EHF20881 JXP 116TH CONGRESS 2D SESSION S.L.C. S. ll To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, to amend the Communications Act of 1934 to modify the scope of protection from civil liability for ‘‘good Samaritan’’ blocking and screening of offensive material, and for other purposes. IN THE SENATE OF THE UNITED STATES Mr. GRAHAM llllllllll introduced the following bill; which was read twice and referred to the Committee on llllllllll A BILL To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, to amend the Communications Act of 1934 to modify the scope of protection from civil liability for ‘‘good Samaritan’’ blocking and screening of offensive material, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 4 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) SHORT TITLE.—This Act may be cited as the 5 ‘‘Online Content Policy Modernization Act’’. EHF20881 JXP S.L.C. 2 (b) TABLE 1 OF CONTENTS.—The table of contents for 2 this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—COPYRIGHT SMALL CLAIMS Sec. Sec. Sec. Sec. 101. 102. 103. 104. Copyright small claims. Implementation. Study. Severability. TITLE II—GOOD SAMARITAN BLOCKING Sec. 201. Protection from civil liability for ‘‘good Samaritan’’ blocking and screening of offensive material. 3 4 5 6 TITLE I—COPYRIGHT SMALL CLAIMS SEC. 101. COPYRIGHT SMALL CLAIMS. (a) IN GENERAL.—Title 17, United States Code, is 7 amended by adding at the end the following: 8 ‘‘CHAPTER 15—COPYRIGHT SMALL 9 CLAIMS ‘‘1501. ‘‘1502. ‘‘1503. ‘‘1504. ‘‘1505. ‘‘1506. ‘‘1507. ‘‘1508. ‘‘1509. ‘‘1510. ‘‘1511. Definitions. Copyright Claims Board. Authority and duties of the Copyright Claims Board. Nature of proceedings. Registration requirement. Conduct of proceedings. Effect of proceeding. Review and confirmation by district court. Relationship to other district court actions. Implementation by Copyright Office. Funding. 10 ‘‘§ 1501. Definitions 11 12 13 ‘‘In this chapter— ‘‘(1) the term ‘party’— ‘‘(A) means a party; and EHF20881 JXP S.L.C. 3 1 ‘‘(B) includes the attorney of a party, as 2 applicable; 3 ‘‘(2) the term ‘claimant’ means the real party 4 in interest that commences a proceeding before the 5 Copyright Claims Board under section 1506(e), pur- 6 suant to a permissible claim of infringement brought 7 under section 1504(c)(1), noninfringement brought 8 under section 1504(c)(2), or misrepresentation 9 brought under section 1504(c)(3); 10 ‘‘(3) the term ‘counterclaimant’ means a re- 11 spondent in a proceeding before the Copyright 12 Claims Board that— 13 ‘‘(A) asserts a permissible counterclaim 14 under section 1504(c)(4) against the claimant 15 in the proceeding; and 16 ‘‘(B) is the real party in interest with re- 17 spect to the counterclaim described in subpara- 18 graph (A); and 19 ‘‘(4) the term ‘respondent’ means any person 20 against whom a proceeding is brought before the 21 Copyright Claims Board under section 1506(e), pur- 22 suant to a permissible claim of infringement brought 23 under section 1504(c)(1), noninfringement brought 24 under section 1504(c)(2), or misrepresentation 25 brought under section 1504(c)(3). EHF20881 JXP S.L.C. 4 1 ‘‘§ 1502. Copyright Claims Board 2 ‘‘(a) IN GENERAL.—There is established in the Copy- 3 right Office the Copyright Claims Board, which shall serve 4 as an alternative forum in which parties may voluntarily 5 seek to resolve certain copyright claims regarding any cat6 egory of copyrighted work, as provided in this chapter. 7 8 ‘‘(b) OFFICERS AND STAFF.— ‘‘(1) COPYRIGHT CLAIMS OFFICERS.—The Reg- 9 ister of Copyrights shall recommend 3 full-time 10 Copyright Claims Officers to serve on the Copyright 11 Claims Board in accordance with paragraph (3)(A). 12 The Officers shall be appointed by the Librarian of 13 Congress to such positions after consultation with 14 the Register of Copyrights. 15 ‘‘(2) COPYRIGHT CLAIMS ATTORNEYS.—The 16 Register of Copyrights shall hire not fewer than 2 17 full-time Copyright Claims Attorneys to assist in the 18 administration of the Copyright Claims Board. 19 ‘‘(3) QUALIFICATIONS.— 20 ‘‘(A) COPYRIGHT 21 ‘‘(i) IN CLAIMS OFFICERS.— GENERAL.—Each Copyright 22 Claims Officer shall be an attorney who 23 has not fewer than 7 years of legal experi- 24 ence. 25 26 ‘‘(ii) EXPERIENCE.—Two of the Copyright Claims Officers shall have— EHF20881 JXP S.L.C. 5 1 ‘‘(I) substantial experience in the 2 evaluation, litigation, or adjudication 3 of copyright infringement claims; and 4 ‘‘(II) between those 2 Officers, 5 have represented or presided over a 6 diversity of copyright interests, includ- 7 ing those of both owners and users of 8 copyrighted works. 9 ‘‘(iii) ALTERNATIVE DISPUTE RESOLU- 10 TION.—The Copyright Claims Officer not 11 described in clause (ii) shall have substan- 12 tial familiarity with copyright law and ex- 13 perience in the field of alternative dispute 14 resolution, including the resolution of liti- 15 gation matters through that method of res- 16 olution. 17 ‘‘(B) COPYRIGHT CLAIMS ATTORNEYS.— 18 Each Copyright Claims Attorney shall be an at- 19 torney who has not fewer than 3 years of sub- 20 stantial experience in copyright law. 21 ‘‘(4) COMPENSATION.— 22 ‘‘(A) COPYRIGHT CLAIMS OFFICERS.— 23 ‘‘(i) DEFINITION.—In this subpara- 24 graph, the term ‘senior level employee of 25 the Federal Government’ means an em- EHF20881 JXP S.L.C. 6 1 ployee, other than an employee in the Sen- 2 ior Executive Service, the position of whom 3 is classified above GS–15 of the General 4 Schedule. 5 ‘‘(ii) PAY RANGE.—Each Copyright 6 Claims Officer shall be compensated at a 7 rate of pay that is not less than the min- 8 imum, and not more than the maximum, 9 rate of pay payable for senior level employ- 10 ees of the Federal Government, including 11 locality pay, as applicable. 12 ‘‘(B) COPYRIGHT CLAIMS ATTORNEYS.— 13 Each Copyright Claims Attorney shall be com- 14 pensated at a rate of pay that is not more than 15 the maximum rate of pay payable for level 10 16 of GS–15 of the General Schedule, including lo- 17 cality pay, as applicable. 18 ‘‘(5) TERMS.— 19 ‘‘(A) IN GENERAL.—Subject to subpara- 20 graph (B), a Copyright Claims Officer shall 21 serve for a renewable term of 6 years. 22 ‘‘(B) INITIAL TERMS.—The terms for the 23 first Copyright Claims Officers appointed under 24 this chapter shall be as follows: EHF20881 JXP S.L.C. 7 1 ‘‘(i) The first such Copyright Claims 2 Officer appointed shall be appointed for a 3 term of 4 years. 4 ‘‘(ii) The second Copyright Claims Of- 5 ficer appointed shall be appointed for a 6 term of 5 years. 7 ‘‘(iii) The third Copyright Claims Of- 8 ficer appointed shall be appointed for a 9 term of 6 years. 10 ‘‘(6) VACANCIES AND INCAPACITY.— 11 ‘‘(A) VACANCY.— 12 ‘‘(i) IN GENERAL.—If a vacancy oc- 13 curs in the position of a Copyright Claims 14 Officer, the Librarian of Congress shall, 15 upon the recommendation of, and in con- 16 sultation with, the Register of Copyrights, 17 act expeditiously to appoint a Copyright 18 Claims Officer for that position. 19 ‘‘(ii) VACANCY BEFORE EXPIRA- 20 TION.—An individual appointed to fill a 21 vacancy occurring before the expiration of 22 the term for which the predecessor of the 23 individual was appointed shall be appointed 24 to serve a 6-year term. EHF20881 JXP S.L.C. 8 1 ‘‘(B) INCAPACITY.—If a Copyright Claims 2 Officer is temporarily unable to perform the du- 3 ties of the Officer, the Librarian of Congress 4 shall, upon recommendation of, and in consulta- 5 tion with, the Register of Copyrights, act expe- 6 ditiously to appoint an interim Copyright 7 Claims Officer to perform such duties during 8 the period of such incapacity. 9 ‘‘(7) SANCTION OR REMOVAL.—Subject to sec- 10 tion 1503(b), the Librarian of Congress may sanc- 11 tion or remove a Copyright Claims Officer. 12 ‘‘(8) ADMINISTRATIVE SUPPORT.—The Register 13 of Copyrights shall provide the Copyright Claims Of- 14 ficers and Copyright Claims Attorneys with nec- 15 essary administrative support, including techno- 16 logical facilities, to carry out the duties of the Offi- 17 cers and Attorneys under this chapter. 18 ‘‘(9) LOCATION 19 BOARD.—The 20 Claims Officers and Copyright Claims Attorneys 21 shall be located at the Copyright Office. OF COPYRIGHT CLAIMS offices and facilities of the Copyright 22 ‘‘§ 1503. Authority and duties of the Copyright Claims 23 24 Board ‘‘(a) FUNCTIONS.— EHF20881 JXP S.L.C. 9 1 ‘‘(1) COPYRIGHT CLAIMS OFFICERS.—Subject 2 to the provisions of this chapter and applicable regu- 3 lations, the functions of the Copyright Claims Offi- 4 cers shall be as follows: 5 ‘‘(A) To render determinations on the civil 6 copyright claims, counterclaims, and defenses 7 that may be brought before the Officers under 8 this chapter. 9 ‘‘(B) To ensure that claims, counterclaims, 10 and defenses are properly asserted and other- 11 wise appropriate for resolution by the Copyright 12 Claims Board. 13 ‘‘(C) To manage the proceedings before the 14 Officers and render rulings pertaining to the 15 consideration of claims, counterclaims, and de- 16 fenses, including with respect to scheduling, dis- 17 covery, evidentiary, and other matters. 18 ‘‘(D) To request, from participants and 19 nonparticipants in a proceeding, the production 20 of information and documents relevant to the 21 resolution of a claim, counterclaim, or defense. 22 ‘‘(E) To conduct hearings and conferences. 