,,ii #aagth ,,congress #b;d ,session ,s4 #chhj ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,march #ag1 #bjbb,mr4 ,tillis 7for himself and ,mr4 ,leahy7 introduced the following bill2 which was read twice and 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 #bjbb or the ,,smart ,copyright ,act of #bjbb4 #b4 ,definition of standard technical measures ,section #eab7;i7 of title #ag1 ,united ,states ,code1 is amended by striking paragraph 7#b7 and inserting the following3 7#b7 ,definition ,in this subsection1 the term standard technical measures means technical measures that are used by copyright owners to identify or protect copyrighted works1 or by service providers to identify or manage copyrighted works on the service1 and-- 7,a7 have been identified or developed pursuant to-- 7i7 a broad consensus of copyright owners and service providers in an open1 fair1 voluntary1 multi-industry process2 or 7ii7 a broad consensus of relevant copyright owners and relevant service providers1 in an open1 fair1 voluntary process1 for technical measures that are applicable to a particular industry1 type of work1 type or size of service provider1 or type of technical measure2 7,b7 are available to any person on-- 7i7 nondiscriminatory terms2 and 7ii7 7,i7 a royalty-free basis2 or 7,,ii7 a reasonable royalty basis2 and 7,c7 do not impose substantial and disproportionate costs on service providers or substantial and disproportionate burdens on their systems or networks4 4 #c4 ,designation of certain technical measures to identify1 protect1 or manage 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 certain technical measures to identify1 protect1 or manage copyrighted works 7a7 ,definitions ,in this section3 7#a7 ,accommodate ,the term accommodate includes adapting1 implementing1 integrating1 adjusting1 and conforming4 7#b7 ,covered service provider ,the term covered service provider means a service provider to which a designated technical measure applies4 7#c7 ,designated technical measure ,the term designated technical measure means a technical measure that has been designated by the ,librarian in accordance with subsection 7c74 7#d7 ,librarian ,the term ,librarian means the ,librarian of ,congress4 7#e7 ,proposed technical measure ,the term proposed technical measure means a technical measure that is proposed by a person under subsection 7d77#a74 7#f7 ,register ,the term ,register means the ,register of ,copyrights4 7#g7 ,service ,provider ,the term service provider-- 7,a7 means a provider of online services or network access1 or the operator of facilities therefor1 that provides storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider2 and 7,b7 includes a provider described in subparagraph 7,a7 that offers the transmission1 routing1 or providing of connections for digital online communications1 between or among points specified by a user1 of material of the user's choosing1 without modification to the content of the material as sent or received4 7#h7 ,technical measure ,the term technical measure means a technical measure that-- 7,a7 is used by-- 7i7 a copyright owner to identify or protect a copyrighted work2 or 7ii7 a service provider to identify or manage a copyrighted work2 and 7,b7 may vary across types and sizes of service providers4 7b7 ,accommodation of designated technical measures ,a covered service provider shall use commercially reasonable efforts to accommodate and not interfere with designated technical measures that apply to that covered service provider4 7c7 ,authority of the ,librarian 7#a7 ,designation of technical measures ,the ,librarian may1 at the recommendation of the ,register1 and as provided in subsections 7d7 and 7e7-- 7,a7 designate proposed technical measures that-- 7i7 are available to any person on-- 7,i7 nondiscriminatory terms2 and 7,,ii7 7aa7 a royalty-free basis2 or 7bb7 a reasonable royalty basis2 and 7ii7 do not impose substantial and disproportionate costs on service providers or substantial and disproportionate burdens on their systems or networks2 7,b7 rescind previously designated technical measures2 or 7,c7 revise previously designated 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 #bjbb 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 designated 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 designated technical measure1 as appropriate1 the petition shall detail with specificity-- 7,a7 the type of copyrighted works1 or any subset thereof1 intended to be covered by the technical measure2 7,b7 the type of service provider1 or any subset thereof1 intended to be covered by the technical measure2 and 7,c7 how the proposed technical measure or the designated technical measure proposed to be revised meets both the definition of technical measure under subsection 7a7 and the criteria set forth in subsection 7c77#a77;,a74 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 designated technical measure4 7,b7 ,the ,librarian shall reject without a rulemaking proceeding a petition that proposes the designation or revision of a privately owned technical measure1 unless the petition is filed or joined by the owner of the technical measure proposed to be