Page 156 TITLE 17—COPYRIGHTS § 1001 CHAPTER 10

§ 1001 TITLE 17—COPYRIGHTS Page 156

AMENDMENTS ‘‘(3) the World Intellectual Property Organization 1991—Subsec. (a)(1)(B). Pub. L. 102–64, § 3(1), inserted has commenced meetings to draft an international ‘‘or implementing’’ after ‘‘enacting’’. convention regarding the protection of integrated Subsec. (e). Pub. L. 102–64, § 3(2), substituted ‘‘July 1, electronic circuits; 1995’’ for ‘‘July 1, 1991’’. ‘‘(4) these bilateral and multilateral developments Subsec. (f)(2). Pub. L. 102–64, § 4, substituted ‘‘July 1, are encouraging steps toward improving inter- 1994’’ for ‘‘July 1, 1990’’. national protection of mask works in a consistent 1987—Subsec. (e). Pub. L. 100–159, § 2, substituted ‘‘on and harmonious manner; and July 1, 1991’’ for ‘‘three years after such date of enact- ‘‘(5) it is inherent in section 902 of title 17, United ment’’. States Code, that the President has the authority to Subsec. (f)(2). Pub. L. 100–159, § 4, which directed the revise, suspend, or revoke, as well as issue, proclama- amendment of subsec. (f) by inserting at end ‘‘Not later tions extending mask work protection to nationals, than July 1, 1990, the Secretary of Commerce, in con- domiciliaries, and sovereign authorities of other sultation with the Register of Copyrights, shall trans- countries, if conditions warrant. mit to the Committees on the Judiciary of the Senate ‘‘(b) PURPOSES.—The purposes of this Act [amending and the House of Representatives a report updating the this section and section 902 of this title] are— matters contained in the report transmitted under the ‘‘(1) to extend the period within which the Sec- preceding sentence.’’, was executed by inserting new retary of Commerce may grant interim protective or- language at end of par. (2) of subsec. (f) as the probable ders under section 914 of title 17, United States Code, intent of Congress. to continue this incentive for the bilateral and multilateral protection of mask works; and FINDINGS AND PURPOSES ‘‘(2) to codify the President’s existing authority to Section 2 of Pub. L. 102–64 provided that: revoke, suspend, or limit the protection extended to ‘‘(a) FINDINGS.—The Congress finds that— mask works of foreign entities in nations that extend ‘‘(1) section 914 of title 17, United States Code, mask work protection to United States nationals.’’ which authorizes the Secretary of Commerce to issue orders extending interim protection under chapter 9 CHAPTER 10—DIGITAL AUDIO RECORDING of title 17, United States Code, to mask works fixed DEVICES AND MEDIA in semiconductor chip products and originating in foreign countries that are making good faith efforts SUBCHAPTER A—DEFINITIONS and reasonable progress toward providing protection, Sec. by treaty or legislation, to mask works of United 1001. Definitions. States nationals, has resulted in substantial and posi- tive legislative developments in foreign countries re- SUBCHAPTER B—COPYING CONTROLS garding protection of mask works; 1002. Incorporation of copying controls. ‘‘(2) the Secretary of Commerce has determined that most of the industrialized countries of the world SUBCHAPTER C—ROYALTY PAYMENTS are eligible for orders affording interim protection 1003. Obligation to make royalty payments. under section 914 of title 17, United States Code; 1004. Royalty payments. ‘‘(3) no multilateral treaty recognizing the protec- 1005. Deposit of royalty payments and deduction of tion of mask works has come into force, nor has the expenses. United States become bound by any multilateral 1006. Entitlement to royalty payments. agreement regarding such protection; and 1007. Procedures for distributing royalty pay- ‘‘(4) bilateral and multilateral relationships regard- ments. ing the protection of mask works should be directed toward the international protection of mask works in SUBCHAPTER D—PROHIBITION ON CERTAIN IN- an effective, consistent, and harmonious manner, and FRINGEMENT ACTIONS, REMEDIES, AND ARBI- the existing bilateral authority of the Secretary of TRATION Commerce under chapter 9 of title 17, United States 1008. Prohibition on certain infringement actions. Code, should be extended to facilitate the continued 1009. Civil remedies. development of protection for mask works. 1010. Arbitration of certain disputes. ‘‘(b) PURPOSES.—The purposes of this Act [amending this section and enacting provisions set out as a note CHAPTER REFERRED TO IN OTHER SECTIONS under section 901 of this title] are— ‘‘(1) to extend the period within which the Sec- This chapter is referred to in sections 802, 912 of this retary of Commerce may grant interim protection or- title. ders under section 914 of title 17, United States Code, to continue the incentive for the bilateral and multi- SUBCHAPTER A—DEFINITIONS lateral protection of mask works; and ‘‘(2) to clarify the Secretary’s authority to issue § 1001. Definitions such interim protection orders.’’ Section 1 of Pub. L. 100–159, as amended by Pub. L. As used in this chapter, the following terms 105–80, § 12(b)(1), Nov. 13, 1997, 111 Stat. 1536, provided have the following meanings: that: (1) A ‘‘digital audio copied recording’’ is a ‘‘(a) FINDINGS.—The Congress finds that— reproduction in a digital recording format of a ‘‘(1) section 914 of title 17, United States Code, digital musical recording, whether that repro- which authorizes the Secretary of Commerce to issue orders extending interim protection under chapter 9 duction is made directly from another digital of title 17, United States Code, to mask works fixed musical recording or indirectly from a trans- in semiconductor chip products and originating in mission. foreign countries that are making good faith efforts (2) A ‘‘digital audio interface device’’ is any and reasonable progress toward providing protection, machine or device that is designed specifically by treaty or legislation, to mask works of United to communicate digital audio information and States nationals, has resulted in substantial and posi- related interface data to a digital audio re- tive legislative developments in foreign countries recording device through a nonprofessional garding protection of mask works; ‘‘(2) the Secretary of Commerce has determined interface. that most of the industrialized countries of the world (3) A ‘‘digital audio recording device’’ is any are eligible for orders affording interim protection machine or device of a type commonly distrib- under section 914 of title 17, United States Code; uted to individuals for use by individuals, Page 157 TITLE 17—COPYRIGHTS § 1001

