) an assessment of a civil penalty not to exceed $1,000; or

‘‘(iii) any combination of disciplinary actions described under clause (i) and an assessment described under clause (ii).
‘‘(B) In any case brought under paragraph (1) in which the

Board finds that an employee has committed a prohibited personnel practice under section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D), the Board may impose disciplinary action if the Board finds that the activity protected under section 2302(b)(8), or 2302(b)(9)

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(A)(i), (B), (C), or (D) was a significant motivating factor, even if other factors also motivated the decision, for the employee’s decision to take, fail to take, or threaten to take or fail to take a personnel action, unless that employee demonstrates, by a prepon- derance of the evidence, that the employee would have taken, failed to take, or threatened to take or fail to take the same personnel action, in the absence of such protected activity.’’.

SEC. 107. REMEDIES.

(a) ATTORNEY FEES.—Section 1204(m)(1) of title 5, United States Code, is amended by striking ‘‘agency involved’’ and inserting ‘‘agency where the prevailing party was employed or had applied for employment at the time of the events giving rise to the case’’.

(b) DAMAGES.—Sections 1214(g)(2) and 1221(g)(1)(A)(ii) of title 5, United States Code, are amended by striking all after ‘‘travel expenses,’’ and inserting ‘‘any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and costs).’’ each place it appears.

SEC. 108. JUDICIAL REVIEW.

(a) IN GENERAL.—Section 7703(b) of title 5, United States Code, is amended by striking the matter preceding paragraph (2) and inserting the following:

‘‘(b)(1)(A) Except as provided in subparagraph (B) and para- graph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.

‘‘(B) During the 2-year period beginning on the effective date of the Whistleblower Protection Enhancement Act of 2012, a petition to review a final order or final decision of the Board that raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D) shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.’’.

(b) REVIEW OBTAINED BY OFFICE OF PERSONNEL MANAGE- MENT.—Section 7703(d) of title 5, United States Code, is amended to read as follows:

‘‘(d)(1) Except as provided under paragraph (2), this paragraph shall apply to any review obtained by the Director of the Office of Personnel Management. The Director may obtain review of any final order or decision of the Board by filing, within 60 days after the Board issues notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Director determines, in the discretion of the Director, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless

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the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

‘‘(2) During the 2-year period beginning on the effective date of the Whistleblower Protection Enhancement Act of 2012, this paragraph shall apply to any review obtained by the Director of the Office of Personnel Management that raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9) (A)(i), (B), (C), or (D). The Director may obtain review of any final order or decision of the Board by filing, within 60 days after the Board issues notice of the final order or decision of the Board, a petition for judicial review in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction if the Director determines, in the discretion of the Director, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the court of appeals. The granting of the petition for judicial review shall be at the discretion of the court of appeals.’’.

SEC. 109. PROHIBITED PERSONNEL PRACTICES AFFECTING THE TRANSPORTATION SECURITY ADMINISTRATION.

(a) IN GENERAL.—Chapter 23 of title 5, United States Code, is amended—

(1) by redesignating sections 2304 and 2305 as sections 2305 and 2306, respectively; and

(2) by inserting after section 2303 the following:

‘‘§2304. Prohibited personnel practices affecting the Transportation Security Administration

‘‘(a) IN GENERAL.—Notwithstanding any other provision of law, any individual holding or applying for a position within the Transportation Security Administration shall be covered by—

‘‘(1) the provisions of section 2302(b) (1), (8), and (9);

‘‘(2) any provision of law implementing section 2302(b) (1), (8), or (9) by providing any right or remedy available to an employee or applicant for employment in the civil service; and

‘‘(3) any rule or regulation prescribed under any provision of law referred to in paragraph (1) or (2).
‘‘(b) RULE OF CONSTRUCTION.—Nothing in this section shall

be construed to affect any rights, apart from those described in subsection (a), to which an individual described in subsection (a) might otherwise be entitled under law.’’.

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(b) TECHNICAL AND CONFORMING AMENDMENT.—The table of sections for chapter 23 of title 5, United States Code, is amended by striking the items relating to sections 2304 and 2305, respec- tively, and inserting the following:

‘‘2304. Prohibited personnel practices affecting the Transportation Security Adminis- tration.

‘‘2305. Responsibility of the Government Accountability Office. ‘‘2306. Coordination with certain other provisions of law.’’.

SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR TECHNICAL INFORMATION.

(a) DEFINITIONS.—In this subsection—
(1) the term ‘‘agency’’ has the meaning given under section

2302(a)(2)(C) of title 5, United States Code;
(2) the term ‘‘applicant’’ means an applicant for a covered

position;
(3) the term ‘‘censorship related to research, analysis, or

technical information’’ means any effort to distort, misrepre- sent, or suppress research, analysis, or technical information; (4) the term ‘‘covered position’’ has the meaning given

under section 2302(a)(2)(B) of title 5, United States Code;
(5) the term ‘‘employee’’ means an employee in a covered

position in an agency; and
(6) the term ‘‘disclosure’’ has the meaning given under

section 2302(a)(2)(D) of title 5, United States Code. (b) PROTECTED DISCLOSURE.—

(1) IN GENERAL.—Any disclosure of information by an employee or applicant for employment that the employee or applicant reasonably believes is evidence of censorship related to research, analysis, or technical information—

(A) shall come within the protections of section 2302(b)(8)(A) of title 5, United States Code, if—

(i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—

(I) any violation of law, rule, or regulation; or

(II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and
(ii) such disclosure is not specifically prohibited

by law or such information is not specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs; and

(B) shall come within the protections of section 2302(b)(8)(B) of title 5, United States Code, if—

(i) the employee or applicant reasonably believes that the censorship related to research, analysis, or technical information is or will cause—

(I) any violation of law, rule, or regulation; or

(II) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and

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(ii) the disclosure is made to the Special Counsel, or to the Inspector General of an agency or another person designated by the head of the agency to receive such disclosures, consistent with the protection of sources and methods.

(2) DISCLOSURES NOT EXCLUDED.—A disclosure shall not be excluded from paragraph (1) for any reason described under section 2302(f)(1) or (2) of title 5, United States Code.

(3) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to imply any limitation on the protections of employees and applicants afforded by any other provision of law, including protections with respect to any disclosure of information believed to be evidence of censorship related to research, analysis, or technical information.

SEC. 111. CLARIFICATION OF WHISTLEBLOWER RIGHTS FOR CRITICAL INFRASTRUCTURE INFORMATION.

Section 214(c) of the Homeland Security Act of 2002 (6 U.S.C. 133(c)) is amended by adding at the end the following: ‘‘For purposes of this section a permissible use of independently obtained informa- tion includes the disclosure of such information under section 2302(b)(8) of title 5, United States Code.’’.

SEC. 112. ADVISING EMPLOYEES OF RIGHTS.

Section 2302(c) of title 5, United States Code, is amended by inserting ‘‘, including how to make a lawful disclosure of informa- tion that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures’’ after ‘‘chapter 12 of this title’’.

SEC. 113. SPECIAL COUNSEL AMICUS CURIAE APPEARANCE.

Section 1212 of title 5, United States Code, is amended by adding at the end the following:

‘‘(h)(1) The Special Counsel is authorized to appear as amicus curiae in any action brought in a court of the United States related to section 2302(b) (8) or (9), or as otherwise authorized by law. In any such action, the Special Counsel is authorized to present the views of the Special Counsel with respect to compliance with section 2302(b) (8) or (9) and the impact court decisions would have on the enforcement of such provisions of law.

‘‘(2) A court of the United States shall grant the application of the Special Counsel to appear in any such action for the purposes described under subsection (a).’’.

