,i #aagth ,,congress #b;d ,session ,h4 ,r4 #ieda ,,in ,,the ,,house ,,of ,,representatives ,december #ad1 #bjbb,ms4 ,chu 7for herself and ,mr4 ,armstrong7 introduced the following bill2 which was referred to the ,committee on the ,judiciary ,a ,,bill ,to amend title #ag1 ,united ,states ,code1 to define and provide for accommodation and designation of technical measures to identify1 protect1 or manage copyrighted works1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,strengthening ,measures to ,advance ,rights ,technologies ,copyright ,act of #bjbc or the ,,smart ,copyright ,act of #bjbc4 #b4 ,designation of use in the marketplace of certain technical measures to identify or protect copyrighted works 7a7 ,in general ,chapter #e of title #ag1 ,united ,states ,code1 is amended by adding at the end the following3 #ead4 ,designation of use in the marketplace of certain technical measures to identify or protect copyrighted works 7a7 ,definitions ,in this section3 7#a7 ,covered service provider ,the term covered service provider means a service provider to which a designated technical measure applies4 7#b7 ,designated technical measure ,the term designated technical measure means a technical measure that has been designated by the ,librarian in accordance with subsections 7c71 7d71 and 7e74 7#c7 ,librarian ,the term ,librarian means the ,librarian of ,congress4 7#d7 ,proposed technical measure ,the term proposed technical measure means a technical measure that is proposed by a person under subsection 7d74 7#e7 ,register ,the term ,register means the ,register of ,copyrights4 7#f7 ,service provider ,the term service provider means-- 7,a7 a provider of online services or network access1 or the operator of facilities therefor1 that-- 7i7 provides storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider2 7ii7 refers or links users to an online location by using information location tools1 including a directory1 index1 reference1 pointer1 or hypertext link2 and_/or 7iii7 provides the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider in a case in which-- 7,i7 the material is made available online by a person other than the service provider2 7,,ii7 the material is transmitted from the person described in clause 7i7 through the system or network to a person other than the person described in clause 7i7 at the direction of that other person2 and 7,,iii7 the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who1 after the material is transmitted as described in clause 7ii71 request access to the material from the person described in clause 7i72 and 7,b7 the term does not include-- 7i7 a library or archives-- 7,i7 whose collections are open to the public1 or are available not only to researchers affiliated with the library or archives or with the institution of which it is a part1 but also to other persons doing research in a specialized field2 7,,ii7 that has a public service mission2 7,,iii7 whose trained staff or volunteers provide professional services normally associated with libraries or archives2 and 7,,iv7 whose collections are composed of lawfully acquired and_/or licensed materials2 7ii7 a nonprofit educational institution2 or 7iii7 any other person solely with regard to providing the services described in section #eab7k7 to an institution described in subparagraph 7i7 or 7ii7 in the course of providing such services to such institution4 7#g7 ,technical measure ,the term technical measure means a technical measure that is used in commerce by a copyright owner or a service provider to identify or protect a copyrighted work4 7b7 ,employment of designated technical measures ,a covered service provider shall use reasonable efforts to employ and effectively implement applicable designated technical measures4 7c7 ,authority of the ,librarian 7#a7 ,designation of technical measures ,the ,librarian may1 at the recommendation of the ,register1 and pursuant to subsections 7d7 and 7e7-- 7,a7 designate proposed technical measures that-- 7i7 are widely used in the marketplace by service providers2 or 7ii7 are widely available in the marketplace on nondiscriminatory terms and a royalty-free basis2 7,b7 rescind previous designations of technical measures2 and 7,c7 revise previous designations of technical measures4 7#b7 ,prescription of rules ,the ,librarian1 upon consultation with the ,register1 shall prescribe rules that-- 7,a7 implement subsections 7d7 and 7e72 and 7,b7 provide for the protection of confidential and sensitive information provided to the ,librarian-- 7i7 as part of a petition under subsection 7d72 or 7ii7 during a rulemaking under subsection 7e74 7d7 ,petitions 7#a7 ,in general ,not later than #a year after the date of enactment of the ,,smart ,copyright ,act of #bjbc and every #c years thereafter1 the ,librarian shall accept petitions1 from owners of copyrighted works1 service providers1 and other stakeholders1 proposing the designation of a technical measure or the rescission or revision of a previous designation of a technical measure4 7#b7 ,petition requirements ,in the case of a petition submitted to the ,librarian under paragraph 7#a7 proposing the designation of a technical measure or review of a previous designation of a technical measure1 as appropriate1 the petition shall detail with specificity-- 7,a7 how the proposed technical measure1 or the designated technical measure as proposed to be revised1 meets the definition of technical measure under subsection 7a7 and the criteria for designation of such