whether or not included with or as part of sound recording of a musical work that has some other machine or device, the digital re- been embodied in a digital musical recording cording function of which is designed or mar- or analog musical recording lawfully made keted for the primary purpose of, and that is under this title that has been distributed; capable of, making a digital audio copied re- (B) the legal or beneficial owner of, or the cording for private use, except for— person that controls, the right to reproduce (A) professional model products, and in a digital musical recording or analog mu- (B) dictation machines, answering ma- sical recording a musical work that has been chines, and other audio recording equipment embodied in a digital musical recording or that is designed and marketed primarily for analog musical recording lawfully made the creation of sound recordings resulting under this title that has been distributed; from the fixation of nonmusical sounds. (C) a featured recording artist who per- (4)(A) A ‘‘digital audio recording medium’’ is forms on a sound recording that has been any material object in a form commonly dis- distributed; or tributed for use by individuals, that is pri- (D) any association or other organization— marily marketed or most commonly used by (i) representing persons specified in sub- consumers for the purpose of making digital paragraph (A), (B), or (C), or audio copied recordings by use of a digital (ii) engaged in licensing rights in musi- audio recording device. cal works to music users on behalf of writ- (B) Such term does not include any material ers and publishers. object— (i) that embodies a sound recording at the (8) To ‘‘manufacture’’ means to produce or time it is first distributed by the importer or assemble a product in the United States. A manufacturer; or ‘‘manufacturer’’ is a person who manufac- (ii) that is primarily marketed and most tures. commonly used by consumers either for the (9) A ‘‘music publisher’’ is a person that is purpose of making copies of motion pictures authorized to license the reproduction of a or other audiovisual works or for the pur- particular musical work in a sound recording. pose of making copies of nonmusical literary (10) A ‘‘professional model product’’ is an works, including computer programs or data audio recording device that is designed, manu- bases. factured, marketed, and intended for use by (5)(A) A ‘‘digital musical recording’’ is a ma- recording professionals in the ordinary course terial object— of a lawful business, in accordance with such (i) in which are fixed, in a digital recording requirements as the Secretary of Commerce format, only sounds, and material, state- shall establish by regulation. ments, or instructions incidental to those (11) The term ‘‘serial copying’’ means the fixed sounds, if any, and duplication in a digital format of a copy- (ii) from which the sounds and material righted musical work or sound recording from can be perceived, reproduced, or otherwise a digital reproduction of a digital musical re- communicated, either directly or with the cording. The term ‘‘digital reproduction of a aid of a machine or device. digital musical recording’’ does not include a (B) A ‘‘digital musical recording’’ does not digital musical recording as distributed, by include a material object— authority of the copyright owner, for ultimate (i) in which the fixed sounds consist en- sale to consumers. tirely of spoken word recordings, or (12) The ‘‘transfer price’’ of a digital audio (ii) in which one or more computer pro- recording device or a digital audio recording grams are fixed, except that a digital musi- medium— cal recording may contain statements or in- (A) is, subject to subparagraph (B)— structions constituting the fixed sounds and incidental material, and statements or in- (i) in the case of an imported product, structions to be used directly or indirectly the actual entered value at United States in order to bring about the perception, re- Customs (exclusive of any freight, insur- production, or communication of the fixed ance, and applicable duty), and sounds and incidental material. (ii) in the case of a domestic product, the manufacturer’s transfer price (FOB the (C) For purposes of this paragraph— manufacturer, and exclusive of any direct (i) a ‘‘spoken word recording’’ is a sound sales taxes or excise taxes incurred in con- recording in which are fixed only a series of nection with the sale); and spoken words, except that the spoken words may be accompanied by incidental musical (B) shall, in a case in which the transferor or other sounds, and and transferee are related entities or within (ii) the term ‘‘incidental’’ means related to a single entity, not be less than a reasonable and relatively minor by comparison. arms-length price under the principles of the (6) ‘‘Distribute’’ means to sell, lease, or as- regulations adopted pursuant to section 482 sign a product to consumers in the United of the Internal Revenue Code of 1986, or any States, or to sell, lease, or assign a product in successor provision to such section. the United States for ultimate transfer to con- (13) A ‘‘writer’’ is the composer or lyricist of sumers in the United States. a particular musical work. (7) An ‘‘interested copyright party’’ is— (A) the owner of the exclusive right under (Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. section 106(1) of this title to reproduce a 4237.) § 1002 TITLE 17—COPYRIGHTS Page 158

REFERENCES IN TEXT or otherwise communicates to the public any Section 482 of the Internal Revenue Code of 1986, re- sound recording in digital format is not required ferred to in par. (12)(B), is classified to section 482 of under this chapter to transmit or otherwise Title 26, Internal Revenue Code. communicate the information relating to the EFFECTIVE DATE copyright status of the sound recording. Any such person who does transmit or otherwise Section 4 of Pub. L. 102–563 provided that: ‘‘This Act communicate such copyright status information [see Short Title note below] and the amendments made by this Act shall take effect on the date of the enact- shall transmit or communicate such informa- ment of this Act [Oct. 28, 1992].’’ tion accurately.