SEC. 114. SCOPE OF DUE PROCESS.

(a) SPECIAL COUNSEL.—Section 1214(b)(4)(B)(ii) of title 5, United States Code, is amended by inserting ‘‘, after a finding that a protected disclosure was a contributing factor,’’ after ‘‘ordered if’’.

(b) INDIVIDUAL ACTION.—Section 1221(e)(2) of title 5, United States Code, is amended by inserting ‘‘, after a finding that a protected disclosure was a contributing factor,’’ after ‘‘ordered if’’.

SEC. 115. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

(a) IN GENERAL.—

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(1) REQUIREMENT.—Each agreement in Standard Forms 312 and 4414 of the Government and any other nondisclosure policy, form, or agreement of the Government shall contain the following statement: ‘‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The defini- tions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’’.

(2) AGENCY WEBSITES.—Agencies making use of any non- disclosure policy, form, or agreement shall also post the state- ment required under paragraph (1) on the agency website, accompanied by the specific list of controlling Executive orders and statutory provisions.

(3) ENFORCEABILITY.—
(A) IN GENERAL.—Any nondisclosure policy, form, or

agreement described under paragraph (1) that does not contain the statement required under paragraph (1) may not be implemented or enforced to the extent such policy, form, or agreement is inconsistent with that statement.

(B) NONDISCLOSURE POLICY, FORM, OR AGREEMENT IN EFFECT BEFORE THE EFFECTIVE DATE.—With respect to a nondisclosure policy, form, or agreement that was in effect before the effective date of this Act, but that does not contain the statement required under paragraph (1) for implementation or enforcement—

(i) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement with regard to a current employee if the agency gives such employee notice of the statement; and

(ii) it shall not be a prohibited personnel practice to enforce that policy, form, or agreement after the effective date of this Act with regard to a former employee if the agency complies with paragraph (2).

(b) PERSONS OTHER THAN GOVERNMENT EMPLOYEES.—Notwith- standing subsection (a), a nondisclosure policy, form, or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such policy, form, or agreement shall, at a minimum, require that the person will not disclose any classi- fied information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure policy, form, or agreement shall also make it clear that such forms do not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law, consistent with the protection of sources and methods.

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SEC. 116. REPORTING REQUIREMENTS.

(a) GOVERNMENT ACCOUNTABILITY OFFICE.—
(1) REPORT.—Not later than 4 years after the date of enact-

ment of this Act, the Comptroller General shall submit a report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives on the implementation of this title.

(2) CONTENTS.—The report under this subsection shall include—

(A) an analysis of any changes in the number of cases filed with the Merit Systems Protection Board alleging violations of section 2302(b)(8) or (9) of title 5, United States Code, since the effective date of this Act;

(B) the outcome of the cases described under subpara- graph (A), including whether or not the Merit Systems Protection Board, the United States Court of Appeals for the Federal Circuit, or any other court determined the allegations to be frivolous or malicious as well as a rec- ommendation whether Congress should grant the Merit Systems Protection Board summary judgment authority for cases described under subparagraph (A);

(C) a recommendation regarding whether Congress should grant jurisdiction for some subset of cases described under subparagraph (A) to be decided by a district court of the United States and an evaluation of the impact that would have on the Merit Systems Protection Board and the Federal court system; and

(D) any other matter as determined by the Comptroller General.

(b) MERIT SYSTEMS PROTECTION BOARD.—
(1) IN GENERAL.—Each report submitted annually by the

Merit Systems Protection Board under section 1116 of title 31, United States Code, shall, with respect to the period covered by such report, include as an addendum the following:

(A) Information relating to the outcome of cases decided by the Merit Systems Protection Board during the period covered by such report in which violations of section 2302(b)(8) or (9)(A)(i), (B)(i), (C), or (D) of title 5, United States Code, were alleged.

(B) The number of such cases filed in the regional and field offices, and the number of petitions for review filed in such cases, during the period covered by such report, and the outcomes of any such cases or petitions for review (irrespective of when filed) decided during such period.
(2) FIRST REPORT.—The first report described under para-

graph (1) submitted after the date of enactment of this Act shall include an addendum required under that paragraph that covers the period beginning on the effective date of this Act and ending at the end of the fiscal year in which such effective date occurs.

SEC. 117. WHISTLEBLOWER PROTECTION OMBUDSMAN.

(a) IN GENERAL.—Section 3 of the Inspector General Act of 1978 (5 U.S.C. App.) is amended by striking subsection (d) and inserting the following:

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‘‘(d)(1) Each Inspector General shall, in accordance with applicable laws and regulations governing the civil service—

‘‘(A) appoint an Assistant Inspector General for Auditing who shall have the responsibility for supervising the perform- ance of auditing activities relating to programs and operations of the establishment;

‘‘(B) appoint an Assistant Inspector General for Investiga- tions who shall have the responsibility for supervising the performance of investigative activities relating to such pro- grams and operations; and

‘‘(C) designate a Whistleblower Protection Ombudsman who shall educate agency employees—

‘‘(i) about prohibitions on retaliation for protected disclosures; and

‘‘(ii) who have made or are contemplating making a protected disclosure about the rights and remedies against retaliation for protected disclosures.

‘‘(2) The Whistleblower Protection Ombudsman shall not act as a legal representative, agent, or advocate of the employee or former employee.

‘‘(3) For the purposes of this section, the requirement of the designation of a Whistleblower Protection Ombudsman under para- graph (1)(C) shall not apply to—

‘‘(A) any agency that is an element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))); or

‘‘(B) as determined by the President, any executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counter intelligence activities.’’.
(b) TECHNICAL AND CONFORMING AMENDMENT.—Section 8D(j)

of the Inspector General Act of 1978 (5 U.S.C. App.) is amended— (1) by striking ‘‘section 3(d)(1)’’ and inserting ‘‘section

3(d)(1)(A)’’; and
(2) by striking ‘‘section 3(d)(2)’’ and inserting ‘‘section

3(d)(1)(B)’’. (c) SUNSET.—

(1) IN GENERAL.—The amendments made by this section shall cease to have effect on the date that is 5 years after the date of enactment of this Act.

(2) RETURN TO PRIOR AUTHORITY.—Upon the date described in paragraph (1), section 3(d) and section 8D(j) of the Inspector General Act of 1978 (5 U.S.C. App.) shall read as such sections read on the day before the date of enactment of this Act.

TITLE II—SAVINGS CLAUSE; EFFECTIVE DATE

SEC. 201. SAVINGS CLAUSE.

Nothing in this Act shall be construed to imply any limitation on any protections afforded by any other provision of law to employees and applicants.

SEC. 202. EFFECTIVE DATE.

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Except as otherwise provided in section 109, this Act shall take effect 30 days after the date of enactment of this Act.

Speaker of the House of Representatives.

Vice President of the United States and President of the Senate.

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The Digital Millennium Copyright Act of 1998

THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998 U.S. Copyright Office Summary

December 1998

INTRODUCTION

The Digital Millennium Copyright Act (DMCA)1 was signed into law by President Clinton on October 28, 1998. The legislation implements two 1996 World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA also addresses a number of other significant copyright-related issues.