23 ‘‘(F) To facilitate the settlement by the 24 25 parties of claims and counterclaims. ‘‘(G)(i) To award monetary relief; and EHF20881 JXP S.L.C. 10 1 ‘‘(ii) to include in the determinations of 2 the Officers a requirement that certain activi- 3 ties under section 1504(e)(2) cease or be miti- 4 gated, if the party to undertake the applicable 5 measure has so agreed. 6 ‘‘(H) To provide information to the public 7 concerning the procedures and requirements of 8 the Copyright Claims Board. 9 ‘‘(I) To maintain records of the pro- 10 ceedings before the Officers, certify official 11 records of such proceedings as needed, and, as 12 provided in section 1506(t), make the records 13 in such proceedings available to the public. 14 15 ‘‘(J) To carry out such other duties as are set forth in this chapter. 16 ‘‘(K) When not engaged in performing the 17 duties of the Officers set forth in this chapter, 18 to perform such other duties as may be as- 19 signed by the Register of Copyrights. 20 ‘‘(2) COPYRIGHT CLAIMS ATTORNEYS.—Subject 21 to the provisions of this chapter and applicable regu- 22 lations, the functions of the Copyright Claims Attor- 23 neys shall be as follows: EHF20881 JXP S.L.C. 11 1 ‘‘(A) To provide assistance to the Copy- 2 right Claims Officers in the administration of 3 the duties of those Officers under this chapter. 4 ‘‘(B) To provide assistance to members of 5 the public with respect to the procedures and 6 requirements of the Copyright Claims Board. 7 ‘‘(C) To provide information to potential 8 claimants contemplating bringing a permissible 9 action before the Copyright Claims Board about 10 obtaining a subpoena under section 512(h) for 11 the sole purpose of identifying a potential re- 12 spondent in such an action. 13 ‘‘(D) When not engaged in performing the 14 duties of the Attorneys set forth in this chapter, 15 to perform such other duties as may be as- 16 signed by the Register of Copyrights. 17 ‘‘(b) INDEPENDENCE IN DETERMINATIONS.— 18 ‘‘(1) IN GENERAL.—The Copyright Claims 19 Board shall render the determinations of the Board 20 in individual proceedings independently on the basis 21 of the records in the proceedings before it and in ac- 22 cordance with the provisions of this title, judicial 23 precedent, and applicable regulations of the Register 24 of Copyrights. EHF20881 JXP S.L.C. 12 1 2 ‘‘(2) CONSULTATION.—The Copyright Claims Officers and Copyright Claims Attorneys— ‘‘(A) may consult with the Register of 3 4 Copyrights on general issues of law; and 5 ‘‘(B) subject to section 1506(x), may not 6 consult with the Register of Copyrights with re- 7 spect to— 8 ‘‘(i) the facts of any particular matter 9 pending before the Officers and the Attorneys; or 10 ‘‘(ii) the application of law to the 11 facts described in clause (i). 12 13 ‘‘(3) PERFORMANCE APPRAISALS.—Notwith- 14 standing any other provision of law or any regula- 15 tion or policy of the Library of Congress or Register 16 of Copyrights, any performance appraisal of a Copy- 17 right Claims Officer or Copyright Claims Attorney 18 may not consider the substantive result of any indi- 19 vidual determination reached by the Copyright 20 Claims Board as a basis for appraisal except to the 21 extent that result may relate to any actual or alleged 22 violation of an ethical standard of conduct. 23 ‘‘(c) DIRECTION BY REGISTER.—Subject to sub- 24 section (b), the Copyright Claims Officers and Copyright 25 Claims Attorneys shall, in the administration of their du- EHF20881 JXP S.L.C. 13 1 ties, be under the general direction of the Register of 2 Copyrights. 3 ‘‘(d) INCONSISTENT DUTIES BARRED.—A Copyright 4 Claims Officer or Copyright Claims Attorney may not un5 dertake any duty that conflicts with the duties of the Offi6 cer or Attorney in connection with the Copyright Claims 7 Board. 8 ‘‘(e) RECUSAL.—A Copyright Claims Officer or Copy- 9 right Claims Attorney shall recuse himself or herself from 10 participation in any proceeding with respect to which the 11 Copyright Claims Officer or Copyright Claims Attorney, 12 as the case may be, has reason to believe that he or she 13 has a conflict of interest. 14 ‘‘(f) EX PARTE COMMUNICATIONS.—Except as may 15 otherwise be permitted by applicable law, any party to a 16 proceeding before the Copyright Claims Board shall re17 frain from ex parte communications with the Copyright 18 Claims Officers and the Register of Copyrights concerning 19 the substance of any active or pending proceeding before 20 the Copyright Claims Board. 21 ‘‘(g) JUDICIAL REVIEW.—Actions of the Copyright 22 Claims Officers and Register of Copyrights under this 23 chapter in connection with the rendering of any deter24 mination are subject to judicial review as provided under 25 section 1508(c) and not under chapter 7 of title 5. EHF20881 JXP S.L.C. 14 1 ‘‘§ 1504. Nature of proceedings 2 ‘‘(a) VOLUNTARY PARTICIPATION.—Participation in 3 a Copyright Claims Board proceeding shall be on a vol4 untary basis in accordance with this chapter and the right 5 of any party to instead pursue a claim, counterclaim, or 6 defense in a district court of the United States or any 7 other court, and to seek a jury trial, shall be preserved. 8 ‘‘(b) STATUTE OF LIMITATIONS.— ‘‘(1) IN 9 GENERAL.—A proceeding may not be 10 maintained before the Copyright Claims Board un- 11 less the proceeding is commenced, in accordance 12 with section 1506(e), before the Copyright Claims 13 Board within 3 years after the claim accrued. 14 ‘‘(2) TOLLING.—Subject to section 1507(a), a 15 proceeding commenced before the Copyright Claims 16 Board shall toll the time permitted under section 17 507(b) for the commencement of an action on the 18 same claim in a district court of the United States 19 during the period in which the proceeding is pend- 20 ing. 21 ‘‘(c) PERMISSIBLE CLAIMS, COUNTERCLAIMS, AND 22 DEFENSES.—The Copyright Claims Board may render de23 terminations with respect to the following claims, counter24 claims, and defenses, subject to such further limitations 25 and requirements, including with respect to particular EHF20881 JXP S.L.C. 15 1 classes of works, as may be set forth in regulations estab2 lished by the Register of Copyrights: 3 ‘‘(1) A claim for infringement of an exclusive 4 right in a copyrighted work provided under section 5 106 by the legal or beneficial owner of the exclusive 6 right at the time of the infringement for which the 7 claimant seeks damages, if any, within the limita- 8 tions set forth in subsection (e)(1). 9 ‘‘(2) A claim for a declaration of noninfringe- 10 ment of an exclusive right in a copyrighted work 11 provided under section 106, consistent with section 12 2201 of title 28. 13 ‘‘(3) A claim under section 512(f) for misrepre- 14 sentation in connection with a notification of claimed 15 infringement or a counter notification seeking to re- 16 place removed or disabled material, except that any 17 remedies relating to such a claim in a proceeding be- 18 fore the Copyright Claims Board shall be limited to 19 those available under this chapter. 20 21 ‘‘(4) A counterclaim that is asserted solely against the claimant in a proceeding— 22 ‘‘(A) pursuant to which the counterclaim- 23 ant seeks damages, if any, within the limita- 24 tions set forth in subsection (e)(1); and 25 ‘‘(B) that— EHF20881 JXP S.L.C. 16 1 ‘‘(i) arises under section 106 or sec- 2 tion 512(f) and out of the same trans- 3 action or occurrence that is the subject of 4 a claim of infringement brought under 5 paragraph (1), a claim of noninfringement 6 brought under paragraph (2), or a claim of 7 misrepresentation brought under para- 8 graph (3); or 9 ‘‘(ii) arises under an agreement per- 10 taining to the same transaction or occur- 11 rence that is the subject of a claim of in- 12 fringement brought under paragraph (1), 13 if the agreement could affect the relief 14 awarded to the claimant. 15 ‘‘(5) A legal or equitable defense under this title 16 or otherwise available under law, in response to a 17 claim or counterclaim asserted under this subsection. 18 ‘‘(6) A single claim or multiple claims permitted 19 under paragraph (1), (2), or (3) by one or more 20 claimants against one or more respondents, but only 21 if all claims asserted in any one proceeding arise out 22 of the same allegedly infringing activity or contin- 23 uous course of infringing activities and do not, in 24 the aggregate, result in the recovery of such claim EHF20881 JXP S.L.C. 17 1 or claims for damages that exceed the limitations 2 under subsection (e)(1). 3 ‘‘(d) EXCLUDED CLAIMS.—The following claims and 4 counterclaims are not subject to determination by the 5 Copyright Claims Board: 6 ‘‘(1) A claim or counterclaim that is not a per- 7 missible claim or counterclaim under subsection (c). 8 ‘‘(2) A claim or counterclaim that has been fi- 9 nally adjudicated by a court of competent jurisdic- 10 tion or that is pending before a court of competent 11 jurisdiction, unless that court has granted a stay to 12 permit that claim or counterclaim to proceed before 13 the Copyright Claims Board. 14 15 ‘‘(3) A claim or counterclaim by or against a Federal or State governmental entity. 16 ‘‘(4) A claim or counterclaim asserted against a 17 person or entity residing outside of the United 18 States, except in a case in which the person or entity 19 initiated the proceeding before the Copyright Claims 20 Board and is subject to counterclaims under this 21 chapter. 22 ‘‘(e) PERMISSIBLE REMEDIES.— 23 24 25 ‘‘(1) MONETARY RECOVERY.— ‘‘(A) ACTUAL DAMAGES, PROFITS, AND STATUTORY DAMAGES FOR INFRINGEMENT.