SHORT TITLE (Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. Section 1 of Pub. L. 102–563 provided that: ‘‘This Act 4240.) [enacting this chapter, amending sections 101, 801, 804, SECTION REFERRED TO IN OTHER SECTIONS and 912 of this title, and section 1337 of Title 19, Cus- toms Duties, and enacting provisions set out as a note This section is referred to in sections 114, 115, 1009, above] may be cited as the ‘Audio Home Recording Act 1010 of this title. of 1992’.’’ SUBCHAPTER C—ROYALTY PAYMENTS SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1006, 1007 of this § 1003. Obligation to make royalty payments title. (a) PROHIBITION ON IMPORTATION AND MANUFAC- SUBCHAPTER B—COPYING CONTROLS TURE.—No person shall import into and distribute, or manufacture and distribute, any digital § 1002. Incorporation of copying controls audio recording device or digital audio recording (a) PROHIBITION ON IMPORTATION, MANUFAC- medium unless such person records the notice TURE, AND DISTRIBUTION.—No person shall im- specified by this section and subsequently depos- port, manufacture, or distribute any digital its the statements of account and applicable audio recording device or digital audio interface royalty payments for such device or medium device that does not conform to— specified in section 1004. (1) the Serial Copy Management System; (b) FILING OF NOTICE.—The importer or manu- (2) a system that has the same functional facturer of any digital audio recording device or characteristics as the Serial Copy Manage- digital audio recording medium, within a prod- ment System and requires that copyright and uct category or utilizing a technology with re- generation status information be accurately spect to which such manufacturer or importer sent, received, and acted upon between devices has not previously filed a notice under this sub- using the system’s method of serial copying section, shall file with the Register of Copy- regulation and devices using the Serial Copy rights a notice with respect to such device or Management System; or medium, in such form and content as the Reg- (3) any other system certified by the Sec- ister shall prescribe by regulation. retary of Commerce as prohibiting unauthor- (c) FILING OF QUARTERLY AND ANNUAL STATE- ized serial copying. MENTS OF ACCOUNT.— (b) DEVELOPMENT OF VERIFICATION PROCE- (1) GENERALLY.—Any importer or manufac- DURE.—The Secretary of Commerce shall estab- turer that distributes any digital audio re- lish a procedure to verify, upon the petition of cording device or digital audio recording me- an interested party, that a system meets the dium that it manufactured or imported shall standards set forth in subsection (a)(2). file with the Register of Copyrights, in such (c) PROHIBITION ON CIRCUMVENTION OF THE SYS- form and content as the Register shall pre- TEM.—No person shall import, manufacture, or scribe by regulation, such quarterly and an- distribute any device, or offer or perform any nual statements of account with respect to service, the primary purpose or effect of which such distribution as the Register shall pre- is to avoid, bypass, remove, deactivate, or other- scribe by regulation. wise circumvent any program or circuit which (2) CERTIFICATION, VERIFICATION, AND CON- implements, in whole or in part, a system de- FIDENTIALITY.—Each such statement shall be scribed in subsection (a). certified as accurate by an authorized officer (d) ENCODING OF INFORMATION ON DIGITAL MUSI- or principal of the importer or manufacturer. CAL RECORDINGS.— The Register shall issue regulations to provide (1) PROHIBITION ON ENCODING INACCURATE IN- for the verification and audit of such state- FORMATION.—No person shall encode a digital ments and to protect the confidentiality of the musical recording of a sound recording with information contained in such statements. inaccurate information relating to the cat- Such regulations shall provide for the disclo- egory code, copyright status, or generation sure, in confidence, of such statements to in- status of the source material for the record- terested copyright parties. ing. (3) ROYALTY PAYMENTS.—Each such state- (2) ENCODING OF COPYRIGHT STATUS NOT RE- ment shall be accompanied by the royalty QUIRED.—Nothing in this chapter requires any payments specified in section 1004. person engaged in the importation or manufacture of digital musical recordings to encode (Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. any such digital musical recording with re- 4240.) spect to its copyright status. SECTION REFERRED TO IN OTHER SECTIONS (e) INFORMATION ACCOMPANYING TRANSMISSIONS This section is referred to in sections 801, 802, 1004, IN DIGITAL FORMAT.—Any person who transmits 1009, 1010 of this title. Page 159 TITLE 17—COPYRIGHTS § 1006