The DMCA is divided into five titles:

! Title I, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties.
! Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.
! Title III, the “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.
! Title IV contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.
! Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls. This memorandum summarizes briefly each title of the DMCA. It provides merely an overview of the law’s provisions; for purposes of length and readability a significant amount of detail has been omitted. A complete understanding of any provision of the DMCA requires reference to the text of the legislation itself. 1Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998). Copyright Office Summary December 1998 Page 1

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TITLE I: WIPO TREATY IMPLEMENTATION

Title I implements the WIPO treaties. First, it makes certain technical amendments to U.S. law, in order to provide appropriate references and links to the treaties. Second, it creates two new prohibitions in Title 17 of the U.S. Code—one on circumvention of technological measures used by copyright owners to protect their works and one on tampering with copyright management information—and adds civil remedies and criminal penalties for violating the prohibitions. In addition, Title I requires the U.S. Copyright Office to perform two joint studies with the National Telecommunications and Information Administration of the Department of Commerce (NTIA).

Technical Amendments

National Eligibility

The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) each require member countries to provide protection to certain works from other member countries or created by nationals of other member countries. That protection must be no less favorable than that accorded to domestic works.

Section 104 of the Copyright Act establishes the conditions of eligibility for protection under U.S. law for works from other countries. Section 102(b) of the DMCA amends section 104 of the Copyright Act and adds new definitions to section 101 of the Copyright Act in order to extend the protection of U.S. law to those works required to be protected under the WCT and the WPPT.

Restoration of Copyright Protection

Both treaties require parties to protect preexisting works from other member countries that have not fallen into the public domain in the country of origin through the expiry of the term of protection. A similar obligation is contained in both the Berne Convention and the TRIPS Agreement. In 1995 this obligation was imple- mented in the Uruguay Round Agreements Act, creating a new section 104A in the Copyright Act to restore protection to works from Berne or WTO member countries that are still protected in the country of origin, but fell into the public domain in the United States in the past because of a failure to comply with formalities that then existed in U.S. law, or due to a lack of treaty relations. Section 102(c) of the DMCA amends section 104A to restore copyright protection in the same circumstances to works from WCT and WPPT member countries.

The Digital Millennium Copyright Act of 1998

Registration as a Prerequisite to Suit

The remaining technical amendment relates to the prohibition in both treaties against conditioning the exercise or enjoyment of rights on the fulfillment of formalities. Section 411(a) of the Copyright Act requires claims to copyright to be registered with the Copyright Office before a lawsuit can be initiated by the copyright owner, but exempts many foreign works in order to comply with existing treaty obligations under the Berne Convention. Section 102(d) of the DMCA amends section 411(a) by broadening the exemption to cover all foreign works.

Technological Protection and Copyright Management Systems

Each of the WIPO treaties contains virtually identical language obligating member states to prevent circumvention of technological measures used to protect copyrighted works, and to prevent tampering with the integrity of copyright management information. These obligations serve as technological adjuncts to the exclusive rights granted by copyright law. They provide legal protection that the international copyright community deemed critical to the safe and efficient exploitation of works on digital networks.

Circumvention of Technological Protection Measures

General approach

Article 11 of the WCT states:

Contracting Parties shall provide adequate legal protec- tion and effective legal remedies against the circumven- tion of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Article 18 of the WPPT contains nearly identical language.

Section 103 of the DMCA adds a new chapter 12 to Title 17 of the U.S. Code. New section 1201 implements the obligation to provide adequate and effective protection against circumvention of technological measures used by copyright owners to protect their works.

Section1201dividestechnologicalmeasuresintotwocategories: measuresthat prevent unauthorized access to a copyrighted work and measures that prevent

The Digital Millennium Copyright Act of 1998

unauthorizedcopying2ofacopyrightedwork. Makingorsellingdevicesorservicesthat are used to circumvent either category of technological measure is prohibited in certain circumstances, described below. As to the act of circumvention in itself, the provision prohibits circumventing the first category of technological measures, but not the second.

This distinction was employed to assure that the public will have the continued ability to make fair use of copyrighted works. Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumvent- ing a technological measure that prevents copying. By contrast, since the fair use doctrine is not a defense to the act of gaining unauthorized access to a work, the act of circumventing a technological measure in order to gain access is prohibited.

Section 1201 proscribes devices or services that fall within any one of the following three categories:

! they are primarily designed or produced to circumvent;
! they have only limited commercially significant purpose or use other than to circumvent; or
! they are marketed for use in circumventing. No mandate Section 1201 contains language clarifying that the prohibition on circumvention devices does not require manufacturers of consumer electronics, telecommunications or computing equipment to design their products affirmatively to respond to any particular technological measure. (Section 1201(c)(3)). Despite this general ‘no mandate’ rule, section 1201(k) does mandate an affirmative response for one particular type of technology: within 18 months of enactment, all analog videocassette recorders must be designed to conform to certain defined technologies, commonly known as Macrovision, currently in use for preventing unauthorized copying of analog videocassettes and certain analog signals. The provision prohibits rightholders from applying these specified technologies to free television and basic and extended basic tier cable broadcasts. 2“Copying” is used in this context as a short-hand for the exercise of any of the exclus- iverightsofanauthorundersection106oftheCopyrightAct. Consequently,atechnological measure that prevents unauthorized distribution or public performance of a work would fall in this second category. Copyright Office Summary December 1998 Page 4

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Savings clauses

Section 1201 contains two general savings clauses. First, section 1201(c)(1) states that nothing in section 1201 affects rights, remedies, limitations or defenses to copyright infringement, including fair use. Second, section 1201(c)(2) states that nothing in section 1201 enlarges or diminishes vicarious or contributory copyright infringement.

Exceptions

Finally, the prohibitions contained in section 1201 are subject to a number of exceptions. One is an exception to the operation of the entire section, for law enforcement, intelligence and other governmental activities. (Section 1201(e)). The others relate to section 1201(a), the provision dealing with the category of technological measures that control access to works.

The broadest of these exceptions, section 1201(a)(1)(B)-(E), establishes an ongoing administrative rule-making proceeding to evaluate the impact of the prohibition against the act of circumventing such access-control measures. This conduct prohibition does not take effect for two years. Once it does, it is subject to an exception for users of a work which is in a particular class of works if they are or are likely to be adversely affected by virtue of the prohibition in making noninfringing uses. The applicability of the exemption is determined through a periodic rulemaking by the Librarian of Congress, on the recommendation of the Register of Copyrights, who is to consult with the Assistant Secretary of Commerce for Communications and Information.

The six additional exceptions are as follows:

Nonprofit library, archive and educational institution exception (section 1201(d)). The prohibition on the act of circumvention of access control measures is subject to an exception that permits nonprofit libraries, archives and educational institutions to circumvent solely for the purpose of making a good faith determination as to whether they wish to obtain authorized access to the work.
Reverse engineering (section 1201(f)). This exception permits circumvention, and the development of technological means for such circumvention, by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing elements of the program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law.
Encryption research (section 1201(g)). An exception for encryption research permits circumvention of access control measures, and the

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development of the technological means to do so, in order to identify

flaws and vulnerabilities of encryption technologies.

Protection of minors (section 1201(h)). This exception allows a court applying the prohibition to a component or part to consider the necessity for its incorporation in technology that prevents access of minors to material on the Internet.
Personal privacy (section 1201(i)). This exception permits circumven- tion when the technological measure, or the work it protects, is capable of collecting or disseminating personally identifying information about the online activities of a natural person.
Security testing (section 1201(j)). This exception permits circumven- tion of access control measures, and the development of technological means for such circumvention, for the purpose of testing the security of a computer, computer system or computer network, with the authorization of its owner or operator.

Each of the exceptions has its own set of conditions on its applicability, which are beyond the scope of this summary.

Integrity of Copyright Management Information

Article 12 of the WCT provides in relevant part:

Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringe- ment of any right covered by this Treaty or the Berne Convention:

(i) to remove or alter any electronic rights management information without authority;

(ii) to distribute, import for distribution, broad- cast or communicate to the public, without authority, works or copies of works knowing that electronic rights management information has been removed or altered without authority.