— EHF20881 JXP S.L.C. 18 1 With respect to a claim or counterclaim for in- 2 fringement of copyright, and subject to the limi- 3 tation on total monetary recovery under sub- 4 paragraph (D), the Copyright Claims Board 5 may award either of the following: 6 ‘‘(i) Actual damages and profits deter- 7 mined in accordance with section 504(b), 8 with that award taking into consideration, 9 in appropriate cases, whether the infring- 10 ing party has agreed to cease or mitigate 11 the infringing activity under paragraph 12 (2). 13 ‘‘(ii) Statutory damages, which shall 14 be determined in accordance with section 15 504(c), subject to the following conditions: 16 ‘‘(I) With respect to works timely 17 registered under section 412, so that 18 the works are eligible for an award of 19 statutory damages in accordance with 20 that section, the statutory damages 21 may not exceed $15,000 for each 22 work infringed. 23 ‘‘(II) With respect to works not 24 timely registered under section 412, 25 but eligible for an award of statutory EHF20881 JXP S.L.C. 19 1 damages under this section, statutory 2 damages may not exceed $7,500 per 3 work infringed, or a total of $15,000 4 in any 1 proceeding. 5 ‘‘(III) The Copyright Claims 6 Board may not make any finding 7 that, or consider whether, the in- 8 fringement was committed willfully in 9 making an award of statutory dam- 10 11 ages. ‘‘(IV) The Copyright Claims 12 Board may consider, as an additional 13 factor in awarding statutory damages, 14 whether the infringer has agreed to 15 cease or mitigate the infringing activ- 16 ity under paragraph (2). 17 ‘‘(B) ELECTION OF DAMAGES.—With re- 18 spect to a claim or counterclaim of infringe- 19 ment, at any time before final determination is 20 rendered, the claimant or counterclaimant shall, 21 in accordance with the schedule established by 22 the Copyright Claims Board under section 23 1506(k), elect— EHF20881 JXP S.L.C. 20 1 ‘‘(i) to pursue actual damages and 2 profits or statutory damages under sub- 3 paragraph (A); or ‘‘(ii) not to pursue damages. 4 ‘‘(C) DAMAGES 5 FOR OTHER CLAIMS.— 6 Damages for claims and counterclaims other 7 than 8 brought under section 512(f), shall be subject 9 to the limitation under subparagraph (D). infringement claims, ‘‘(D) LIMITATION 10 such as those ON TOTAL MONETARY 11 RECOVERY.—Notwithstanding any other provi- 12 sion of law, a party that pursues any one or 13 more claims or counterclaims in any single pro- 14 ceeding before the Copyright Claims Board may 15 not seek or recover in that proceeding a total 16 monetary recovery that exceeds the sum of 17 $30,000, exclusive of any attorneys’ fees and 18 costs that may be awarded under section 19 1506(y)(2). 20 ‘‘(2) AGREEMENT TO CEASE CERTAIN ACTIV- 21 ITY.—In 22 Board, the Board shall include a requirement to 23 cease conduct if, in the proceeding relating to the 24 determination— 25 a determination of the Copyright Claims ‘‘(A) a party agrees— EHF20881 JXP S.L.C. 21 1 ‘‘(i) to cease activity that is found to 2 be infringing, including removing or dis- 3 abling access to, or destroying, infringing 4 materials; or 5 ‘‘(ii) to cease sending a takedown no- 6 tice or counter notice under section 512 to 7 the other party regarding the conduct at 8 issue before the Board if that notice or 9 counter notice was found to be a knowing 10 material misrepresentation under section 11 512(f); and 12 ‘‘(B) the agreement described in subpara- 13 graph (A) is reflected in the record for the pro- 14 ceeding. 15 ‘‘(3) ATTORNEYS’ FEES AND COSTS.—Notwith- 16 standing any other provision of law, except in the 17 case of bad faith conduct as provided in section 18 1506(y)(2), the parties to proceedings before the 19 Copyright Claims Board shall bear their own attor- 20 neys’ fees and costs. 21 ‘‘(f) JOINT AND SEVERAL LIABILITY.—Parties to a 22 proceeding before the Copyright Claims Board may be 23 found jointly and severally liable if all such parties and 24 relevant claims or counterclaims arise from the same ac25 tivity or activities. EHF20881 JXP S.L.C. 22 1 ‘‘(g) PERMISSIBLE NUMBER OF CASES.—The Reg- 2 ister of Copyrights may establish regulations relating to 3 the permitted number of proceedings each year by the 4 same claimant under this chapter, in the interests of jus5 tice and the administration of the Copyright Claims 6 Board. 7 ‘‘§ 1505. Registration requirement 8 ‘‘(a) APPLICATION OR CERTIFICATE.—A claim or 9 counterclaim alleging infringement of an exclusive right 10 in a copyrighted work may not be asserted before the 11 Copyright Claims Board unless— 12 ‘‘(1) the legal or beneficial owner of the copy- 13 right has first delivered a completed application, a 14 deposit, and the required fee for registration of the 15 copyright to the Copyright Office; and 16 ‘‘(2) a registration certificate has either been 17 issued or has not been refused. 18 ‘‘(b) CERTIFICATE OF REGISTRATION.—Notwith- 19 standing any other provision of law, a claimant or counter20 claimant in a proceeding before the Copyright Claims 21 Board shall be eligible to recover actual damages and prof22 its or statutory damages under this chapter for infringe23 ment of a work if the requirements of subsection (a) have 24 been met, except that— EHF20881 JXP S.L.C. 23 1 2 ‘‘(1) the Copyright Claims Board may not render a determination in the proceeding until— 3 ‘‘(A) a registration certificate with respect 4 to the work has been issued by the Copyright 5 Office, submitted to the Copyright Claims 6 Board, and made available to the other parties 7 to the proceeding; and 8 ‘‘(B) the other parties to the proceeding 9 have been provided an opportunity to address 10 the registration certificate; 11 ‘‘(2) if the proceeding may not proceed further 12 because a registration certificate for the work is 13 pending, the proceeding shall be held in abeyance 14 pending submission of the certificate to the Copy- 15 right Claims Board, except that, if the proceeding is 16 held in abeyance for more than 1 year, the Copy- 17 right Claims Board may, upon providing written no- 18 tice to the parties to the proceeding, and 30 days to 19 the parties to respond to the notice, dismiss the pro- 20 ceeding without prejudice; and 21 ‘‘(3) if the Copyright Claims Board receives no- 22 tice that registration with respect to the work has 23 been refused, the proceeding shall be dismissed with- 24 out prejudice. EHF20881 JXP S.L.C. 24 1 ‘‘(c) PRESUMPTION.—In a case in which a registra- 2 tion certificate shows that registration with respect to a 3 work was issued not later than 5 years after the date of 4 the first publication of the work, the presumption under 5 section 410(c) shall apply in a proceeding before the Copy6 right Claims Board, in addition to relevant principles of 7 law under this title. 8 ‘‘(d) REGULATIONS.—In order to ensure that actions 9 before the Copyright Claims Board proceed in a timely 10 manner, the Register of Copyrights shall establish regula11 tions allowing the Copyright Office to make a decision, 12 on an expedited basis, to issue or deny copyright registra13 tion for an unregistered work that is at issue before the 14 Board. 15 ‘‘§ 1506. Conduct of proceedings 16 17 ‘‘(a) IN GENERAL.— ‘‘(1) APPLICABLE LAW.—Proceedings of the 18 Copyright Claims Board shall be conducted in ac- 19 cordance with this chapter and regulations estab- 20 lished by the Register of Copyrights under this chap- 21 ter, in addition to relevant principles of law under 22 this title. 23 ‘‘(2) CONFLICTING PRECEDENT.—If it appears 24 that there may be conflicting judicial precedent on 25 an issue of substantive copyright law that cannot be EHF20881 JXP S.L.C. 25 1 reconciled, the Copyright Claims Board shall follow 2 the law of the Federal jurisdiction in which the ac- 3 tion could have been brought if filed in a district 4 court of the United States, or, if the action could 5 have been brought in more than 1 such jurisdiction, 6 the jurisdiction that the Copyright Claims Board de- 7 termines has the most significant ties to the parties 8 and conduct at issue. 9 ‘‘(b) RECORD.—The Copyright Claims Board shall 10 maintain records documenting the proceedings before the 11 Board. 12 ‘‘(c) CENTRALIZED PROCESS.—Proceedings before 13 the Copyright Claims Board shall— 14 ‘‘(1) be conducted at the offices of the Copy- 15 right Claims Board without the requirement of in- 16 person appearances by parties or others; and 17 ‘‘(2) take place by means of written submis- 18 sions, hearings, and conferences carried out through 19 internet-based applications and other telecommuni- 20 cations facilities, except that, in cases in which phys- 21 ical or other nontestimonial evidence material to a 22 proceeding cannot be furnished to the Copyright 23 Claims Board through available telecommunications 24 facilities, the Copyright Claims Board may make al- 25 ternative arrangements for the submission of such EHF20881 JXP S.L.C. 26 1 evidence that do not prejudice any other party to the 2 proceeding. 3 ‘‘(d) REPRESENTATION.—A party to a proceeding be- 4 fore the Copyright Claims Board may be, but is not re5 quired to be, represented by— 6 ‘‘(1) an attorney; or 7 ‘‘(2) a law student who is qualified under appli- 8 cable law governing representation by law students 9 of parties in legal proceedings and who provides 10 such representation on a pro bono basis. 11 ‘‘(e) COMMENCEMENT OF PROCEEDING.