§ 1004. Royalty payments digital audio recording medium imported into and distributed in the United States, or manu- (a) DIGITAL AUDIO RECORDING DEVICES.— (1) AMOUNT OF PAYMENT.—The royalty pay- factured and distributed in the United States, ment due under section 1003 for each digital shall be 3 percent of the transfer price. Only the audio recording device imported into and dis- first person to manufacture and distribute or tributed in the United States, or manufac- import and distribute such medium shall be re- tured and distributed in the United States, quired to pay the royalty with respect to such shall be 2 percent of the transfer price. Only medium. the first person to manufacture and distribute (Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. or import and distribute such device shall be 4241; amended Pub. L. 103–198, § 6(b)(1), Dec. 17, required to pay the royalty with respect to 1993, 107 Stat. 2312.) such device. (2) CALCULATION FOR DEVICES DISTRIBUTED REFERENCES IN TEXT WITH OTHER DEVICES.—With respect to a digital The effective date of this chapter, referred to in sub- audio recording device first distributed in sec. (a)(3), is Oct. 28, 1992. See Effective Date note set combination with one or more devices, either out under section 1001 of this title. as a physically integrated unit or as separate AMENDMENTS components, the royalty payment shall be cal- culated as follows: 1993—Subsec. (a)(3). Pub. L. 103–198 substituted ‘‘Li- (A) If the digital audio recording device brarian of Congress’’ for ‘‘Copyright Royalty Tribunal’’ and such other devices are part of a phys- after ‘‘may petition the’’ and for ‘‘Tribunal’’ before ‘‘shall prospectively’’. ically integrated unit, the royalty payment shall be based on the transfer price of the SECTION REFERRED TO IN OTHER SECTIONS unit, but shall be reduced by any royalty This section is referred to in sections 1003, 1009 of this payment made on any digital audio record- title. ing device included within the unit that was not first distributed in combination with the § 1005. Deposit of royalty payments and deduc- unit. tion of expenses (B) If the digital audio recording device is The Register of Copyrights shall receive all not part of a physically integrated unit and royalty payments deposited under this chapter substantially similar devices have been dis- and, after deducting the reasonable costs in- tributed separately at any time during the preceding 4 calendar quarters, the royalty curred by the Copyright Office under this chap- payment shall be based on the average trans- ter, shall deposit the balance in the Treasury of fer price of such devices during those 4 quar- the United States as offsetting receipts, in such ters. manner as the Secretary of the Treasury di- (C) If the digital audio recording device is rects. All funds held by the Secretary of the not part of a physically integrated unit and Treasury shall be invested in interest-bearing substantially similar devices have not been United States securities for later distribution distributed separately at any time during with interest under section 1007. The Register the preceding 4 calendar quarters, the roy- may, in the Register’s discretion, 4 years after alty payment shall be based on a con- the close of any calendar year, close out the roy- structed price reflecting the proportional alty payments account for that calendar year, value of such device to the combination as a and may treat any funds remaining in such ac- whole. count and any subsequent deposits that would otherwise be attributable to that calendar year (3) LIMITS ON ROYALTIES.—Notwithstanding as attributable to the succeeding calendar year. paragraph (1) or (2), the amount of the royalty payment for each digital audio recording de- (Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. vice shall not be less than $1 nor more than 4242; amended Pub. L. 103–198, § 6(b)(2), Dec. 17, the royalty maximum. The royalty maximum 1993, 107 Stat. 2312.) shall be $8 per device, except that in the case AMENDMENTS of a physically integrated unit containing more than 1 digital audio recording device, the 1993—Pub. L. 103–198 struck out at end ‘‘The Register royalty maximum for such unit shall be $12. shall submit to the Copyright Royalty Tribunal, on a During the 6th year after the effective date of monthly basis, a financial statement reporting the this chapter, and not more than once each amount of royalties under this chapter that are available for distribution.’’ year thereafter, any interested copyright party may petition the Librarian of Congress SECTION REFERRED TO IN OTHER SECTIONS to increase the royalty maximum and, if more This section is referred to in sections 801, 1006, 1009 of than 20 percent of the royalty payments are at this title. the relevant royalty maximum, the Librarian of Congress shall prospectively increase such § 1006. Entitlement to royalty payments royalty maximum with the goal of having no (a) INTERESTED COPYRIGHT PARTIES.—The roy- more than 10 percent of such payments at the alty payments deposited pursuant to section new royalty maximum; however the amount of 1005 shall, in accordance with the procedures any such increase as a percentage of the roy- specified in section 1007, be distributed to any alty maximum shall in no event exceed the interested copyright party— percentage increase in the Consumer Price (1) whose musical work or sound recording Index during the period under review. has been— (b) DIGITAL AUDIO RECORDING MEDIA.—The roy- (A) embodied in a digital musical record- alty payment due under section 1003 for each ing or an analog musical recording lawfully § 1007 TITLE 17—COPYRIGHTS Page 160