technical measure under subsection 7c77#a77;,a72 7,b7 the classes of copyrighted works1 or any subsets thereof1 intended to be covered2 and 7,c7 the types of service provider1 or any subsets thereof1 intended to be covered4 7#c7 ,evaluation of petition ,after each deadline under paragraph 7#a71 the ,librarian shall evaluate each petition received under that paragraph and take appropriate action as follows3 7,a7 ,the ,librarian may begin a rulemaking process to-- 7i7 designate a proposed technical measure2 or 7ii7 rescind or revise a previous designation of a technical measure4 7,b7 ,the ,librarian shall reject without a rulemaking proceeding a petition that proposes the designation or revision of a designation applicable to a privately owned technical measure1 unless the petition is filed or joined by the owner of the technical measure proposed to be designated or whose previous designation is proposed to be revised4 7e7 ,rulemaking process 7#a7 ,public comment ,for any proposed technical measure or designated technical measure for which the ,librarian has begun a rulemaking process under subsection 7d77#c77;,a71 the public comment process shall include not less than #a public hearing convened by the ,register4 7#b7 ,examination by ,register ,for any rulemaking process the ,librarian has begun under subsection 7d77#c77;,a71 with respect to each proposed technical measure1 the ,register1 in making a recommendation under paragraph 7#c71 shall consider whether the criteria set forth in subsection 7c77#a77;,a7 have been met1 and1 in addition1 shall take into account-- 7,a7 whether the proposed technical measure imposes substantial and disproportionate costs on service providers or substantial and disproportionate burdens on their systems or networks2 7,b7 whether there are any intellectual property rights that need to be licensed by service providers to employ and effectively implement the proposed technical measure2 7,c7 the total amount of alleged or demonstrated infringing activity occurring over systems or networks controlled by the types of service providers described in the petition1 including the volume of valid takedown notices received by the service provider pursuant to section #eab1 taking into consideration the scale of the platform and existing systems to identify or protect copyrighted material2 7,d7 the positive or negative impact the proposed technical measure may have on criticism1 comment1 news reporting1 teaching1 scholarship1 research1 increasing information sharing1 or other relevant public interest considerations2 7,e7 whether the proposed technical measure poses a cybersecurity threat 7as defined in section #ajb of the ,cybersecurity ,information ,sharing ,act of #bjae 7#f ,u4,s4,c4 #aeja77 to1 or would create a security vulnerability 7as defined in such section #ajb7 for1 the information systems of the affected service providers2 7,f7 the impact the proposed technical measure may have on privacy and data protection2 7,g7 the impact the lack of use of the proposed technical measure may have on unfair competition among service providers2 7,h7 whether certain categories or types of service providers should be exempt from the subset of service providers covered by the proposed technical measure1 such as corporate or not-for-profit websites that permit user comments or posts1 but have never or rarely had infringing activity on their services2 7,i7 whether the proposed technical measure may conflict or interfere with other proposed technical measures or designated technical measures2 and 7,j7 whether multiple proposed technical measures and designated technical measures should be subsumed under a broader category of designated technical measures4 7#c7 ,recommendation ,the ,register shall make a recommendation on each proposed technical measure1 and each proposed revision or rescinding of a previous designation of a technical measure1 that is considered under the rulemaking process under this subsection1 and after consulting with the following1 as appropriate3 7,a7 ,the ,director of the ,national ,institute of ,standards and ,technology4 7,b7 ,the ,assistant ,secretary of ,commerce for ,communications and ,information4 7,c7 ,any relevant cybersecurity agency4 7#d7 ,decision ,if1 at the conclusion of the rulemaking process under this subsection1 the ,librarian determines based on the recommendation of the ,register that a proposed technical measure should be designated under the authority granted in subsection 7c71 the ,librarian shall-- 7,a7 7i7 for a proposed technical measure1 designate the proposed technical measure2 or 7ii7 for a revision of a previous designation of a technical measure1 set forth the revised designation of the technical measure2 7,b7 for a proposed technical measure or a proposed revision of a previous designation of a technical measure-- 7i7 describe1 as part of the designation under subparagraph 7,a71 the classes of copyrighted works1 or any subsets thereof1 and the types of covered service providers to which the technical measure applies2 and 7ii7 include in the description under clause 7i71 as appropriate1 any category or subset of type of service provider that is exempt from the designation1 such that the requirement under subsection 7b7 does not apply to those service providers2 7,c7 for a previous designation of a technical measure proposed to be rescinded1 rescind the designation of the technical measure2 7,d7 for a proposed technical measure or a previous designation of a technical