—In order to 12 commence a proceeding under this chapter, a claimant 13 shall, subject to such additional requirements as may be 14 prescribed in regulations established by the Register of 15 Copyrights, file a claim with the Copyright Claims Board, 16 that— 17 18 ‘‘(1) includes a statement of material facts in support of the claim; 19 ‘‘(2) is certified under subsection (y)(1); and 20 ‘‘(3) is accompanied by a filing fee in such 21 amount as may be prescribed in regulations estab- 22 lished by the Register of Copyrights. 23 ‘‘(f) REVIEW OF CLAIMS AND COUNTERCLAIMS.— 24 ‘‘(1) CLAIMS.—Upon the filing of a claim under 25 subsection (e), the claim shall be reviewed by a EHF20881 JXP S.L.C. 27 1 Copyright Claims Attorney to ensure that the claim 2 complies with this chapter and applicable regula- 3 tions, subject to the following: 4 ‘‘(A) If the claim is found to comply, the 5 claimant shall be notified regarding that com- 6 pliance and instructed to proceed with service of 7 the claim under subsection (g). 8 ‘‘(B) If the claim is found not to comply, 9 the claimant shall be notified that the claim is 10 deficient and be permitted to file an amended 11 claim not later than 30 days after the date on 12 which the claimant receives the notice, without 13 the requirement of an additional filing fee. If 14 the claimant files a compliant claim within that 15 30-day period, the claimant shall be so notified 16 and be instructed to proceed with service of the 17 claim. If the claim is refiled within that 30-day 18 period and still fails to comply, the claimant 19 shall again be notified that the claim is defi- 20 cient and shall be provided a second oppor- 21 tunity to amend the claim within 30 days after 22 the date of that second notice, without the re- 23 quirement of an additional filing fee. If the 24 claim is refiled again within that second 30-day 25 period and is compliant, the claimant shall be EHF20881 JXP S.L.C. 28 1 so notified and shall be instructed to proceed 2 with service of the claim, but if the claim still 3 fails to comply, upon confirmation of such non- 4 compliance by a Copyright Claims Officer, the 5 proceeding shall be dismissed without prejudice. 6 The Copyright Claims Board shall also dismiss 7 without prejudice any proceeding in which a 8 compliant claim is not filed within the applica- 9 ble 30-day period. 10 ‘‘(C)(i) Subject to clause (ii), for purposes 11 of this paragraph, a claim against an online 12 service provider for infringement by reason of 13 the storage of or referral or linking to infring- 14 ing material that may be subject to the limita- 15 tions on liability set forth in subsection (b), (c), 16 or (d) of section 512 shall be considered non- 17 compliant unless the claimant affirms in the 18 statement required under subsection (e)(1) of 19 this section that the claimant has previously no- 20 tified the service provider of the claimed in- 21 fringement 22 (b)(2)(E), (c)(3), or (d)(3) of section 512, as 23 applicable, and the service provider failed to re- 24 move or disable access to the material expedi- 25 tiously upon the provision of such notice. in accordance with subsection EHF20881 JXP S.L.C. 29 1 ‘‘(ii) If a claim is found to be noncompliant 2 under clause (i), the Copyright Claims Board 3 shall provide the claimant with information con- 4 cerning the service of such a notice under the 5 applicable provision of section 512. 6 ‘‘(2) COUNTERCLAIMS.—Upon the filing and 7 service of a counterclaim, the counterclaim shall be 8 reviewed by a Copyright Claims Attorney to ensure 9 that the counterclaim complies with the provisions of 10 this chapter and applicable regulations. If the coun- 11 terclaim is found not to comply, the counterclaimant 12 and the other parties to the proceeding shall be noti- 13 fied that the counterclaim is deficient, and the 14 counterclaimant shall be permitted to file and serve 15 an amended counterclaim within 30 days after the 16 date of such notice. If the counterclaimant files and 17 serves a compliant counterclaim within that 30-day 18 period, the counterclaimant and such other parties 19 shall be so notified. If the counterclaim is refiled and 20 served within that 30-day period but still fails to 21 comply, the counterclaimant and such other parties 22 shall again be notified that the counterclaim is defi- 23 cient, and the counterclaimant shall be provided a 24 second opportunity to amend the counterclaim with- 25 in 30 days after the date of the second notice. If the EHF20881 JXP S.L.C. 30 1 counterclaim is refiled and served again within that 2 second 30-day period and is compliant, the counter- 3 claimant and such other parties shall be so notified, 4 but if the counterclaim still fails to comply, upon 5 confirmation of such noncompliance by a Copyright 6 Claims Officer, the counterclaim, but not the pro- 7 ceeding, shall be dismissed without prejudice. 8 ‘‘(3) DISMISSAL OF UNSUITABILITY.—The 9 Copyright Claims Board shall dismiss a claim or 10 counterclaim without prejudice if, upon reviewing 11 the claim or counterclaim, or at any other time in 12 the proceeding, the Copyright Claims Board con- 13 cludes that the claim or counterclaim is unsuitable 14 for determination by the Copyright Claims Board, 15 including on account of any of the following: 16 ‘‘(A) The failure to join a necessary party. 17 ‘‘(B) The lack of an essential witness, evi- 18 dence, or expert testimony. 19 ‘‘(C) The determination of a relevant issue 20 of law or fact that could exceed either the num- 21 ber of proceedings the Copyright Claims Board 22 could reasonably administer or the subject mat- 23 ter competence of the Copyright Claims Board. 24 ‘‘(g) SERVICE OF NOTICE AND CLAIMS.—In order to 25 proceed with a claim against a respondent, a claimant EHF20881 JXP S.L.C. 31 1 shall, within 90 days after receiving notification under 2 subsection (f) to proceed with service, file with the Copy3 right Claims Board proof of service on the respondent. In 4 order to effectuate service on a respondent, the claimant 5 shall cause notice of the proceeding and a copy of the 6 claim to be served on the respondent, either by personal 7 service or pursuant to a waiver of personal service, as pre8 scribed in regulations established by the Register of Copy9 rights. Such regulations shall include the following re10 quirements: 11 ‘‘(1) The notice of the proceeding shall adhere 12 to a prescribed form and shall set forth the nature 13 of the Copyright Claims Board and proceeding, the 14 right of the respondent to opt out, and the con- 15 sequences of opting out and not opting out, includ- 16 ing a prominent statement that, by not opting out 17 within 60 days after receiving the notice, the re- 18 spondent— 19 ‘‘(A) loses the opportunity to have the dis- 20 pute decided by a court created under article 21 III of the Constitution of the United States; 22 and 23 24 ‘‘(B) waives the right to a jury trial regarding the dispute. EHF20881 JXP S.L.C. 32 1 ‘‘(2) The copy of the claim served on the re- 2 spondent shall be the same as the claim that was 3 filed with the Copyright Claims Board. 4 ‘‘(3) Personal service of a notice and claim may 5 be effected by an individual who is not a party to 6 the proceeding and is older than 18 years of age. 7 8 ‘‘(4) An individual, other than a minor or incompetent individual, may be served by— 9 ‘‘(A) complying with State law for serving 10 a summons in an action brought in courts of 11 general jurisdiction in the State where service is 12 made; 13 14 ‘‘(B) delivering a copy of the notice and claim to the individual personally; 15 ‘‘(C) leaving a copy of the notice and claim 16 at the individual’s dwelling or usual place of 17 abode with someone of suitable age and discre- 18 tion who resides there; or 19 ‘‘(D) delivering a copy of the notice and 20 claim to an agent designated by the respondent 21 to receive service of process or, if not so des- 22 ignated, an agent authorized by appointment or 23 by law to receive service of process. 24 ‘‘(5)(A) A corporation, partnership, or unincor- 25 porated association that is subject to suit in courts EHF20881 JXP S.L.C. 33 1 of general jurisdiction under a common name shall 2 be served by delivering a copy of the notice and 3 claim to its service agent. If such service agent has 4 not been designated, service shall be accomplished— 5 ‘‘(i) by complying with State law for serv- 6 ing a summons in an action brought in courts 7 of general jurisdiction in the State where serv- 8 ice is made; or 9 ‘‘(ii) by delivering a copy of the notice and 10 claim to an officer, a managing or general 11 agent, or any other agent authorized by ap- 12 pointment or by law to receive service of proc- 13 ess in an action brought in courts of general ju- 14 risdiction in the State where service is made 15 and, if the agent is one authorized by statute 16 and the statute so requires, by also mailing a 17 copy of the notice and claim to the respondent. 18 ‘‘(B) A corporation, partnership or unincor- 19 porated association that is subject to suit in courts 20 of general jurisdiction under a common name may 21 elect to designate a service agent to receive notice of 22 a claim against it before the Copyright Claims 23 Board by complying with requirements that the Reg- 24 ister of Copyrights shall establish by regulation. The 25 Register of Copyrights shall maintain a current di- EHF20881 JXP S.L.C. 34 1 rectory of service agents that is available to the pub- 2 lic for inspection, including through the internet, 3 and may require such corporations, partnerships, 4 and unincorporated associations designating such 5 service agents to pay a fee to cover the costs of 6 maintaining the directory. 