made under this title that has been distrib- (2) for the Musical Works Fund, each musi- uted, and cal work was distributed in the form of digital (B) distributed in the form of digital musi- musical recordings or analog musical record- cal recordings or analog musical recordings ings or disseminated to the public in trans- or disseminated to the public in transmissions. missions, during the period to which such payments pertain; and (Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. 4242; amended Pub. L. 103–198, § 6(b)(3), Dec. 17, (2) who has filed a claim under section 1007. 1993, 107 Stat. 2312; Pub. L. 105–80, § 12(a)(24), Nov. (b) ALLOCATION OF ROYALTY PAYMENTS TO 13, 1997, 111 Stat. 1535.) GROUPS.—The royalty payments shall be divided AMENDMENTS into 2 funds as follows: (1) THE SOUND RECORDINGS FUND.—662⁄3 per- 1997—Subsec. (b)(1). Pub. L. 105–80 substituted ‘‘Fed- cent of the royalty payments shall be allo- eration of Television’’ for ‘‘Federation Television’’ before ‘‘and Radio Artists or any successor entity)’’. cated to the Sound Recordings Fund. 25⁄8 per- 1993—Subsec. (c). Pub. L. 103–198 substituted ‘‘Librar- cent of the royalty payments allocated to the ian of Congress shall convene a copyright arbitration Sound Recordings Fund shall be placed in an royalty panel which’’ for ‘‘Copyright Royalty Tribu- escrow account managed by an independent nal’’ in introductory provisions. administrator jointly appointed by the interested copyright parties described in section SECTION REFERRED TO IN OTHER SECTIONS 1001(7)(A) and the American Federation of Mu- This section is referred to in sections 802, 1007 of this sicians (or any successor entity) to be distrib- title. uted to nonfeatured musicians (whether or not § 1007. Procedures for distributing royalty pay- members of the American Federation of Musi- ments cians or any successor entity) who have performed on sound recordings distributed in the (a) FILING OF CLAIMS AND NEGOTIATIONS.— United States. 13⁄8 percent of the royalty pay- (1) FILING OF CLAIMS.—During the first 2 ments allocated to the Sound Recordings Fund months of each calendar year after calendar shall be placed in an escrow account managed year 1992, every interested copyright party by an independent administrator jointly ap- seeking to receive royalty payments to which pointed by the interested copyright parties de- such party is entitled under section 1006 shall scribed in section 1001(7)(A) and the American file with the Librarian of Congress a claim for Federation of Television and Radio Artists (or payments collected during the preceding year any successor entity) to be distributed to non- in such form and manner as the Librarian of featured vocalists (whether or not members of Congress shall prescribe by regulation. the American Federation of Television and (2) NEGOTIATIONS.—Notwithstanding any pro- Radio Artists or any successor entity) who vision of the antitrust laws, for purposes of have performed on sound recordings distrib- this section interested copyright parties with- uted in the United States. 40 percent of the re- in each group specified in section 1006(b) may maining royalty payments in the Sound Re- agree among themselves to the proportionate cordings Fund shall be distributed to the in- division of royalty payments, may lump their terested copyright parties described in section claims together and file them jointly or as a 1001(7)(C), and 60 percent of such remaining single claim, or may designate a common royalty payments shall be distributed to the agent, including any organization described in interested copyright parties described in sec- section 1001(7)(D), to negotiate or receive pay- tion 1001(7)(A). ment on their behalf; except that no agree- (2) THE MUSICAL WORKS FUND.— 1 ment under this subsection may modify the al- (A) 33 ⁄3 percent of the royalty payments location of royalties specified in section shall be allocated to the Musical Works 1006(b). Fund for distribution to interested copyright parties described in section 1001(7)(B). (b) DISTRIBUTION OF PAYMENTS IN THE ABSENCE (B)(i) Music publishers shall be entitled to OF A DISPUTE.—After the period established for 50 percent of the royalty payments allocated the filing of claims under subsection (a), in each to the Musical Works Fund. year after 1992, the Librarian of Congress shall (ii) Writers shall be entitled to the other 50 determine whether there exists a controversy percent of the royalty payments allocated to concerning the distribution of royalty payments the Musical Works Fund. under section 1006(c). If the Librarian of Con- (c) ALLOCATION OF ROYALTY PAYMENTS WITHIN gress determines that no such controversy ex- GROUPS.—If all interested copyright parties ists, the Librarian of Congress shall, within 30 within a group specified in subsection (b) do not days after such determination, authorize the agree on a voluntary proposal for the distribu- distribution of the royalty payments as set forth tion of the royalty payments within each group, in the agreements regarding the distribution of the Librarian of Congress shall convene a copy- royalty payments entered into pursuant to sub- right arbitration royalty panel which shall, pur- section (a), after deducting its reasonable ad- suant to the procedures specified under section ministrative costs under this section. 