Article 19 of the WPPT contains nearly identical language.

New section 1202 is the provision implementing this obligation to protect the integrity of copyright management information (CMI). The scope of the protection

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is set out in two separate paragraphs, the first dealing with false CMI and the second with removal or alteration of CMI. Subsection (a) prohibits the knowing provision or distribution of false CMI, if done with the intent to induce, enable, facilitate or conceal infringement. Subsection (b) bars the intentional removal or alteration of CMI without authority, as well as the dissemination of CMI or copies of works, knowing that the CMI has been removed or altered without authority. Liability under subsection (b) requires that the act be done with knowledge or, with respect to civil remedies, with reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement.

Subsection (c) defines CMI as identifying information about the work, the author, the copyright owner, and in certain cases, the performer, writer or director of the work, as well as the terms and conditions for use of the work, and such other information as the Register of Copyrights may prescribe by regulation. Information concerning users of works is explicitly excluded.

Section 1202 is subject to a general exemption for law enforcement, intelligence and other governmental activities. (Section 1202(d)). It also contains limitations on the liability of broadcast stations and cable systems for removal or alteration of CMI in certain circumstances where there is no intent to induce, enable, facilitate or conceal an infringement. (Section 1202(e)).

Remedies

Any person injured by a violation of section 1201 or 1202 may bring a civil action in Federal court. Section 1203 gives courts the power to grant a range of equitable and monetary remedies similar to those available under the Copyright Act, including statutory damages. The court has discretion to reduce or remit damages in cases of innocent violations, where the violator proves that it was not aware and had no reason to believe its acts constituted a violation. (Section 1203(c)(5)(A)). Special protection is given to nonprofit libraries, archives and educational institutions, which are entitled to a complete remission of damages in these circumstances. (Section 1203(c)(5)(B)).

In addition, it is a criminal offense to violate section 1201 or 1202 wilfully and for purposes of commercial advantage or private financial gain. Under section 1204 penalties range up to a $500,000 fine or up to five years imprisonment for a first offense, and up to a $1,000,000 fine or up to 10 years imprisonment for subsequent offenses. Nonprofit libraries, archives and educational institutions are entirely exempted from criminal liability. (Section 1204(b)).

The Digital Millennium Copyright Act of 1998

Title I of the DMCA requires the Copyright Office to conduct two studies jointly with NTIA, one dealing with encryption and the other with the effect of technological developments on two existing exceptions in the Copyright Act. New section 1201(g)(5) of Title 17 of the U.S. Code requires the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information to report to the Congress no later than one year from enactment on the effect that the exemption for encryption research (new section 1201(g)) has had on encryption research, the development of encryption technology, the adequacy and effectiveness of technological measures designed to protect copyrighted works, and the protection of copyright owners against unauthorized access to their encrypted copyrighted works.

Section 104 of the DMCA requires the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information to jointly evaluate (1) the effects of Title I of the DMCA and the development of electronic commerce and associated technology on the operation of sections 109 (first sale doctrine) and 117 (exemption allowing owners of copies of computer programs to reproduce and adapt them for use on a computer), and (2) the relationship between existing and emergent technology and the operation of those sections. This study is due 24 months after the date of enactment of the DMCA.

TITLE II: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

Title II of the DMCA adds a new section 512 to the Copyright Act3 to create four new limitations on liability for copyright infringement by online service providers. The limitations are based on the following four categories of conduct by a service provider:

Transitory communications;
System caching;
Storage of information on systems or networks at direction of users; and
Information location tools.

New section 512 also includes special rules concerning the application of these limitations to nonprofit educational institutions.

3The Fairness in Musical Licensing Act, Title II of Pub. L. No. 105-298, 112 Stat. 2827, 2830-34 (Oct. 27, 1998) also adds a new section 512 to the Copyright Act. This duplication of section numbers will need to be corrected in a technical amendments bill.

The Digital Millennium Copyright Act of 1998

Each limitation entails a complete bar on monetary damages, and restricts the availability of injunctive relief in various respects. (Section 512(j)). Each limitation relates to a separate and distinct function, and a determination of whether a service provider qualifies for one of the limitations does not bear upon a determination of whether the provider qualifies for any of the other three. (Section 512(n)).

The failure of a service provider to qualify for any of the limitations in section 512 does not necessarily make it liable for copyright infringement. The copyright owner must still demonstrate that the provider has infringed, and the provider may still avail itself of any of the defenses, such as fair use, that are available to copyright defendants generally. (Section 512(l)).

In addition to limiting the liability of service providers, Title II establishes a procedure by which a copyright owner can obtain a subpoena from a federal court ordering a service provider to disclose the identity of a subscriber who is allegedly engaging in infringing activities. (Section 512(h)).

Section 512 also contains a provision to ensure that service providers are not placed in the position of choosing between limitations on liability on the one hand and preserving the privacy of their subscribers, on the other. Subsection (m) explicitly states that nothing in section 512 requires a service provider to monitor its service or access material in violation of law (such as the Electronic Communications Privacy Act) in order to be eligible for any of the liability limitations.

Eligibility for Limitations Generally

A party seeking the benefit of the limitations on liability in Title II must qualify as a “service provider.” For purposes of the first limitation, relating to transitory communications, “service provider” is defined in section 512(k)(1)(A) as “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,withoutmodificationtothecontentofthematerialassentorreceived.” For purposes of the other three limitations, “service provider” is more broadly defined in section 512(k)(l)(B) as “a provider of online services or network access, or the operator of facilities therefor.”

In addition, to be eligible for any of the limitations, a service provider must meet two overall conditions: (1) it must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) it must accommodate and not interfere with “standard technical measures.” (Section 512(i)). “Standard technical measures” are defined as measures that copyright owners use to identify or protect copyrighted works, that have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair and voluntary multi-industry process, are available to anyone on

The Digital Millennium Copyright Act of 1998

reasonable nondiscriminatory terms, and do not impose substantial costs or burdens on service providers.

Limitation for Transitory Communications

In general terms, section 512(a) limits the liability of service providers in circumstances where the provider merely acts as a data conduit, transmitting digital information from one point on a network to another at someone else’s request. This limitation covers acts of transmission, routing, or providing connections for the information, as well as the intermediate and transient copies that are made automatically in the operation of a network.

In order to qualify for this limitation, the service provider’s activities must meet the following conditions:

! The transmission must be initiated by a person other than the provider.
! The transmission, routing, provision of connections, or copying must be carried out by an automatic technical process without selection of material by the service provider.
! The service provider must not determine the recipients of the material.
! Any intermediate copies must not ordinarily be accessible to anyone other than anticipated recipients, and must not be retained for longer than reasonably necessary.
! The material must be transmitted with no modification to its content. Limitation for System Caching Section 512(b) limits the liability of service providers for the practice of retaining copies, for a limited time, of material that has been made available online by a person other than the provider, and then transmitted to a subscriber at his or her direction. The service provider retains the material so that subsequent requests for the same material can be fulfilled by transmitting the retained copy, rather than retrieving the material from the original source on the network. The benefit of this practice is that it reduces the service provider’s bandwidth requirements and reduces the waiting time on subsequent requests for the same information. Ontheotherhand,itcanresultinthedeliveryofoutdatedinformation to subscribers and can deprive website operators of accurate “hit” information — information about the number of requests for particular material on a website — from which advertising revenue is frequently calculated. For this reason, the person making the material available online may establish rules about updating it, and may utilize technological means to track the number of “hits.” Copyright Office Summary December 1998 Page 10

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The limitation applies to acts of intermediate and temporary storage, when carried out through an automatic technical process for the purpose of making the material available to subscribers who subsequently request it. It is subject to the following conditions:

! The content of the retained material must not be modified.
! The provider must comply with rules about “refreshing” mate- rial—replacing retained copies of material with material from the original location— when specified in accordance with a generally accepted industry standard data communication protocol.
! The provider must not interfere with technology that returns “hit” information to the person who posted the material, where such technology meets certain requirements.
! The provider must limit users’ access to the material in accordance with conditions on access (e.g., password protection) imposed by the person who posted the material.
! Any material that was posted without the copyright owner’s authoriza- tion must be removed or blocked promptly once the service provider has been notified that it has been removed, blocked, or ordered to be removed or blocked, at the originating site. Limitation for Information Residing on Systems or Networks at the Direction of Users Section 512(c) limits the liability of service providers for infringing material on websites (or other information repositories) hosted on their systems. It applies to storage at the direction of a user. In order to be eligible for the limitation, the following conditions must be met:
- ! The provider must not have the requisite level of knowledge of the infringing activity, as described below.
- ! If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
- ! Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material. In addition, a service provider must have filed with the Copyright Office a designation of an agent to receive notifications of claimed infringement. The Office provides a suggested form for the purpose of designating an agent (http://www.loc.gov/copyright/onlinesp/) and maintains a list of agents on the Copyright Office website (http://www.loc.gov/copyright/onlinesp/list/). Copyright Office Summary December 1998 Page 11

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Under the knowledge standard, a service provider is eligible for the limitation on liability only if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent, or upon gaining such knowledge or awareness, responds expeditiously to take the material down or block access to it.

The statute also establishes procedures for proper notification, and rules as to its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determiningtherequisitelevelofknowledgebytheserviceprovider. If,uponreceiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability. In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1)).

In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.

Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentifi- cation, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f)).

Limitation for Information Location Tools

Section 512(d) relates to hyperlinks, online directories, search engines and the like. It limits liability for the acts of referring or linking users to a site that contains infringing material by using such information location tools, if the following conditions are met:

The Digital Millennium Copyright Act of 1998

! The provider must not have the requisite level of knowledge that the material is infringing. The knowledge standard is the same as under the limitation for information residing on systems or networks.
! If the provider has the right and ability to control the infringing activity, the provider must not receive a financial benefit directly attributable to the activity.
! Upon receiving a notification of claimed infringement, the provider must expeditiously take down or block access to the material. These are essentially the same conditions that apply under the previous limitation, with some differences in the notification requirements. The provisions establishing safeguards against the possibility of erroneous or fraudulent notifications, as discussed above, as well as those protecting the provider against claims based on having taken down the material apply to this limitation. (Sections 512(f)-(g)). Special Rules Regarding Liability of Nonprofit Educational Institutions Section 512(e) determines when the actions or knowledge of a faculty member or graduate student employee who is performing a teaching or research function may affect the eligibility of a nonprofit educational institution for one of the four limitations on liability. As to the limitations for transitory communications or system caching, the faculty member or student shall be considered a “person other than the provider,” so as to avoid disqualifying the institution from eligibility. As to the other limitations, the knowledge or awareness of the faculty member or student will not be attributed to the institution. The following conditions must be met:
- ! the faculty member or graduate student’s infringing activities do not involve providing online access to course materials that were required or recommended during the past three years;
- ! the institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing; and
- ! the institution provides all of its users with informational materials describing and promoting compliance with copyright law. TITLE III: COMPUTER MAINTENANCE OR REPAIR Title III expands the existing exemption relating to computer programs in section 117 of the Copyright Act, which allows the owner of a copy of a program to make reproductions or adaptations when necessary to use the program in conjunction with a computer. The amendment permits the owner or lessee of a computer to make or authorize the making of a copy of a computer program in the course of maintaining or repairing that computer. The exemption only permits a copy that is made automatically when a computer is activated, and only if the computer already lawfully Copyright Office Summary December 1998 Page 13

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contains an authorized copy of the program. The new copy cannot be used in any other manner and must be destroyed immediately after the maintenance or repair is completed.

TITLE IV: MISCELLANEOUS PROVISIONS
Clarification of the Authority of the Copyright Office

Section 401(b), adds language to section 701 of the Copyright Act confirming the Copyright Office’s authority to continue to perform the policy and international functions that it has carried out for decades under its existing general authority.

Ephemeral Recordings for Broadcasters

Section 112 of the Copyright Act grants an exemption for the making of “ephemeral recordings.” These are recordings made in order to facilitate a transmis- sion. Under this exemption, for example, a radio station can record a set of songs and broadcast from the new recording rather than from the original CDs (which would have to be changed “on the fly” during the course of a broadcast).

As it existed prior to enactment of the DMCA, section 112 permitted a transmitting organization to make and retain for up to six months (hence the term “ephemeral”) no more than one copy of a work if it was entitled to transmit a public performance or display of the work, either under a license or by virtue of the fact that there is no general public performance right in sound recordings (as distinguished from musical works).

The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) created, for the first time in U.S. copyright law, a limited public performance right in sound recordings. The right only covers public performances by means of digital transmission and is subject to an exemption for digital broadcasts (i.e., transmissions by FCC licensed terrestrial broadcast stations) and a statutory license for certain subscription transmissions that are not made on demand (i.e. in response to the specific request of a recipient).

Section 402 of the DMCA expands the section 112 exemption to include recordings that are made to facilitate the digital transmission of a sound recording where the transmission is made under the DPRA’s exemption for digital broadcasts or statutory license. As amended, section 112 also permits in some circumstances the circumvention of access control technologies in order to enable an organization to make an ephemeral recording.

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Distance Education Study

In the course of consideration of the DMCA, legislators expressed an interest in amending the Copyright Act to promote distance education, possibly through an expansion of the existing exception for instructional broadcasting in section 110(2). Section 403 of the DMCA directs the Copyright Office to consult with affected parties and make recommendations to Congress on how to promote distance education through digital technologies. The Office must report to Congress within six months of enactment.

The Copyright Office is directed to consider the following issues:

! The need for a new exemption;
! Categories of works to be included in any exemption;
! Appropriate quantitative limitations on the portions of works that may be used under any exemption;
! Which parties should be eligible for any exemption;
! Which parties should be eligible recipients of distance education material under any exemption;
! The extent to which use of technological protection measures should be mandated as a condition of eligibility for any exemption;
! The extent to which the availability of licenses should be considered in assessing eligibility for any exemption; and
! Other issues as appropriate. Exemption for Nonprofit Libraries and Archives Section 404 of the DMCA amends the exemption for nonprofit libraries and archives in section 108 of the Copyright Act to accommodate digital technologies and evolving preservation practices. Prior to enactment of the DMCA, section 108 permitted such libraries and archives to make a single facsimile (i.e., not digital) copy of a work for purposes of preservation or interlibrary loan. As amended, section 108 permits up to three copies, which may be digital, provided that digital copies are not made available to the public outside the library premises. In addition, the amended section permits such a library or archive to copy a work into a new format if the original format becomes obsolete—that is, the machine or device used to render the work perceptible is no longer manufactured or is no longer reasonably available in the commercial marketplace. Webcasting Amendments to the Digital Performance Right in Sound Recordings As discussed above, in 1995 Congress enacted the DPRA, creating a performance right in sound recordings that is limited to digital transmissions. Under Copyright Office Summary December 1998 Page 15

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that legislation, three categories of digital transmissions were addressed: broadcast transmissions, which were exempted from the performance right; subscription transmissions, which were generally subject to a statutory license; and on-demand transmissions, which were subject to the full exclusive right. Broadcast transmissions under the DPRA are transmissions made by FCC-licensed terrestrial broadcast stations.