measure proposed to be revised1 provide examples or a definition with specificity for what employ and effectively implement means for the technical measure1 taking into account how different covered service providers to which the technical measure applies may have to employ and effectively implement differently based on their size or other relevant characteristics1 provided that no such examples shall imply that a particular proprietary product must be used2 7,e7 publish a list of designated technical measures1 including the description required under subparagraph 7,b77i71 to be in effect after the ,librarian has designated technical measures or revised or rescinded previous designations of technical measures under the paragraph in the ,federal ,register and publish and maintain the list on the website of the ,library of ,congress2 and 7,f7 for a proposed technical measure or a revised designation of a technical measure1 publish a deadline1 which shall not be earlier than #a year after the date of publication1 by which covered service providers shall implement the designated technical measure4 7f7 ,public information ,to assist the public in understanding the requirements under this section1 the ,register shall-- 7#a7 publish on the website of the ,copyright ,office an index of cases relating to the requirements2 and 7#b7 update the list published under paragraph 7#a7 not less frequently than annually4 7g7 ,authorization of appropriations 7#a7 ,in general ,there is authorized to be appropriated to carry out this section-- 7,a7 #ijj1jjj for fiscal year #bjbc2 and 7,b7 subject to paragraph 7#b71 #gjj1jjj for fiscal year #bjbd and each fiscal year thereafter4 7#b7 ,adjustment for inflation ,the amount authorized to be appropriated under paragraph 7#a77;,b7 for fiscal year #bjbe and each fiscal year thereafter shall be adjusted annually to reflect the change in the ,consumer ,price ,index for ,all ,urban ,consumers published by the ,bureau of ,labor ,statistics4 7h7 ,appeal to ,district of ,columbia ,circuit ,not later than #ij days after the date on which the ,librarian publishes a decision regarding a technical measure under subsection 7e77#d71 any covered service provider to which the technical measure applies and any party that submitted a petition under subsection 7d7 regarding the technical measure may appeal the decision to the ,united ,states ,court of ,appeals for the ,district of ,columbia ,circuit4 7i7 ,civil ,remedies 7#a7 ,civil actions ,a copyright owner may bring a civil action in an appropriate ,united ,states district court against a covered service provider for a violation of subsection 7b7 for the remedies provided in this subsection4 7#b7 ,authority of the court ,in an action brought under paragraph 7#a71 if the court finds a violation of subsection 7b71 the court shall enter an order on such terms as it may deem reasonable to ensure compliance by the covered service provider with subsection 7b7 within an appropriate time period1 and1 in addition1 the court may-- 7,a7 award damages1 in accordance with paragraph 7#c72 7,b7 allow1 in its discretion1 the recovery of costs by or against any party other than the ,united ,states or an officer of the ,united ,states2 and 7,c7 award1 in its discretion1 reasonable attorney fees and expert witness fees to the prevailing party4 7#c7 ,award of damages 7,a7 ,in general ,except as provided in subparagraph 7,b7 or otherwise provided in this title1 the court may award to the copyright owner bringing a claim under paragraph 7#a7-- 7i7 statutory damages in the sum of not less than #e1jjj and not more than #ejj1jjj for each violation of subsection 7b71 as the court considers just2 and 7ii7 a separate award of statutory damages in the sum of not less than #e1jjj and not more than #ejj1jjj for each month that a covered service provider fails to comply with subsection 7b7 after the time period ordered by the court in paragraph 7#b77;,a74 7,b7 ,innocent ,violations ,the court1 in its discretion1 may reduce or remit the total award of damages in any action brought against a covered service provider under paragraph 7#a7-- 7i7 in which the covered service provider proves by a preponderance of the evidence that the covered service provider was not aware and had no reason to believe that its acts constituted a violation of subsection 7b72 or 7ii7 for reasons of equity4 7j7 ,no impact on safe harbor 7#a7 ,in general ,nothing in this section shall be construed to alter the scope of the safe harbors set forth in subsections 7a7 through 7e7 of section #eab1 or to impose a condition on eligibility for those safe harbors4 7#b7 ,no defense to liability ,the safe harbors set forth in subsections 7a7 through 7e7 of section #eab shall not constitute a defense to liability under this section4 7k7 ,limitation of liability ,notwithstanding subsection 7i71 no covered service provider shall be held liable in a civil action on account of-- 7#a7 any action voluntarily taken in good faith under this section to restrict access to or availability of material2 or 7#b7 any action taken under this section to enable or make available to covered service providers the technical means to restrict access to material described in paragraph 7#a74 4 7b7 ,technical and conforming amendment ,the table of sections for chapter #e of title #ag1 ,united ,states ,code1 is amended by adding at the end the following3 #ead4 ,designation of use in the marketplace of certain technical measures to identify or protect copyrighted works4 4