7 ‘‘(6) In order to request a waiver of personal 8 service, the claimant may notify a respondent, by 9 first class mail or by other reasonable means, that 10 a proceeding has been commenced, such notice to be 11 made in accordance with regulations established by 12 the Register of Copyrights, subject to the following: 13 ‘‘(A) Any such request shall be in writing, 14 shall be addressed to the respondent, and shall 15 be accompanied by a prescribed notice of the 16 proceeding, a copy of the claim as filed with the 17 Copyright Claims Board, a prescribed form for 18 waiver of personal service, and a prepaid or 19 other means of returning the form without cost. 20 ‘‘(B) The request shall state the date on 21 which the request is sent, and shall provide the 22 respondent a period of 30 days, beginning on 23 the date on which the request is sent, to return 24 the waiver form signed by the respondent. The 25 signed waiver form shall, for purposes of this EHF20881 JXP S.L.C. 35 1 subsection, constitute acceptance and proof of 2 service as of the date on which the waiver is 3 signed. 4 ‘‘(7)(A) A respondent’s waiver of personal serv- 5 ice shall not constitute a waiver of the respondent’s 6 right to opt out of the proceeding. 7 ‘‘(B) A respondent who timely waives personal 8 service under paragraph (6) and does not opt out of 9 the proceeding shall be permitted a period of 30 10 days, in addition to the period otherwise permitted 11 under the applicable procedures of the Copyright 12 Claims Board, to submit a substantive response to 13 the claim, including any defenses and counterclaims. 14 ‘‘(8) A minor or an incompetent individual may 15 only be served by complying with State law for serv- 16 ing a summons or like process on such an individual 17 in an action brought in the courts of general juris- 18 diction of the State where service is made. 19 ‘‘(9) Service of a claim and waiver of personal 20 service may only be effected within the United 21 States. 22 ‘‘(h) NOTIFICATION BY COPYRIGHT CLAIMS 23 BOARD.—The Register of Copyrights shall establish regu24 lations providing for a written notification to be sent by, 25 or on behalf of, the Copyright Claims Board to notify the EHF20881 JXP S.L.C. 36 1 respondent of a pending proceeding against the respond2 ent, as set forth in those regulations, which shall— 3 ‘‘(1) include information concerning the re- 4 spondent’s right to opt out of the proceeding, the 5 consequences of opting out and not opting out, and 6 a prominent statement that, by not opting out with- 7 in 60 days after the date of service under subsection 8 (g), the respondent loses the opportunity to have the 9 dispute decided by a court created under article III 10 of the Constitution of the United States and waives 11 the right to a jury trial regarding the dispute; and 12 ‘‘(2) be in addition to, and separate and apart 13 from, the notice requirements under subsection (g). 14 ‘‘(i) OPT-OUT PROCEDURE.—Upon being properly 15 served with a notice and claim, a respondent who chooses 16 to opt out of the proceeding shall have a period of 60 days, 17 beginning on the date of service, in which to provide writ18 ten notice of such choice to the Copyright Claims Board, 19 in accordance with regulations established by the Register 20 of Copyrights. If proof of service has been filed by the 21 claimant and the respondent does not submit an opt-out 22 notice to the Copyright Claims Board within that 60-day 23 period, the proceeding shall be deemed an active pro24 ceeding and the respondent shall be bound by the deter25 mination in the proceeding to the extent provided under EHF20881 JXP S.L.C. 37 1 section 1507(a). If the respondent opts out of the pro2 ceeding during that 60-day period, the proceeding shall 3 be dismissed without prejudice, except that, in exceptional 4 circumstances and upon written notice to the claimant, the 5 Copyright Claims Board may extend that 60-day period 6 in the interests of justice. 7 ‘‘(j) SERVICE OF OTHER DOCUMENTS.—Documents 8 submitted or relied upon in a proceeding, other than the 9 notice and claim, shall be served in accordance with regu10 lations established by the Register of Copyrights. 11 ‘‘(k) SCHEDULING.—Upon confirmation that a pro- 12 ceeding has become an active proceeding, the Copyright 13 Claims Board shall issue a schedule for the future conduct 14 of the proceeding. A schedule issued by the Copyright 15 Claims Board may be amended by the Copyright Claims 16 Board in the interests of justice. 17 ‘‘(l) CONFERENCES.—One or more Copyright Claims 18 Officers may hold a conference to address case manage19 ment or discovery issues in a proceeding, which shall be 20 noted upon the record of the proceeding and may be re21 corded or transcribed. 22 ‘‘(m) PARTY SUBMISSIONS.—A proceeding of the 23 Copyright Claims Board may not include any formal mo24 tion practice, except that, subject to applicable regulations 25 and procedures of the Copyright Claims Board— EHF20881 JXP S.L.C. 38 1 ‘‘(1) the parties to the proceeding may make re- 2 quests to the Copyright Claims Board to address 3 case management and discovery matters, and submit 4 responses thereto; and 5 ‘‘(2) the Copyright Claims Board may request 6 or permit parties to make submissions addressing 7 relevant questions of fact or law, or other matters, 8 including matters raised sua sponte by the Copy- 9 right Claims Officers, and offer responses thereto. 10 ‘‘(n) DISCOVERY.—Discovery in a proceeding shall be 11 limited to the production of relevant information and doc12 uments, written interrogatories, and written requests for 13 admission, as provided in regulations established by the 14 Register of Copyrights, except that— 15 ‘‘(1) upon the request of a party, and for good 16 cause shown, the Copyright Claims Board may ap- 17 prove additional relevant discovery, on a limited 18 basis, in particular matters, and may request spe- 19 cific information and documents from participants in 20 the proceeding and voluntary submissions from non- 21 participants, consistent with the interests of justice; 22 ‘‘(2) upon the request of a party, and for good 23 cause shown, the Copyright Claims Board may issue 24 a protective order to limit the disclosure of docu- EHF20881 JXP S.L.C. 39 1 ments or testimony that contain confidential infor- 2 mation; and 3 ‘‘(3) after providing notice and an opportunity 4 to respond, and upon good cause shown, the Copy- 5 right Claims Board may apply an adverse inference 6 with respect to disputed facts against a party who 7 has failed to timely provide discovery materials in 8 response to a proper request for materials that could 9 be relevant to such facts. 10 ‘‘(o) EVIDENCE.—The Copyright Claims Board may 11 consider the following types of evidence in a proceeding, 12 and such evidence may be admitted without application 13 of formal rules of evidence: 14 ‘‘(1) Documentary and other nontestimonial 15 evidence that is relevant to the claims, counter- 16 claims, or defenses in the proceeding. 17 ‘‘(2) Testimonial evidence, submitted under 18 penalty of perjury in written form or in accordance 19 with subsection (p), limited to statements of the par- 20 ties and nonexpert witnesses, that is relevant to the 21 claims, counterclaims, and defenses in a proceeding, 22 except that, in exceptional cases, expert witness tes- 23 timony or other types of testimony may be permitted 24 by the Copyright Claims Board for good cause 25 shown. EHF20881 JXP S.L.C. 40 1 ‘‘(p) HEARINGS.—The Copyright Claims Board may 2 conduct a hearing to receive oral presentations on issues 3 of fact or law from parties and witnesses to a proceeding, 4 including oral testimony, subject to the following: 5 6 ‘‘(1) Any such hearing shall be attended by not fewer than two of the Copyright Claims Officers. 7 ‘‘(2) The hearing shall be noted upon the record 8 of the proceeding and, subject to paragraph (3), may 9 be recorded or transcribed as deemed necessary by 10 the Copyright Claims Board. 11 ‘‘(3) A recording or transcript of the hearing 12 shall be made available to any Copyright Claims Of- 13 ficer who is not in attendance. 14 ‘‘(q) VOLUNTARY DISMISSAL.— 15 ‘‘(1) BY CLAIMANT.—Upon the written request 16 of a claimant that is received before a respondent 17 files a response to the claim in a proceeding, the 18 Copyright Claims Board shall dismiss the pro- 19 ceeding, or a claim or respondent, as requested, 20 without prejudice. 21 ‘‘(2) BY COUNTERCLAIMANT.—Upon written re- 22 quest of a counterclaimant that is received before a 23 claimant files a response to the counterclaim, the 24 Copyright Claims Board shall dismiss the counter- 25 claim, such dismissal to be without prejudice. EHF20881 JXP S.L.C. 41 1 ‘‘(3) CLASS ACTIONS.—Any party in an active 2 proceeding before the Copyright Claims Board who 3 receives notice of a pending or putative class action, 4 arising out of the same transaction or occurrence, in 5 which that party is a class member may request in 6 writing dismissal of the proceeding before the Board. 7 Upon notice to all claimants and counterclaimants, 8 the Copyright Claims Board shall dismiss the pro- 9 ceeding without prejudice. 10 11 12 ‘‘(r) SETTLEMENT.— ‘‘(1) IN GENERAL.—At any time in an active proceeding, some or all of the parties may— 13 ‘‘(A) jointly request a conference with a 14 Copyright Claims Officer for the purpose of fa- 15 cilitating settlement discussions; or 16 ‘‘(B) submit to the Copyright Claims 17 Board an agreement providing for settlement 18 and dismissal of some or all of the claims and 19 counterclaims in the proceeding. 