In the past several years, a number of entities have begun making digital transmissions of sound recordings over the Internet using streaming audio technolo- gies. Thisactivitydoesnotfallsquarelywithinanyofthethreecategoriesthatwere addressed in the DPRA. Section 405 of the DMCA amends the DPRA, expanding the statutory license for subscription transmissions to include webcasting as a new category of “eligible nonsubscription transmissions.”

In addition to expanding the scope of the statutory license, the DMCA revises the criteria that any entity must meet in order to be eligible for the license (other than those who are subject to a grandfather clause, leaving the existing criteria intact). It revises the considerations for setting rates as well (again, subject to a grandfather clause), directing arbitration panels convened under the law to set the royalty rates at fair market value.

This provision of the DMCA also creates a new statutory license for making ephemeral recordings. As indicated above, section 402 of the DMCA amends section 112 of the Copyright Act to permit the making of a single ephemeral recording to facilitate the digital transmission of sound recording that is permitted either under the DPRA’s broadcasting exemption or statutory license. Transmitting organizations that wish to make more than the single ephemeral recording of a sound recording that is permitted under the outright exemption in section 112 are now eligible for a statutory license to make such additional ephemeral recordings. In addition, the new statutory license applies to the making of ephemeral recordings by transmitting organizations other than broadcasters who are exempt from the digital performance right, who are not covered by the expanded exemption in section 402 of the DMCA.

Assumption of Contractual Obligations upon Transfers of Rights in Motion Pictures

Section 416 addresses concerns about the ability of writers, directors and screen actors to obtain residual payments for the exploitation of motion pictures in situations where the producer is no longer able to make these payments. The guilds’ collective bargaining agreements currently require producers to obtain assumption agreements from distributors in certain circumstances, by which the distributor assumes the producer’s obligation to make such residual payments. Some production companies apparently do not always do so, leaving the guilds without contractual privity enabling them to seek recourse from the distributor.

The DMCA adds a new chapter to Title 28 of the U.S. Code that imposes on transferees those obligations to make residual payments that the producer would be required to have the transferee assume under the relevant collective bargaining agreement. The obligations attach only if the distributor knew or had reason to know that the motion picture was produced subject to a collective bargaining agreement, or in the event of a court order confirming an arbitration award under the collective bargaining agreement that the producer cannot satisfy within ninety days. There are two classes of transfers that are excluded from the scope of this provision. The first is transfers limited to public performance rights, and the second is grants of security interests, along with any subsequent transfers from the security interest holder.

The provision also directs the Comptroller General, in consultation with the Register of Copyrights, to conduct a study on the conditions in the motion picture industry that gave rise to this provision, and the impact of the provision on the industry. The study is due two years from enactment.

TITLE V: PROTECTION OF CERTAIN ORIGINAL DESIGNS

Title V of the DMCA, entitled the Vessel Hull Design Protection Act (VHDPA),addsanewchapter13toTitle17oftheU.S.Code. Itcreatesanewsystem for protecting original designs of certain useful articles that make the article attractive or distinctive in appearance. For purposes of the VHDPA, “useful articles” are limited to the hulls (including the decks) of vessels no longer than 200 feet.

A design is protected under the VHDPA as soon as a useful article embodying thedesignismadepublicoraregistrationforthedesignispublished. Protectionislost if an application for registration is not made within two years after a design is first made public, but a design is not registrable if it has been made public more than one year before the date of the application for registration. Once registered, protection continues for ten years from the date protection begins.

The VHDPA is subject to a legislative sunset: the Act expires two years from enactment (October 28, 2000). The Copyright Office is directed to conduct two joint studies with the Patent and Trademark Office—the first by October 28, 1999 and the second by October 28, 2000—evaluating the impact of the VHDPA.

EFFECTIVE DATES

Most provisions of the DMCA are effective on the date of enactment. There are, however, several exceptions. The technical amendments in Title I that relate to eligibility of works for protection under U.S. copyright law by virtue of the new WIPO treaties do not take effect until the relevant treaty comes into force. Similarly, restoration of copyright protection for such works does not become effective until the relevant treaty comes into force. The prohibition on the act of circumvention of access

control measures does not take effect until two years from enactment (October 28, 2000).

Copyright Policy

The copyright team of the Office of Policy and International Affairs (OPIA) assists in advising the Administration and other Federal Government departments and agencies on domestic and international copyright legal and policy issues. At the international level, the OPIA copyright team provides analysis and advice on foreign copyright laws and the international copyright system, including assistance in negotiating new international copyright norms, their implementation in U.S. law, and the enforcement of international obligations. At the domestic level, the OPIA copyright team provides analysis and advice on copyright developments within the Executive branch, the U.S. Congress, and the courts. As a complement to its international and domestic policy activities, the OPIA copyright team is actively engaged in providing technical assistance and training on copyright-related matters for both U.S. and foreign government officials.Copyright BasicsEvery year, millions of Americans create original works – books, music, research and other forms of creative expression. All of these creations are intellectual property… Internet Policy Task ForceThe USPTO’s Office of Policy and International Affairs and the National Telecommunications and Information Administration (“NTIA”) are working together as part of the…White Paper on Remixes, First Sale, and Statutory DamagesThe Internet Policy Task Force’s White Paper on Remixes, First Sale, and Statutory Damages (White Paper) was published on January 28, 2016. In the report, the Task Force…Green Paper on Copyright Policy, Creativity, and Innovation in the Digital EconomyIn July 2013, the Department of Commerce’s Internet Policy Task Force (Task Force), led by the United States Patent and Trademark Office (USPTO) and National… Multistakeholder Forum on the DMCA Notice and Takedown SystemMultistakeholder Forum on the DMCA Notice and Takedown System The Green Paper identified five separate copyright policy issues critical to economic growth, job creation…Legislative Implementation DocumentsLegislative Implementation Documents for the Beijing Treaty on Audiovisual Performances and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who… Hague Conference’s Preliminary Draft Convention on the Recognition and Enforcement of Foreign JudgementsIn a Federal Register Notice published on November 18, 2016 (81 FR 81741), the USPTO requested public comments on a Preliminary Draft Convention on recognition and…

News & Updates

https://docke ts.ccb.gov/

https://www.uspto.gov/learning-and-resourc es/fees-and-payment

July 7, 2021Updated Patent Datasets now available

The United States Patent and Trademark Office’s (USPTO) Office of the Chief Economist released 2020 updates for two research datasets, the Patent Assignment Dataset and the Patent Examination Research Dataset (PatEx). The Patent Assignment Dataset now contains detailed information on 8.97 million…

Trademark, patent, or copyright

Trademarks, patents, and copyrights are different types of intellectual property. The USPTO grants patents and registers trademarks. The U.S. Copyright Office at the Library of Congress registers copyrights.

What’s legally protected?

Trademark

A word, phrase, design, or a combination that identifies your goods or services, distinguishes them from the goods or services of others, and indicates the source of your goods or services.

Patent

Technical inventions, such as chemical compositions like pharmaceutical drugs, mechanical processes like complex machinery, or machine designs that are new, unique, and usable in some type of industry.

Copyright

Artistic, literary, or intellectually created works, such as novels, music, movies, software code, photographs, and paintings that

are original and exist in a tangible medium, such as paper, canvas, film, or digital format.

Trademark or brand

A brand is a marketing concept that encompasses how people feel about your product or service. Customers associate certain elements with different brands, such as reputation, image, and emotion. For example, a certain brand might have been

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On the other hand, a federal trademark registration can provide nationwide legal protection for your brand in connection with particular goods or services. It is your choice whether to protect your brand under trademark law. Many business owners choose to protect their brand names for their main or dominant goods or services. You might also choose to protect a slogan or logo for those goods or services, if you have one.