1007(c), allocate royalty payments under this (c) RESOLUTION OF DISPUTES.—If the Librarian section based on the extent to which, during the of Congress finds the existence of a controversy, relevant period— the Librarian shall, pursuant to chapter 8 of this (1) for the Sound Recordings Fund, each title, convene a copyright arbitration royalty sound recording was distributed in the form of panel to determine the distribution of royalty digital musical recordings or analog musical payments. During the pendency of such a pro- recordings; and ceeding, the Librarian of Congress shall with- Page 161 TITLE 17—COPYRIGHTS § 1009 hold from distribution an amount sufficient to (b) OTHER CIVIL ACTIONS.—Any person injured satisfy all claims with respect to which a con- by a violation of this chapter may bring a civil troversy exists, but shall, to the extent feasible, action in an appropriate United States district authorize the distribution of any amounts that court for actual damages incurred as a result of are not in controversy. The Librarian of Con- such violation. gress shall, before authorizing the distribution (c) POWERS OF THE COURT.—In an action of such royalty payments, deduct the reasonable brought under subsection (a), the court— administrative costs incurred by the Librarian (1) may grant temporary and permanent in- under this section. junctions on such terms as it deems reasonable to prevent or restrain such violation; (Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. (2) in the case of a violation of section 1002, 4244; amended Pub. L. 103–198, § 6(b)(4), Dec. 17, or in the case of an injury resulting from a 1993, 107 Stat. 2312; Pub. L. 105–80, §§ 9, 12(a)(25), failure to make royalty payments required by Nov. 13, 1997, 111 Stat. 1534, 1535.) section 1003, shall award damages under sub- AMENDMENTS section (d); (3) in its discretion may allow the recovery 1997—Subsec. (a)(1). Pub. L. 105–80, § 12(a)(25)(A), sub- of costs by or against any party other than the stituted ‘‘calendar year 1992’’ for ‘‘the calendar year in which this chapter takes effect’’. United States or an officer thereof; and Subsec. (b). Pub. L. 105–80, §§ 9, 12(a)(25)(B), sub- (4) in its discretion may award a reasonable stituted ‘‘After the period established’’ for ‘‘Within 30 attorney’s fee to the prevailing party. days after the period established’’ and ‘‘each year after (d) AWARD OF DAMAGES.— 1992’’ for ‘‘each year after the year in which this section (1) DAMAGES FOR SECTION 1002 OR 1003 VIOLA- takes effect’’. TIONS.— 1993—Subsec. (a)(1). Pub. L. 103–198, § 6(b)(4)(A), sub- (A) ACTUAL DAMAGES.—(i) In an action stituted ‘‘Librarian of Congress’’ for ‘‘Copyright Roy- alty Tribunal’’ before ‘‘a claim for’’ and for ‘‘Tribunal’’ brought under subsection (a), if the court before ‘‘shall prescribe’’. finds that a violation of section 1002 or 1003 Subsec. (b). Pub. L. 103–198, § 6(b)(4)(B), substituted has occurred, the court shall award to the ‘‘Librarian of Congress’’ for ‘‘Copyright Royalty Tribu- complaining party its actual damages if the nal’’ before ‘‘shall determine whether’’ and for ‘‘Tribu- complaining party elects such damages at nal’’ wherever appearing. any time before final judgment is entered. Subsec. (c). Pub. L. 103–198, § 6(b)(4)(C), substituted (ii) In the case of section 1003, actual dam- first sentence for ‘‘If the Tribunal finds the existence of ages shall constitute the royalty payments a controversy, it shall, pursuant to chapter 8 of this that should have been paid under section title, conduct a proceeding to determine the distribution of royalty payments.’’, substituted ‘‘Librarian of 1004 and deposited under section 1005. In such Congress’’ for ‘‘Tribunal’’ wherever appearing in second a case, the court, in its discretion, may and third sentences, and ‘‘the reasonable administra- award an additional amount of not to exceed tive costs incurred by the Librarian’’ for ‘‘its reason- 50 percent of the actual damages. able administrative costs’’ in last sentence. (B) STATUTORY DAMAGES FOR SECTION 1002 VIOLATIONS.— SECTION REFERRED TO IN OTHER SECTIONS (i) DEVICE.—A complaining party may This section is referred to in sections 801, 803, 1005, recover an award of statutory damages for 1006 of this title. each violation of section 1002(a) or (c) in the sum of not more than $2,500 per device SUBCHAPTER D—PROHIBITION ON CERTAIN involved in such violation or per device on INFRINGEMENT ACTIONS, REMEDIES, which a service prohibited by section AND ARBITRATION 1002(c) has been performed, as the court § 1008. Prohibition on certain infringement ac- considers just. tions (ii) DIGITAL MUSICAL RECORDING.—A complaining party may recover an award of No action may be brought under this title al- statutory damages for each violation of leging infringement of copyright based on the section 1002(d) in the sum of not more than manufacture, importation, or distribution of a $25 per digital musical recording involved digital audio recording device, a digital audio in such violation, as the court considers recording medium, an analog recording device, just. or an analog recording medium, or based on the (iii) TRANSMISSION.