20 ‘‘(2) ADDITIONAL REQUEST.—A submission 21 under paragraph (1)(B) may include a request that 22 the Copyright Claims Board adopt some or all of the 23 terms of the parties’ settlement in a final determina- 24 tion in the proceeding. EHF20881 JXP S.L.C. 42 1 ‘‘(s) FACTUAL FINDINGS.—Subject to subsection 2 (n)(3), the Copyright Claims Board shall make factual 3 findings based upon a preponderance of the evidence. 4 5 ‘‘(t) DETERMINATIONS.— ‘‘(1) NATURE AND CONTENTS.—A determina- 6 tion rendered by the Copyright Claims Board in a 7 proceeding shall— 8 9 ‘‘(A) be reached by a majority of the Copyright Claims Board; 10 ‘‘(B) be in writing, and include an expla- 11 nation of the factual and legal basis of the de- 12 termination; 13 ‘‘(C) set forth any terms by which a re- 14 spondent or counterclaim respondent has 15 agreed to cease infringing activity under section 16 1504(e)(2); 17 ‘‘(D) to the extent requested under sub- 18 section (r)(2), set forth the terms of any settle- 19 ment agreed to under subsection (r)(1); and 20 ‘‘(E) include a clear statement of all dam- 21 ages and other relief awarded, including under 22 subparagraphs (C) and (D). 23 ‘‘(2) DISSENT.—A Copyright Claims Officer 24 who dissents from a decision contained in a deter- EHF20881 JXP S.L.C. 43 1 mination under paragraph (1) may append a state- 2 ment setting forth the grounds for that dissent. 3 ‘‘(3) PUBLICATION.—Each final determination 4 of the Copyright Claims Board shall be made avail- 5 able on a publicly accessible website. The Register 6 shall establish regulations with respect to the publi- 7 cation of other records and information relating to 8 such determinations, including the redaction of 9 records to protect confidential information that is 10 the subject of a protective order under subsection 11 (n)(2). 12 ‘‘(4) FREEDOM OF INFORMATION ACT.—All in- 13 formation relating to proceedings of the Copyright 14 Claims Board under this title is exempt from disclo- 15 sure to the public under section 552(b)(3) of title 5, 16 except for determinations, records, and information 17 published under paragraph (3). 18 ‘‘(u) RESPONDENT’S DEFAULT.—If a proceeding has 19 been deemed an active proceeding but the respondent has 20 failed to appear or has ceased participating in the pro21 ceeding, as demonstrated by the respondent’s failure, 22 without justifiable cause, to meet one or more deadlines 23 or requirements set forth in the schedule adopted by the 24 Copyright Claims Board under subsection (k), the Copy25 right Claims Board may enter a default determination, in- EHF20881 JXP S.L.C. 44 1 cluding the dismissal of any counterclaim asserted by the 2 respondent, as follows and in accordance with such other 3 requirements as the Register of Copyrights may establish 4 by regulation: 5 ‘‘(1) The Copyright Claims Board shall require 6 the claimant to submit relevant evidence and other 7 information in support of the claimant’s claim and 8 any asserted damages and, upon review of such evi- 9 dence and any other requested submissions from the 10 claimant, shall determine whether the materials so 11 submitted are sufficient to support a finding in favor 12 of the claimant under applicable law and, if so, the 13 appropriate relief and damages, if any, to be award- 14 ed. 15 ‘‘(2) If the Copyright Claims Board makes an 16 affirmative determination under paragraph (1), the 17 Copyright Claims Board shall prepare a proposed 18 default determination, and shall provide written no- 19 tice to the respondent at all addresses, including 20 email addresses, reflected in the records of the pro- 21 ceeding before the Copyright Claims Board, of the 22 pendency of a default determination by the Copy- 23 right Claims Board and of the legal significance of 24 such determination. Such notice shall be accom- 25 panied by the proposed default determination and EHF20881 JXP S.L.C. 45 1 shall provide that the respondent has a period of 30 2 days, beginning on the date of the notice, to submit 3 any evidence or other information in opposition to 4 the proposed default determination. 5 ‘‘(3) If the respondent responds to the notice 6 provided under paragraph (2) within the 30-day pe- 7 riod provided in such paragraph, the Copyright 8 Claims Board shall consider respondent’s submis- 9 sions and, after allowing the other parties to address 10 such submissions, maintain, or amend its proposed 11 determination as appropriate, and the resulting de- 12 termination shall not be a default determination. 13 ‘‘(4) If the respondent fails to respond to the 14 notice provided under paragraph (2), the Copyright 15 Claims Board shall proceed to issue the default de- 16 termination as a final determination. Thereafter, the 17 respondent may only challenge such determination to 18 the extent permitted under section 1508(c), except 19 that, before any additional proceedings are initiated 20 under section 1508, the Copyright Claims Board 21 may, in the interests of justice, vacate the default 22 determination. 23 ‘‘(v) CLAIMANT’S FAILURE TO PROCEED.— 24 25 ‘‘(1) FAILURE TO COMPLETE SERVICE.—If a claimant fails to complete service on a respondent EHF20881 JXP S.L.C. 46 1 within the 90-day period required under subsection 2 (g), the Copyright Claims Board shall dismiss that 3 respondent from the proceeding without prejudice. If 4 a claimant fails to complete service on all respond- 5 ents within that 90-day period, the Copyright Claims 6 Board shall dismiss the proceeding without preju- 7 dice. 8 ‘‘(2) FAILURE TO PROSECUTE.—If a claimant 9 fails to proceed in an active proceeding, as dem- 10 onstrated by the claimant’s failure, without justifi- 11 able cause, to meet one or more deadlines or require- 12 ments set forth in the schedule adopted by the Copy- 13 right Claims Board under subsection (k), the Copy- 14 right Claims Board may, upon providing written no- 15 tice to the claimant and a period of 30 days, begin- 16 ning on the date of the notice, to respond to the no- 17 tice, and after considering any such response, issue 18 a determination dismissing the claimants’ claims, 19 which shall include an award of attorneys’ fees and 20 costs, if appropriate, under subsection (y)(2). There- 21 after, the claimant may only challenge such deter- 22 mination to the extent permitted under section 23 1508(c), except that, before any additional pro- 24 ceedings are initiated under section 1508, the Copy- EHF20881 JXP S.L.C. 47 1 right Claims Board may, in the interests of justice, 2 vacate the determination of dismissal. 3 ‘‘(w) REQUEST FOR RECONSIDERATION.—A party 4 may, within 30 days after the date on which the Copyright 5 Claims Board issues a final determination in a proceeding 6 under this chapter, submit a written request for reconsid7 eration of, or an amendment to, such determination if the 8 party identifies a clear error of law or fact material to 9 the outcome, or a technical mistake. After providing the 10 other parties an opportunity to address such request, the 11 Copyright Claims Board shall either deny the request or 12 issue an amended final determination. 13 ‘‘(x) REVIEW BY REGISTER.—If the Copyright 14 Claims Board denies a party a request for reconsideration 15 of a final determination under subsection (w), that party 16 may, within 30 days after the date of such denial, request 17 review of the final determination by the Register of Copy18 rights in accordance with regulations established by the 19 Register. Such request shall be accompanied by a reason20 able filing fee, as provided in such regulations. The review 21 by the Register shall be limited to consideration of whether 22 the Copyright Claims Board abused its discretion in deny23 ing reconsideration of the determination. After providing 24 the other parties an opportunity to address the request, 25 the Register shall either deny the request for review, or EHF20881 JXP S.L.C. 48 1 remand the proceeding to the Copyright Claims Board for 2 reconsideration of issues specified in the remand and for 3 issuance of an amended final determination. Such amend4 ed final determination shall not be subject to further con5 sideration or review, other than under section 1508(c). 6 ‘‘(y) CONDUCT OF PARTIES AND ATTORNEYS.— 7 ‘‘(1) CERTIFICATION.—The Register of Copy- 8 rights shall establish regulations requiring certifi- 9 cation of the accuracy and truthfulness of state- 10 ments made by participants in proceedings before 11 the Copyright Claims Board. 12 ‘‘(2) BAD FAITH CONDUCT.—Notwithstanding 13 any other provision of law, in any proceeding in 14 which a determination is rendered and it is estab- 15 lished that a party pursued a claim, counterclaim, or 16 defense for a harassing or other improper purpose, 17 or without a reasonable basis in law or fact, then, 18 unless inconsistent with the interests of justice, the 19 Copyright Claims Board shall in such determination 20 award reasonable attorneys’ fees and costs to any 21 adversely affected party of in an amount of not more 22 than $5,000, except that— 23 ‘‘(A) if an adversely affected party ap- 24 peared pro se in the proceeding, the award to EHF20881 JXP S.L.C. 49 1 that party shall be for costs only, in an amount 2 of not more than $2,500; and 3 ‘‘(B) in extraordinary circumstances, such 4 as where a party has demonstrated a pattern or 5 practice of bad faith conduct as described in 6 this paragraph, the Copyright Claims Board 7 may, in the interests of justice, award costs in 8 excess of the limitations under this paragraph. 