Deciding what you want to protect and to what extent is up to you. You can have a brand, but decide not to protect that brand by registering it as a trademark. If you choose not to register your brand as a trademark, however, anyone could misuse your brand or create a brand so similar to yours that people can’t tell the difference between them. So, even if consumers want to purchase your products or services because they trust your brand’s reputation, that customer might purchase someone else’s by mistake because they can’t tell the difference between the trademarks.

DISCLAIMER: References to particular trademarks, service marks, certification marks, products, services, companies, or organizations appearing on this page are for illustrative and educational purposes only and do not constitute or imply endorsement by the U.S. government, the U.S. Department of Commerce, the U.S. Patent and Trademark Office, or any other federal agency.

Trademark scope of protection

A trademark is always connected to the specific goods or services sold to customers with that trademark. You can’t register a word, phrase, symbol, or design as a trademark without specifically identifying the goods or services being used. Your trademark isn’t limited to one good or service. It can be used with many different goods or services, and include both goods and services.

Although the determination of whether you have goods or services can be confusing, it’s critical that you make the correct identification. Think about it this way: What do customers purchase from you? An actual physical product that bears your trademark? Or do they hire you to perform an activity for them? If it’s products, you have goods. If it’s activities, you have services.

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another bookstore.

By being specific about the goods or services your trademark represents in your registration, you clearly identify the scope of use. You can legally prevent others from using the same or a similar trademark for related goods or services without your permission. Applying for more goods or services than you currently use, or intend to use, is likely to cause your application to be denied. We may inquire as to whether the identification you select accurately identifies your goods or services.

To learn more, watch the video on goods and services and see the list of acceptable identifications of good or services in our ID Manual.

Why register your trademark?

It is your choice whether to file for federal trademark registration. The benefits include:

Trademark is listed in our database of registered and pending trademarks. This provides public notice to anyone searching for similar trademarks. They will see your trademark, the goods and services on your registration, the date you applied for trademark registration, and the date your trademark registered.

Right to bring a lawsuit concerning the trademark in federal court. This allows you to sue others who are using your trademark or a too similar trademark anywhere in the country without having to travel to their state to sue them.

Legal presumption that you own the trademark and have the right to use it. So, in federal court, your registration certiFcate proves ownership, eliminating the need for copious amounts of evidence.
Can use your registration as a basis for Fling for trademark protection in foreign countries.

May use the federal trademark registration symbol, ®, with your trademark to show that you are registered with us. This may help deter others from using your trademark or one too similar to yours.

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Federal, state, and international registration

How you choose to protect your trademark is up to you. You are not required to register your trademark, but where or whether you decide to register your trademark can determine the scope of your rights. Specifically, you can rely on common law rights or file for state, federal, or international trademark registration.

Common law rights

If you haven’t filed for state or federal registration, your trademark protection is based solely on using your trademark in commerce within a particular geographic area. This limits your rights, as you can only enforce your trademark rights for the specific area where your trademark is used.

State trademark registration

Registering your trademark with your U.S. state creates rights in that state only. Your trademark is not protected if you expand your business across state lines into another state where your trademark is not registered. If you decide to expand your business across state lines, you’ll need to decide if you want to register your trademark in that state or apply for federal registration. Also, not all states have trademark registration databases, which means that third parties will not be aware of your rights in that trademark. It’s your responsibility to prevent others from using your trademark. See more information about state registration requirements.

Federal trademark registration

Registering your trademark with the USPTO creates rights throughout the entire United States and its territories, and includes your registration in our publicly accessible database of registered trademarks. You can use the ® symbol and you can generally rely on those rights to protect your trademark as you expand your business across state lines. However, the USPTO is not an enforcement agency, so you will be responsible for pursuing any infringing users.

https://www.pay.gov/public/a/myaccount/myforms/attachment/view/277VUAF8

While there is no such thing as a “worldwide trademark” or a “worldwide trademark registration,” you can register your trademark in multiple countries through the Protocol. This international treaty allows you to file a single application that can then be applied to any of the over 100 member countries, as long as you meet the legal requirements for registration in those countries.

Although the Protocol creates something called an “international registration,” the registration doesn’t create worldwide rights. The treaty simplifies applying for a trademark registration in different countries, but it doesn’t automatically guarantee your trademark will be registered in each country. Each country’s trademark office will review your application and decide whether your trademark will be registered in that country.

How long does a federal registration last?

Your trademark registration can last forever, so long as you continue to use your trademark in commerce and provide us with evidence that you’re still using it. Specifically, you need to file maintenance documents with fees at prescribed, periodic intervals. For example, you must file a maintenance document after your trademark has been registered for five years.

If you don’t maintain your trademark registration at these intervals, you’ll lose your federal registration and will need to start the application process over. Learn more about maintaining your federal trademark registration.

December 1998

INTRODUCTION

The DMCA is divided into five titles:

! Title I, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties.
! Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.
! Title III, the “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.
! Title IV contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.
! Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls.This memorandum summarizes briefly each title of the DMCA. It provides merely an overview of the law’s provisions; for purposes of length and readability a significant amount of detail has been omitted. A complete understanding of any provision of the DMCA requires reference to the text of the legislation itself.1Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998).Copyright Office Summary December 1998 Page 1

TITLE I: WIPO TREATY IMPLEMENTATION

Technical Amendments

National Eligibility

Restoration of Copyright Protection

WIPO Lex Download

Registration as a Prerequisite to Suit

Technological Protection and Copyright Management Systems

Circumvention of Technological Protection Measures

General approach

Article 11 of the WCT states:

Article 18 of the WPPT contains nearly identical language.

Section1201dividestechnologicalmeasuresintotwocategories: measuresthat prevent unauthorized access to a copyrighted work and measures that prevent

Section 1201 proscribes devices or services that fall within any one of the following three categories:

! they are primarily designed or produced to circumvent;
! they have only limited commercially significant purpose or use otherthan to circumvent; or
! they are marketed for use in circumventing.No mandateSection 1201 contains language clarifying that the prohibition on circumvention devices does not require manufacturers of consumer electronics, telecommunications or computing equipment to design their products affirmatively to respond to any particular technological measure. (Section 1201(c)(3)). Despite this general ‘no mandate’ rule, section 1201(k) does mandate an affirmative response for one particular type of technology: within 18 months of enactment, all analog videocassette recorders must be designed to conform to certain defined technologies, commonly known as Macrovision, currently in use for preventing unauthorized copying of analog videocassettes and certain analog signals. The provision prohibits rightholders from applying these specified technologies to free television and basic and extended basic tier cable broadcasts.2“Copying” is used in this context as a short-hand for the exercise of any of the exclus- iverightsofanauthorundersection106oftheCopyrightAct. Consequently,atechnological measure that prevents unauthorized distribution or public performance of a work would fall in this second category.Copyright Office Summary December 1998 Page 4

Savings clauses

Exceptions

The six additional exceptions are as follows:

Nonprofit library, archive and educational institution exception (section 1201(d)). The prohibition on the act of circumvention of access control measures is subject to an exception that permits nonprofit libraries, archives and educational institutions to circumvent solely for the purpose of making a good faith determination as to whether they wish to obtain authorized access to the work.
Reverse engineering (section 1201(f)). This exception permits circumvention, and the development of technological means for such circumvention, by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing elements of the program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law.
Encryption research (section 1201(g)). An exception for encryption research permits circumvention of access control measures, and the

development of the technological means to do so, in order to identify

flaws and vulnerabilities of encryption technologies.