designated or 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 ,register1 which shall include written input from relevant technical experts4 7#b7 ,factors for examination by ,register ,for any rulemaking process the ,librarian has begun under subsection 7d77#c77;,a71 with respect to each technical measure1 the ,register shall examine-- 7,a7 the availability and use of the technical measure to identify1 manage1 or protect particular types of copyrighted works on particular types of services2 7,b7 the terms on which the technical measure is and will be made available to any person under subsection 7c77#a77;,a77i71 including whether there are any intellectual property rights that need to be licensed by service providers to accommodate the technical measure2 7,c7 the total cost that accommodating or not interfering with the technical measure may impose on the type of service providers described in the petition2 7,d7 the burden the technical measure may impose on the systems or networks of service providers1 as compared to-- 7i7 the total amount of alleged or demonstrated infringing activity occurring over systems or networks controlled by the type of service providers described in the petition2 7ii7 the revenue and other financial resources of the type of service providers described in the petition2 and 7iii7 any mitigation of costs or other benefits or savings that the type of service providers described in the petition may achieve by accommodating or not interfering with the technical measure2 7,e7 in the case of a proposed technical measure1 whether the proposed technical measure is also a standard technical measure1 as defined in section #eab7;i71 to avoid designating a technical measure that is otherwise a standard technical measure2 7,f7 the positive or negative impact the technical measure may have on criticism1 comment1 news reporting1 teaching1 scholarship1 research1 increasing information sharing1 or other relevant public interest considerations2 7,g7 whether the technical measure poses an undue cybersecurity threat 7as defined in section #ajb of the ,cybersecurity ,information ,sharing ,act of #bjae 7#f ,u4,s4,c #aeja77 to1 or would create a security vulnerability 7as defined in such section #ajb7 for1 the information systems of the affected service providers2 7,h7 the impact the technical measure may have on privacy and data protection2 7,i7 the impact the technical measure may have on competition among service providers1 and the impact it may have on competition among copyright owners2 7,j7 whether certain categories or types of service providers should be exempt from the subset of service providers covered by a designation1 such as-- 7i7 libraries2 7ii7 educational institutions2 or 7iii7 corporate or not-for-profit websites that permit user comments or posts1 but have never or rarely had infringing activity on their services2 and 7,k7 in the case of a proposed technical measure1 whether-- 7i7 the proposed technical measure may conflict or interfere with other proposed technical measures or designated technical measures2 or 7ii7 multiple proposed technical measures and designated technical measures should be subsumed under a broader category of designated technical measures4 7#c7 ,recommendation 7,a7 ,in general ,the ,register shall make a recommendation that includes written input from the ,chief ,technology ,advisor to the ,librarian on each proposed technical measure1 and each designated technical measure proposed to be revised or rescinded1 that is considered under the rulemaking process under this subsection1 after consulting with1 and reporting and commenting on the views of1 the following1 as appropriate3 7i7 ,the ,director of the ,national ,institute of ,standards and ,technology4 7ii7 ,the ,assistant ,secretary of ,commerce for ,communications and ,information4 7iii7 ,the ,attorney ,general1 for the purpose of providing an analysis of the impact a proposed technical measure may have on competition among service providers or copyright owners1 as appropriate4 7iv7 ,any relevant cybersecurity agency4 7,b7 ,resolution of disagreement ,if there is substantial disagreement between the recommendation of the ,register and any of the views expressed by the agencies consulted under subparagraph 7,a71 the ,librarian shall explain in writing the reasons for the resolution of the disagreement as part of the decision under paragraph 7#d74 7#d7 ,decision ,if1 at the conclusion of the rulemaking process under this subsection1 the ,librarian determines that the record supports the designation of a proposed technical measure1 or a rescission or revision of a designated technical measure1 the ,librarian shall-- 7,a7 7i7 for a proposed technical measure1 designate the proposed technical measure2 or 7ii7 for a designated technical measure proposed to be revised1 designate the revised technical measure2 7,b7 for a proposed technical measure or a designated technical measure proposed to be revised-- 7i7 describe1 as part of the designation under subparagraph 7,a71 the type of copyrighted work1 or any subset thereof1 and the 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 designated technical measure proposed