9 ‘‘(3) ADDITIONAL PENALTY.—If the Board 10 finds that on more than one occasion within a 12- 11 month period a party pursued a claim, counterclaim, 12 or defense before the Copyright Claims Board for a 13 harassing or other improper purpose, or without a 14 reasonable basis in law or fact, that party shall be 15 barred from initiating a claim before the Copyright 16 Claims Board under this chapter for a period of 12 17 months beginning on the date on which the Board 18 makes such a finding. Any proceeding commenced 19 by that party that is still pending before the Board 20 when such a finding is made shall be dismissed with- 21 out prejudice, except that if a proceeding has been 22 deemed active under subsection (i), the proceeding 23 shall be dismissed under this paragraph only if the 24 respondent provides written consent thereto. EHF20881 JXP S.L.C. 50 1 ‘‘(z) REGULATIONS FOR SMALLER CLAIMS.—The 2 Register of Copyrights shall establish regulations to pro3 vide for the consideration and determination, by at least 4 one Copyright Claims Officer, of any claim under this 5 chapter in which total damages sought do not exceed 6 $5,000 (exclusive of attorneys’ fees and costs). A deter7 mination issued under this subsection shall have the same 8 effect as a determination issued by the entire Copyright 9 Claims Board. 10 ‘‘§ 1507. Effect of proceeding 11 ‘‘(a) DETERMINATION.—Subject to the reconsider- 12 ation and review processes provided under subsections (w) 13 and (x) of section 1506 and section 1508(c), the issuance 14 of a final determination by the Copyright Claims Board 15 in a proceeding, including a default determination or de16 termination based on a failure to prosecute, shall, solely 17 with respect to the parties to such determination, preclude 18 relitigation before any court or tribunal, or before the 19 Copyright Claims Board, of the claims and counterclaims 20 asserted and finally determined by the Board, and may 21 be relied upon for such purpose in a future action or pro22 ceeding arising from the same specific activity or activi23 ties, subject to the following: 24 ‘‘(1) A determination of the Copyright Claims 25 Board shall not preclude litigation or relitigation as EHF20881 JXP S.L.C. 51 1 between the same or different parties before any 2 court or tribunal, or the Copyright Claims Board, of 3 the same or similar issues of fact or law in connec- 4 tion with claims or counterclaims not asserted or not 5 finally determined by the Copyright Claims Board. 6 ‘‘(2) A determination of ownership of a copy- 7 righted work for purposes of resolving a matter be- 8 fore the Copyright Claims Board may not be relied 9 upon, and shall not have any preclusive effect, in 10 any other action or proceeding before any court or 11 tribunal, including the Copyright Claims Board. 12 ‘‘(3) Except to the extent permitted under this 13 subsection and section 1508, any determination of 14 the Copyright Claims Board may not be cited or re- 15 lied upon as legal precedent in any other action or 16 proceeding before any court or tribunal, including 17 the Copyright Claims Board. 18 ‘‘(b) CLASS ACTIONS NOT AFFECTED.— 19 ‘‘(1) IN GENERAL.—A proceeding before the 20 Copyright Claims Board shall not have any effect on 21 a class action proceeding in a district court of the 22 United States, and section 1509(a) shall not apply 23 to a class action proceeding in a district court of the 24 United States. EHF20881 JXP S.L.C. 52 1 ‘‘(2) NOTICE OF CLASS ACTION.—Any party to 2 an active proceeding before the Copyright Claims 3 Board who receives notice of a pending class action, 4 arising out of the same transaction or occurrence as 5 the proceeding before the Copyright Claims Board, 6 in which the party is a class member shall either— 7 ‘‘(A) opt out of the class action, in accord- 8 ance with regulations established by the Reg- 9 ister of Copyrights; or 10 ‘‘(B) seek dismissal under section 11 1506(q)(3) of the proceeding before the Copy- 12 right Claims Board. 13 ‘‘(c) OTHER MATERIALS IN PROCEEDING.—Except 14 as permitted under this section and section 1508, a sub15 mission or statement of a party or witness made in connec16 tion with a proceeding before the Copyright Claims Board, 17 including a proceeding that is dismissed, may not be cited 18 or relied upon in, or serve as the basis of, any action or 19 proceeding concerning rights or limitations on rights 20 under this title before any court or tribunal, including the 21 Copyright Claims Board. 22 ‘‘(d) APPLICABILITY OF SECTION 512(g).—A claim 23 or counterclaim before the Copyright Claims Board that 24 is brought under subsection (c)(1) or (c)(4) of section 25 1504, or brought under subsection (c)(6) of section 1504 EHF20881 JXP S.L.C. 53 1 and that relates to a claim under subsection (c)(1) or 2 (c)(4) of such section, qualifies as an action seeking an 3 order to restrain a subscriber from engaging in infringing 4 activity under section 512(g)(2)(C) if— 5 ‘‘(1) notice of the commencement of the Copy- 6 right Claims Board proceeding is provided by the 7 claimant to the service provider’s designated agent 8 before the service provider replaces the material fol- 9 lowing receipt of a counter notification under section 10 512(g); and 11 ‘‘(2) the claim brought alleges infringement of 12 the material identified in the notification of claimed 13 infringement under section 512(c)(1)(C). 14 ‘‘(e) FAILURE TO ASSERT COUNTERCLAIM.—The 15 failure or inability to assert a counterclaim in a proceeding 16 before the Copyright Claims Board shall not preclude the 17 assertion of that counterclaim in a subsequent court action 18 or proceeding before the Copyright Claims Board. 19 ‘‘(f) OPT-OUT OR DISMISSAL OF PARTY.—If a party 20 has timely opted out of a proceeding under section 1506(i) 21 or is dismissed from a proceeding before the Copyright 22 Claims Board issues a final determination in the pro23 ceeding, the determination shall not be binding upon and 24 shall have no preclusive effect with respect to that party. EHF20881 JXP S.L.C. 54 1 ‘‘§ 1508. Review and confirmation by district court 2 ‘‘(a) IN GENERAL.—In any proceeding in which a 3 party has failed to pay damages, or has failed otherwise 4 to comply with the relief, awarded in a final determination 5 of the Copyright Claims Board, including a default deter6 mination or a determination based on a failure to pros7 ecute, the aggrieved party may, not later than 1 year after 8 the date on which the final determination is issued, any 9 reconsideration by the Copyright Claims Board or review 10 by the Register of Copyrights is resolved, or an amended 11 final determination is issued, whichever occurs last, apply 12 to the United States District Court for the District of Co13 lumbia or any other appropriate district court of the 14 United States for an order confirming the relief awarded 15 in the final determination and reducing such award to 16 judgment. The court shall grant such order and direct 17 entry of judgment unless the determination is or has been 18 vacated, modified, or corrected under subsection (c). If the 19 United States District Court for the District of Columbia 20 or other district court of the United States, as the case 21 may be, issues an order confirming the relief awarded by 22 the Copyright Claims Board, the court shall impose on the 23 party who failed to pay damages or otherwise comply with 24 the relief, the reasonable expenses required to secure such 25 order, including attorneys’ fees, that were incurred by the 26 aggrieved party. EHF20881 JXP S.L.C. 55 1 ‘‘(b) FILING PROCEDURES.— 2 ‘‘(1) APPLICATION TO CONFIRM DETERMINA- 3 TION.—Notice 4 (a) for confirmation of a determination of the Copy- 5 right Claims Board and entry of judgment shall be 6 provided to all parties to the proceeding before the 7 Copyright Claims Board that resulted in the deter- 8 mination, in accordance with the procedures applica- 9 ble to service of a motion in the district court of the 10 11 12 of the application under subsection United States where the application is made. ‘‘(2) CONTENTS OF APPLICATION.—The appli- cation shall include the following: 13 ‘‘(A) A certified copy of the final or 14 amended final determination of the Copyright 15 Claims Board, as reflected in the records of the 16 Copyright Claims Board, following any process 17 of reconsideration or review by the Register of 18 Copyrights, to be confirmed and rendered to 19 judgment. 20 21 22 23 24 ‘‘(B) A declaration by the applicant, under penalty of perjury— ‘‘(i) that the copy is a true and correct copy of such determination; ‘‘(ii) stating the date it was issued; EHF20881 JXP S.L.C. 56 ‘‘(iii) stating the basis for the chal- 1 2 lenge under subsection (c)(1); and 3 ‘‘(iv) stating whether the applicant is 4 aware of any other proceedings before the 5 court concerning the same determination 6 of the Copyright Claims Board. 7 8 ‘‘(c) CHALLENGES TO THE DETERMINATION.— ‘‘(1) BASES FOR CHALLENGE.—Not later than 9 90 days after the date on which Copyright Claims 10 Board issues a final or amended final determination 11 in a proceeding, or not later than 90 days after the 12 date on which the Register of Copyrights completes 13 any process of reconsideration or review of the deter- 14 mination, whichever occurs later, a party may seek 15 a court order vacating, modifying, or correcting the 16 determination of the Copyright Claims Board in the 17 following cases: 18 ‘‘(A) If the determination was issued as a 19 result of fraud, corruption, misrepresentation, 20 or other misconduct. 