—A complaining noncommercial use by a consumer of such a de- party may recover an award of damages vice or medium for making digital musical re- for each transmission or communication cordings or analog musical recordings. that violates section 1002(e) in the sum of (Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. not more than $10,000, as the court consid- 4244.) ers just. (2) REPEATED VIOLATIONS.—In any case in SECTION REFERRED TO IN OTHER SECTIONS which the court finds that a person has vio- This section is referred to in section 115 of this title; lated section 1002 or 1003 within 3 years after title 19 section 1337. a final judgment against that person for an- § 1009. Civil remedies other such violation was entered, the court may increase the award of damages to not (a) CIVIL ACTIONS.—Any interested copyright more than double the amounts that would party injured by a violation of section 1002 or otherwise be awarded under paragraph (1), as 1003 may bring a civil action in an appropriate the court considers just. United States district court against any person (3) INNOCENT VIOLATIONS OF SECTION 1002.— for such violation. The court in its discretion may reduce the § 1010 TITLE 17—COPYRIGHTS Page 162

total award of damages against a person vio- (c) STAY OF JUDICIAL PROCEEDINGS.—Any civil lating section 1002 to a sum of not less than action brought under section 1009 against a $250 in any case in which the court finds that party to arbitration under this section shall, on the violator was not aware and had no reason application of one of the parties to the arbitra- to believe that its acts constituted a violation tion, be stayed until completion of the arbitra- of section 1002. tion proceeding. (e) PAYMENT OF DAMAGES.—Any award of dam- (d) ARBITRATION PROCEEDING.—The Arbitration ages under subsection (d) shall be deposited with Panel shall conduct an arbitration proceeding the Register pursuant to section 1005 for dis- with respect to the matter concerned, in accord- tribution to interested copyright parties as ance with such procedures as it may adopt. The though such funds were royalty payments made Panel shall act on the basis of a fully docu- pursuant to section 1003. mented written record. Any party to the arbi- (f) IMPOUNDING OF ARTICLES.—At any time tration may submit relevant information and while an action under subsection (a) is pending, proposals to the Panel. The parties to the pro- the court may order the impounding, on such ceeding shall bear the entire cost thereof in such terms as it deems reasonable, of any digital manner and proportion as the Panel shall direct. audio recording device, digital musical record- (e) REPORT TO LIBRARIAN OF CONGRESS.—Not ing, or device specified in section 1002(c) that is later than 60 days after publication of the notice in the custody or control of the alleged violator under subsection (b) of the initiation of an arbi- and that the court has reasonable cause to be- tration proceeding, the Arbitration Panel shall lieve does not comply with, or was involved in a report to the Librarian of Congress its deter- violation of, section 1002. mination concerning whether the device con- (g) REMEDIAL MODIFICATION AND DESTRUCTION cerned is subject to section 1002, or the basis on OF ARTICLES.—In an action brought under sub- which royalty payments for the device are to be section (a), the court may, as part of a final made under section 1003. Such report shall be ac- judgment or decree finding a violation of section companied by the written record, and shall set 1002, order the remedial modification or the de- forth the facts that the Panel found relevant to struction of any digital audio recording device, its determination. digital musical recording, or device specified in (f) ACTION BY THE LIBRARIAN OF CONGRESS.— section 1002(c) that— (1) does not comply with, or was involved in Within 60 days after receiving the report of the a violation of, section 1002, and Arbitration Panel under subsection (e), the Li- (2) is in the custody or control of the viola- brarian of Congress shall adopt or reject the de- tor or has been impounded under subsection termination of the Panel. The Librarian of Con- (f). gress shall adopt the determination of the Panel unless the Librarian of Congress finds that the (Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. determination is clearly erroneous. If the Li- 4245.) brarian of Congress rejects the determination of SECTION REFERRED TO IN OTHER SECTIONS the Panel, the Librarian of Congress shall, be- This section is referred to in section 1010 of this title. fore the end of that 60-day period, and after full examination of the record created in the arbi- § 1010. Arbitration of certain disputes tration proceeding, issue an order setting forth (a) SCOPE OF ARBITRATION.—Before the date of the Librarian’s decision and the reasons there- first distribution in the United States of a digi- for. The Librarian of Congress shall cause to be tal audio recording device or a digital audio published in the Federal Register the determina- interface device, any party manufacturing, im- tion of the Panel and the decision of the Librar- porting, or distributing such device, and any in- ian of Congress under this subsection with re- terested copyright party may mutually agree to spect to the determination (including any order binding arbitration for the purpose of determin- issued under the preceding sentence). ing whether such device is subject to section (g) JUDICIAL REVIEW.