to be rescinded1 rescind the technical measure2 7,d7 for a proposed technical measure or a designated technical measure proposed to be revised1 provide examples or a definition with specificity for what accommodate means for the technical measure1 taking into account how different covered service providers to which the technical measure applies may have to accommodate differently based on their size or other relevant characteristics2 7,e7 publish a list of designated technical measures1 including the description required under subparagraph 7,b77i71 in effect after the ,librarian has designated1 revised1 and rescinded technical measures under this 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 designated technical measure1 publish a deadline1 which shall not be earlier than #a year after the date of publication1 by which 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 aggrieved by a violation of subsection 7b7 by a covered service provider may bring a civil action against the covered service provider in an appropriate ,united ,states district court4 7#b7 ,authority of the court ,in an action brought under paragraph 7#a71 the court may-- 7,a7 grant a temporary or permanent injunction on such terms as it determines reasonable to prevent or restrain a violation2 7,b7 award damages1 in accordance with paragraph 7#c72 7,c7 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,d7 award1 in its discretion1 reasonable attorney fees or 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 in an action brought by a copyright owner against a service provider under paragraph 7#a71 the court shall award to the copyright owner the actual damages suffered by the copyright owner as a result of the violation4 7,b7 ,statutory damages 7i7 ,in general ,in an action brought under paragraph 7#a71 the copyright owner may elect to recover1 in lieu of actual damages1 an award of statutory damages in an amount that is-- 7,i7 not less than #bjj and not more than #be1jjj per violation1 as the court considers just2 and 7,,ii7 not more than #aej1jjj in the aggregate4 7ii7 ,repeated ,violations 7,i7 #b or more violations ,if1 in an action brought against a service provider under paragraph 7#a71 the copyright owner proves that the service provider violated subsection 7b7 not less than #a time during the #c-year period beginning on the date of a final judgment entered against the service provider for a violation of that subsection1 the copyright owner may elect to recover an award of statutory damages in an amount that is-- 7aa7 not less than #e1jjj and not more than #djj1jjj per violation1 as the court considers just2 and 7bb7 not more than #hjj1jjj in the aggregate4 7,,ii7 #c or more violations ,if1 in an action brought against a service provider under paragraph 7#a71 the copyright owner proves that the service provider violated subsection 7b7 not fewer than #b times during the #e-year period beginning on the date of a final judgment entered against the service provider for a violation of that subsection1 the court may increase the award of damages to not more than triple the amount that would otherwise be awarded under subparagraph 7,a7 or subclause 7,i7 of this clause1 as the court considers just4 7,c7 ,innocent ,violations ,the court1 in its discretion1 may reduce or remit the total award of damages in any action brought against a service provider under paragraph 7#a7-- 7i7 in which the service provider proves by a preponderance of the evidence that the service provider was not aware and had no reason to believe that its acts constituted a violation of subsection 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 certain technical measures to identify1 protect1 or manage copyrighted works4 4 #d4 ,advisors 7a7 ,advisors to the ,register ,chapter #g of title #ag1 ,united ,states ,code1 is amended by adding at the end the following3 #gaa4 ,advisors to the ,register 7a7 ,chief ,economist ,not later than #ahj days after the date of enactment of the ,,smart ,copyright ,act of #bjbb1 the ,register shall appoint a ,chief ,economist within the ,office of the ,register1 who shall advise the ,register on issues related to economic policy and copyright4 7b7 ,chief ,technology ,advisor 7#a7 ,in general ,not later than #ahj days after the date of enactment of the ,,smart ,copyright ,act of #bjbb1 the ,register shall appoint a ,chief ,technology ,advisor1 who shall advise the ,register on technology issues related to copyright law1 including by evaluating and providing advice on the factors in section #ead7;e77#b74 7#b7 ,qualifications ,the individual appointed as ,chief ,technology ,advisor under paragraph 7#a7 shall have significant technical expertise1 including experience with computer software1 standards1 and technological measures relevant to copyright law4 7#c7 ,term ,the individual appointed as ,chief ,technology ,advisor under paragraph 7#a7 shall serve for a limited term to be determined by the ,register1 but not to exceed #e years4 4 7b7 ,technical and conforming amendment ,the table of sections for chapter #g of title #ag1 ,united ,states ,code1 is amended by adding at the end the following3 #gaa4 ,advisors to the ,register4 4