21 ‘‘(B) If the Copyright Claims Board ex- 22 ceeded its authority or failed to render a final 23 determination concerning the subject matter at 24 issue. EHF20881 JXP S.L.C. 57 1 ‘‘(C) In the case of a default determination 2 or determination based on a failure to pros- 3 ecute, if it is established that the default or fail- 4 ure was due to excusable neglect. 5 ‘‘(2) PROCEDURE 6 ‘‘(A) NOTICE TO CHALLENGE.— OF APPLICATION.—Notice of 7 the application to challenge a determination of 8 the Copyright Claims Board shall be provided 9 to all parties to the proceeding before the Copy- 10 right Claims Board, in accordance with the pro- 11 cedures applicable to service of a motion in the 12 court where the application is made. 13 ‘‘(B) STAYING OF PROCEEDINGS.—For 14 purposes of an application under this sub- 15 section, any judge who is authorized to issue an 16 order to stay the proceedings in an any other 17 action brought in the same court may issue an 18 order, to be served with the notice of applica- 19 tion, staying proceedings to enforce the award 20 while the challenge is pending. 21 ‘‘§ 1509. Relationship to other district court actions 22 ‘‘(a) STAY OF DISTRICT COURT PROCEEDINGS.— 23 Subject to section 1507(b), a district court of the United 24 States shall issue a stay of proceedings or such other relief 25 as the court determines appropriate with respect to any EHF20881 JXP S.L.C. 58 1 claim brought before the court that is already the subject 2 of a pending or active proceeding before the Copyright 3 Claims Board. 4 5 ‘‘(b) ALTERNATIVE DISPUTE RESOLUTION PROCESS.—A proceeding before the Copyright Claims Board 6 under this chapter shall qualify as an alternative dispute 7 resolution process under section 651 of title 28 for pur8 poses of referral of eligible cases by district courts of the 9 United States upon the consent of the parties. 10 ‘‘§ 1510. Implementation by Copyright Office 11 12 ‘‘(a) REGULATIONS.— ‘‘(1) IMPLEMENTATION GENERALLY.—The Reg- 13 ister of Copyrights shall establish regulations to 14 carry out this chapter. Such regulations shall include 15 the fees prescribed under subsections (e) and (x) of 16 section 1506. The authority to issue such fees shall 17 not limit the authority of the Register of Copyrights 18 to establish fees for services under section 708. All 19 fees received by the Copyright Office in connection 20 with the activities under this chapter shall be depos- 21 ited by the Register of Copyrights and credited to 22 the appropriations for necessary expenses of the Of- 23 fice in accordance with section 708(d). In estab- 24 lishing regulations under this subsection, the Reg- 25 ister of Copyrights shall provide for the efficient ad- EHF20881 JXP S.L.C. 59 1 ministration of the Copyright Claims Board, and for 2 the ability of the Copyright Claims Board to timely 3 complete proceedings instituted under this chapter, 4 including by implementing mechanisms to prevent 5 harassing or improper use of the Copyright Claims 6 Board by any party. 7 8 ‘‘(2) LIMITS ON MONETARY RELIEF.— ‘‘(A) IN GENERAL.—Subject to subpara- 9 graph (B), the Register of Copyrights may, in 10 order to further the goals of the Copyright 11 Claims Board, conduct a rulemaking to adjust 12 the limits on monetary recovery or attorneys’ 13 fees and costs that may be awarded under this 14 chapter. 15 ‘‘(B) EFFECTIVE DATE OF ADJUST- 16 MENT.—Any 17 makes an adjustment shall take effect at the 18 end of the 120-day period beginning on the 19 date on which the Register of Copyrights sub- 20 mits the rule to Congress and only if Congress 21 does not, during that 120-day period, enact a 22 law that provides in substance that Congress 23 does not approve the rule. 24 rule under subparagraph (A) that ‘‘(b) NECESSARY FACILITIES.—Subject to applicable 25 law, the Register of Copyrights may retain outside vendors EHF20881 JXP S.L.C. 60 1 to establish internet-based, teleconferencing, and other fa2 cilities required to operate the Copyright Claims Board. 3 ‘‘(c) FEES.—Any filing fees, including the fee to com- 4 mence a proceeding under section 1506(e), shall be pre5 scribed in regulations established by the Register of Copy6 rights. The sum total of such filing fees shall be in an 7 amount of at least $100, may not exceed the cost of filing 8 an action in a district court of the United States, and shall 9 be fixed in amounts that further the goals of the Copyright 10 Claims Board. 11 ‘‘§ 1511. Funding 12 ‘‘There are authorized to be appropriated such sums 13 as may be necessary to pay the costs incurred by the Copy14 right Office under this chapter that are not covered by 15 fees collected for services rendered under this chapter, in16 cluding the costs of establishing and maintaining the 17 Copyright Claims Board and its facilities.’’. 18 (b) CLERICAL AMENDMENT.—The table of chapters 19 for title 17, United States Code, is amended by adding 20 after the item relating to chapter 14 the following: ‘‘15. Copyright Small Claims ........................................................ 1501’’. 21 22 SEC. 102. IMPLEMENTATION. Not later 1 year after the date of enactment of this 23 Act, the Copyright Claims Board established under section 24 1502 of title 17, United States Code, as added by section 25 101 of this Act, shall begin operations. EHF20881 JXP S.L.C. 61 1 2 SEC. 103. STUDY. Not later than 3 years after the date on which the 3 Copyright Claims Board issues the first determination of 4 the Copyright Claims Board under chapter 15 of title 17, 5 United States Code, as added by section 101 of this Act, 6 the Register of Copyrights shall conduct, and report to 7 Congress on, a study that addresses the following: 8 (1) The use and efficacy of the Copyright 9 Claims Board in resolving copyright claims, includ- 10 ing the number of proceedings the Copyright Claims 11 Board could reasonably administer. 12 (2) Whether adjustments to the authority of the 13 Copyright Claims Board are necessary or advisable, 14 including with respect to— 15 (A) eligible claims, such as claims under 16 section 1202 of title 17, United States Code; 17 and 18 (B) works and applicable damages limita- 19 tions. 20 (3) Whether greater allowance should be made 21 to permit awards of attorneys’ fees and costs to pre- 22 vailing parties, including potential limitations on 23 such awards. 24 (4) Potential mechanisms to assist copyright 25 owners with small claims in ascertaining the identity 26 and location of unknown online infringers. EHF20881 JXP S.L.C. 62 1 (5) Whether the Copyright Claims Board 2 should be expanded to offer mediation or other non- 3 binding alternative dispute resolution services to in- 4 terested parties. 5 (6) Such other matters as the Register of Copy- 6 rights believes may be pertinent concerning the 7 Copyright Claims Board. 8 9 SEC. 104. SEVERABILITY. If any provision of this title, an amendment made by 10 this title, or the application of such provision or amend11 ment to any person or circumstance is held to be unconsti12 tutional, the remainder of this title and the amendments 13 made by this title, and the application of the provision or 14 the amendment to any other person or circumstance, shall 15 not be affected. 17 TITLE II—GOOD SAMARITAN BLOCKING 18 SEC. 201. PROTECTION FROM CIVIL LIABILITY FOR ‘‘GOOD 19 SAMARITAN’’ BLOCKING AND SCREENING OF 20 OFFENSIVE MATERIAL. 16 21 Section 230 of the Communications Act of 1934 (47 22 U.S.C. 230) is amended— 23 24 (1) in subsection (c)— (A) in paragraph (1)— EHF20881 JXP S.L.C. 63 1 (i) by striking ‘‘No provider’’ and in- 2 serting the following: 3 ‘‘(A) IN 4 GENERAL.—No (ii) by adding at the end the fol- 5 lowing: 6 ‘‘(B) APPLICABILITY.— 7 provider’’; and ‘‘(i) IN GENERAL.—Subparagraph (A) 8 shall not apply to any decision or agree- 9 ment made or action taken by a provider 10 or user of an interactive computer service 11 to restrict access to or availability of mate- 12 rial provided by another information con- 13 tent provider. 14 ‘‘(ii) CIVIL LIABILITY.—Any applica- 15 ble immunity for a decision or agreement 16 made or action taken by a provider or user 17 of an interactive computer service de- 18 scribed in clause (i) shall be provided solely 19 by paragraph (2).’’; and 20 (B) in paragraph (2)— 21 (i) in subparagraph (A)— 22 (I) by striking ‘‘considers to be’’ 23 and inserting ‘‘has an objectively rea- 24 sonable belief is’’; and EHF20881 JXP S.L.C. 64 1 (II) by striking ‘‘or otherwise ob- 2 jectionable’’ and inserting ‘‘promoting 3 self-harm, promoting terrorism, or un- 4 lawful’’; and 5 (ii) in subparagraph (B), by striking 6 ‘‘paragraph (1)’’ and inserting ‘‘subpara- 7 graph (A)’’; and 8 (2) in subsection (f)(3)— 9 10 (A) by striking ‘‘The term’’ and inserting the following: 11 ‘‘(A) IN GENERAL.—The term’’; and 12 (B) by adding at the end the following: 13 ‘‘(B) RESPONSIBILITY.—For purposes of 14 subparagraph (A), being responsible in whole or 15 in part for the creation or development of infor- 16 mation— 17 ‘‘(i) includes any instance in which a 18 person or entity editorializes or affirma- 19 tively and substantively modifies the con- 20 tent of another person or entity; and 21 ‘‘(ii) does not include a change to the 22 format, layout, or basic appearance of the 23 content of another person or entity.’’.