—Any decision of the Li- 1002, or the basis on which royalty payments for brarian of Congress under subsection (f) with re- such device are to be made under section 1003. spect to a determination of the Arbitration (b) INITIATION OF ARBITRATION PROCEEDINGS.— Panel may be appealed, by a party to the arbi- Parties agreeing to such arbitration shall file a tration, to the United States Court of Appeals petition with the Librarian of Congress request- for the District of Columbia Circuit, within 30 ing the commencement of an arbitration pro- days after the publication of the decision in the ceeding. The petition may include the names Federal Register. The pendency of an appeal and qualifications of potential arbitrators. under this subsection shall not stay the decision Within 2 weeks after receiving such a petition, of the Librarian of Congress. The court shall the Librarian of Congress shall cause notice to have jurisdiction to modify or vacate a decision be published in the Federal Register of the initi- of the Librarian of Congress only if it finds, on ation of an arbitration proceeding. Such notice the basis of the record before the Librarian of shall include the names and qualifications of 3 Congress, that the Arbitration Panel or the Li- arbitrators chosen by the Librarian of Congress brarian of Congress acted in an arbitrary man- from a list of available arbitrators obtained ner. If the court modifies the decision of the Li- from the American Arbitration Association or brarian of Congress, the court shall have juris- such similar organization as the Librarian of diction to enter its own decision in accordance Congress shall select, and from potential arbi- with its final judgment. The court may further trators listed in the parties’ petition. The arbi- vacate the decision of the Librarian of Congress trators selected under this subsection shall con- and remand the case for arbitration proceedings stitute an Arbitration Panel. as provided in this section. Page 163 TITLE 17—COPYRIGHTS § 1101

(Added Pub. L. 102–563, § 2, Oct. 28, 1992, 106 Stat. record, or reproduces copies or phonorecords 4246; amended Pub. L. 103–198, § 6(b)(5), Dec. 17, of such a performance from an unauthorized 1993, 107 Stat. 2312.) fixation, (2) transmits or otherwise communicates to AMENDMENTS the public the sounds or sounds and images of 1993—Subsec. (b). Pub. L. 103–198, § 6(b)(5)(A), sub- a live musical performance, or stituted ‘‘Librarian of Congress’’ for ‘‘Copyright Roy- (3) distributes or offers to distribute, sells or alty Tribunal’’ before ‘‘requesting the commencement’’ offers to sell, rents or offers to rent, or traffics and for ‘‘Tribunal’’ wherever appearing. Subsec. (e). Pub. L. 103–198, § 6(b)(5)(B), substituted in any copy or phonorecord fixed as described ‘‘Librarian of Congress’’ for ‘‘Copyright Royalty Tribu- in paragraph (1), regardless of whether the fix- nal’’ in heading and text. ations occurred in the United States, Subsec. (f). Pub. L. 103–198, § 6(b)(5)(C), substituted shall be subject to the remedies provided in sec- ‘‘Librarian of Congress’’ for ‘‘Copyright Royalty Tribu- nal’’ in heading and before ‘‘shall adopt or reject’’ in tions 502 through 505, to the same extent as an text, substituted ‘‘Librarian of Congress’’ for ‘‘Tribu- infringer of copyright. nal’’ wherever appearing, and substituted ‘‘the Librar- (b) DEFINITION.—As used in this section, the ian’s’’ for ‘‘its’’. term ‘‘traffic in’’ means transport, transfer, or Subsec. (g). Pub. L. 103–198, § 6(b)(5)(D), substituted otherwise dispose of, to another, as consider- ‘‘Librarian of Congress’’ for ‘‘Copyright Royalty Tribu- ation for anything of value, or make or obtain nal’’ after ‘‘Any decision of the’’, ‘‘decision of the Li- control of with intent to transport, transfer, or brarian of Congress’’ for ‘‘Tribunal’s decision’’ in sec- dispose of. ond sentence, and ‘‘Librarian of Congress’’ for ‘‘Tribu- nal’’ wherever appearing in third through fifth sen- (c) APPLICABILITY.—This section shall apply to tences. any act or acts that occur on or after the date of the enactment of the Uruguay Round Agree- CHAPTER 11—SOUND RECORDINGS AND ments Act. MUSIC VIDEOS (d) STATE LAW NOT PREEMPTED.—Nothing in this section may be construed to annul or limit Sec. 1101. Unauthorized fixation and trafficking in any rights or remedies under the common law or sound recordings and music videos. statutes of any State. (Added Pub. L. 103–465, title V, § 512(a), Dec. 8, § 1101. Unauthorized fixation and trafficking in 1994, 108 Stat. 4974.) sound recordings and music videos

(a) UNAUTHORIZED ACTS.—Anyone who, with- REFERENCES IN TEXT out the consent of the performer or performers The date of the enactment of the Uruguay Round involved— Agreements Act, referred to in subsec. (c), is the date (1) fixes the sounds or sounds and images of of enactment of Pub. L. 103–465, which was approved a live musical performance in a copy or phono- Dec. 8, 1994.