Protection of minors (section 1201(h)). This exception allows a court applying the prohibition to a component or part to consider the necessity for its incorporation in technology that prevents access ofminors to material on the Internet.
Personal privacy (section 1201(i)). This exception permits circumven-tion when the technological measure, or the work it protects, is capable of collecting or disseminating personally identifying information about the online activities of a natural person.
Security testing (section 1201(j)). This exception permits circumven- tion of access control measures, and the development of technological means for such circumvention, for the purpose of testing the security of a computer, computer system or computer network, with the authorization of its owner or operator.

Each of the exceptions has its own set of conditions on its applicability, which are beyond the scope of this summary.

Integrity of Copyright Management Information

Article 12 of the WCT provides in relevant part:

(i) to remove or alter any electronic rights management information without authority;

Article 19 of the WPPT contains nearly identical language.

New section 1202 is the provision implementing this obligation to protect the integrity of copyright management information (CMI). The scope of the protection

Remedies

TITLE II: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION

Transitory communications;
System caching;
Storage of information on systems or networks at direction of users;and
Information location tools.

New section 512 also includes special rules concerning the application of these limitations to nonprofit educational institutions.

Eligibility for Limitations Generally

reasonable nondiscriminatory terms, and do not impose substantial costs or burdens on service providers.

Limitation for Transitory Communications

In order to qualify for this limitation, the service provider’s activities must meet the following conditions:

! The transmission must be initiated by a person other than the provider.
! The transmission, routing, provision of connections, or copying must be carried out by an automatic technical process without selection ofmaterial by the service provider.
! The service provider must not determine the recipients of the material.
! Any intermediate copies must not ordinarily be accessible to anyoneother than anticipated recipients, and must not be retained for longerthan reasonably necessary.
! The material must be transmitted with no modification to its content.Limitation for System CachingSection 512(b) limits the liability of service providers for the practice of retaining copies, for a limited time, of material that has been made available online by a person other than the provider, and then transmitted to a subscriber at his or her direction. The service provider retains the material so that subsequent requests for the same material can be fulfilled by transmitting the retained copy, rather than retrieving the material from the original source on the network.The benefit of this practice is that it reduces the service provider’s bandwidth requirements and reduces the waiting time on subsequent requests for the same information. Ontheotherhand,itcanresultinthedeliveryofoutdatedinformation to subscribers and can deprive website operators of accurate “hit” information — information about the number of requests for particular material on a website — from which advertising revenue is frequently calculated. For this reason, the person making the material available online may establish rules about updating it, and may utilize technological means to track the number of “hits.”Copyright Office Summary December 1998 Page 10

! The content of the retained material must not be modified.
! The provider must comply with rules about “refreshing” mate- rial—replacing retained copies of material with material from the original location— when specified in accordance with a generallyaccepted industry standard data communication protocol.
! The provider must not interfere with technology that returns “hit” information to the person who posted the material, where suchtechnology meets certain requirements.
! The provider must limit users’ access to the material in accordance withconditions on access (e.g., password protection) imposed by the personwho posted the material.
! Any material that was posted without the copyright owner’s authoriza-tion must be removed or blocked promptly once the service provider has been notified that it has been removed, blocked, or ordered to be removed or blocked, at the originating site.Limitation for Information Residing on Systems or Networks at the Direction of UsersSection 512(c) limits the liability of service providers for infringing material on websites (or other information repositories) hosted on their systems. It applies to storage at the direction of a user. In order to be eligible for the limitation, the following conditions must be met:
- ! The provider must not have the requisite level of knowledge of the infringing activity, as described below.
- ! If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
- ! Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material.In addition, a service provider must have filed with the Copyright Office a designation of an agent to receive notifications of claimed infringement. The Office provides a suggested form for the purpose of designating an agent (http://www.loc.gov/copyright/onlinesp/) and maintains a list of agents on the Copyright Office website (http://www.loc.gov/copyright/onlinesp/list/.Copyri)ght Office Summary December 1998 Page 11

Limitation for Information Location Tools

! The provider must not have the requisite level of knowledge that the material is infringing. The knowledge standard is the same as under the limitation for information residing on systems or networks.
! If the provider has the right and ability to control the infringing activity, the provider must not receive a financial benefit directly attributable to the activity.
! Upon receiving a notification of claimed infringement, the provider must expeditiously take down or block access to the material.These are essentially the same conditions that apply under the previous limitation, with some differences in the notification requirements. The provisions establishing safeguards against the possibility of erroneous or fraudulent notifications, as discussed above, as well as those protecting the provider against claims based on having taken down the material apply to this limitation. (Sections 512(f)-(g)).Special Rules Regarding Liability of Nonprofit Educational InstitutionsSection 512(e) determines when the actions or knowledge of a faculty member or graduate student employee who is performing a teaching or research function may affect the eligibility of a nonprofit educational institution for one of the four limitations on liability. As to the limitations for transitory communications or system caching, the faculty member or student shall be considered a “person other than the provider,” so as to avoid disqualifying the institution from eligibility. As to the other limitations, the knowledge or awareness of the faculty member or student will not be attributed to the institution. The following conditions must be met:
- ! the faculty member or graduate student’s infringing activities do not involve providing online access to course materials that were required or recommended during the past three years;
- ! the institution has not received more than two notifications over the past three years that the faculty member or graduate student was infringing; and
- ! the institution provides all of its users with informational materials describing and promoting compliance with copyright law.TITLE III: COMPUTER MAINTENANCE OR REPAIRTitle III expands the existing exemption relating to computer programs in section 117 of the Copyright Act, which allows the owner of a copy of a program to make reproductions or adaptations when necessary to use the program in conjunction with a computer. The amendment permits the owner or lessee of a computer to make or authorize the making of a copy of a computer program in the course of maintaining or repairing that computer. The exemption only permits a copy that is made automatically when a computer is activated, and only if the computer already lawfullyCopyright Office Summary December 1998 Page 13

contains an authorized copy of the program. The new copy cannot be used in any other manner and must be destroyed immediately after the maintenance or repair is completed.

TITLE IV: MISCELLANEOUS PROVISIONS
Clarification of the Authority of the Copyright Office

Ephemeral Recordings for Broadcasters

Distance Education Study

The Copyright Office is directed to consider the following issues:

! The need for a new exemption;
! Categories of works to be included in any exemption;
! Appropriate quantitative limitations on the portions of works that maybe used under any exemption;
! Which parties should be eligible for any exemption;
! Which parties should be eligible recipients of distance educationmaterial under any exemption;
! The extent to which use of technological protection measures shouldbe mandated as a condition of eligibility for any exemption;
! The extent to which the availability of licenses should be considered inassessing eligibility for any exemption; and
! Other issues as appropriate.Exemption for Nonprofit Libraries and ArchivesSection 404 of the DMCA amends the exemption for nonprofit libraries and archives in section 108 of the Copyright Act to accommodate digital technologies and evolving preservation practices. Prior to enactment of the DMCA, section 108 permitted such libraries and archives to make a single facsimile (i.e., not digital) copy of a work for purposes of preservation or interlibrary loan. As amended, section 108 permits up to three copies, which may be digital, provided that digital copies are not made available to the public outside the library premises. In addition, the amended section permits such a library or archive to copy a work into a new format if the original format becomes obsolete—that is, the machine or device used to render the work perceptible is no longer manufactured or is no longer reasonably available in the commercial marketplace.Webcasting Amendments to the Digital Performance Right in Sound RecordingsAs discussed above, in 1995 Congress enacted the DPRA, creating a performance right in sound recordings that is limited to digital transmissions. UnderCopyright Office Summary December 1998 Page 15