Online Content Policy Modernization Act

II 116TH CONGRESS 2D SESSION S. 4632 To amend title 17, United States Code, to establish an alternative dispute resolution program for copyright small claims, to amend the Communica- tions 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 SEPTEMBER 21, 2020 Mr. MCCONNELL (for Mr. GRAHAM) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Online Content Policy Modernization Act’’. 5 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4632 IS (b) TABLE OF CONTENTS.—The table of contents for 1 this Act is as follows: 2 Sec. 1. Short title; table of contents. TITLE I—COPYRIGHT SMALL CLAIMS Sec. 101. Copyright small claims. Sec. 102. Implementation. Sec. 103. Study. Sec. 104. Severability. TITLE II—GOOD SAMARITAN BLOCKING Sec. 201. Protection from civil liability for ‘‘good Samaritan’’ blocking and screening of offensive material. TITLE I—COPYRIGHT SMALL 3 CLAIMS 4 SEC. 101. COPYRIGHT SMALL CLAIMS. 5 (a) IN GENERAL.—Title 17, United States Code, is 6 amended by adding at the end the following: 7 ‘‘CHAPTER 15—COPYRIGHT SMALL 8 CLAIMS 9 ‘‘1501. Definitions. ‘‘1502. Copyright Claims Board. ‘‘1503. Authority and duties of the Copyright Claims Board. ‘‘1504. Nature of proceedings. ‘‘1505. Registration requirement. ‘‘1506. Conduct of proceedings. ‘‘1507. Effect of proceeding. ‘‘1508. Review and confirmation by district court. ‘‘1509. Relationship to other district court actions. ‘‘1510. Implementation by Copyright Office. ‘‘1511. Funding. ‘‘§ 1501. Definitions 10 ‘‘In this chapter— 11 ‘‘(1) the term ‘party’— 12 ‘‘(A) means a party; and 13 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4632 IS ‘‘(B) includes the attorney of a party, as 1 applicable; 2 ‘‘(2) the term ‘claimant’ means the real party 3 in interest that commences a proceeding before the 4 Copyright Claims Board under section 1506(e), pur- 5 suant to a permissible claim of infringement brought 6 under section 1504(c)(1), noninfringement brought 7 under section 1504(c)(2), or misrepresentation 8 brought under section 1504(c)(3); 9 ‘‘(3) the term ‘counterclaimant’ means a re- 10 spondent in a proceeding before the Copyright 11 Claims Board that— 12 ‘‘(A) asserts a permissible counterclaim 13 under section 1504(c)(4) against the claimant 14 in the proceeding; and 15 ‘‘(B) is the real party in interest with re- 16 spect to the counterclaim described in subpara- 17 graph (A); and 18 ‘‘(4) the term ‘respondent’ means any person 19 against whom a proceeding is brought before the 20 Copyright Claims Board under section 1506(e), pur- 21 suant to a permissible claim of infringement brought 22 under section 1504(c)(1), noninfringement brought 23 under section 1504(c)(2), or misrepresentation 24 brought under section 1504(c)(3). 25 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4632 IS ‘‘§ 1502. Copyright Claims Board 1 ‘‘(a) IN GENERAL.—There is established in the Copy- 2 right Office the Copyright Claims Board, which shall serve 3 as an alternative forum in which parties may voluntarily 4 seek to resolve certain copyright claims regarding any cat- 5 egory of copyrighted work, as provided in this chapter. 6 ‘‘(b) OFFICERS AND STAFF.— 7 ‘‘(1) COPYRIGHT CLAIMS OFFICERS.—The Reg- 8 ister of Copyrights shall recommend 3 full-time 9 Copyright Claims Officers to serve on the Copyright 10 Claims Board in accordance with paragraph (3)(A). 11 The Officers shall be appointed by the Librarian of 12 Congress to such positions after consultation with 13 the Register of Copyrights. 14 ‘‘(2) COPYRIGHT CLAIMS ATTORNEYS.—The 15 Register of Copyrights shall hire not fewer than 2 16 full-time Copyright Claims Attorneys to assist in the 17 administration of the Copyright Claims Board. 18 ‘‘(3) QUALIFICATIONS.— 19 ‘‘(A) COPYRIGHT CLAIMS OFFICERS.— 20 ‘‘(i) IN GENERAL.—Each Copyright 21 Claims Officer shall be an attorney who 22 has not fewer than 7 years of legal experi- 23 ence. 24 ‘‘(ii) EXPERIENCE.—Two of the Copy- 25 right Claims Officers shall have— 26 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4632 IS ‘‘(I) substantial experience in the 1 evaluation, litigation, or adjudication 2 of copyright infringement claims; and 3 ‘‘(II) between those 2 Officers, 4 have represented or presided over a 5 diversity of copyright interests, includ- 6 ing those of both owners and users of 7 copyrighted works. 8 ‘‘(iii) ALTERNATIVE DISPUTE RESOLU- 9 TION.—The Copyright Claims Officer not 10 described in clause (ii) shall have substan- 11 tial familiarity with copyright law and ex- 12 perience in the field of alternative dispute 13 resolution, including the resolution of liti- 14 gation matters through that method of res- 15 olution. 16 ‘‘(B) COPYRIGHT CLAIMS ATTORNEYS.— 17 Each Copyright Claims Attorney shall be an at- 18 torney who has not fewer than 3 years of sub- 19 stantial experience in copyright law. 20 ‘‘(4) COMPENSATION.— 21 ‘‘(A) COPYRIGHT CLAIMS OFFICERS.— 22 ‘‘(i) DEFINITION.—In this subpara- 23 graph, the term ‘senior level employee of 24 the Federal Government’ means an em- 25 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4632 IS ployee, other than an employee in the Sen- 1 ior Executive Service, the position of whom 2 is classified above GS–15 of the General 3 Schedule. 4 ‘‘(ii) PAY RANGE.—Each Copyright 5 Claims Officer shall be compensated at a 6 rate of pay that is not less than the min- 7 imum, and not more than the maximum, 8 rate of pay payable for senior level employ- 9 ees of the Federal Government, including 10 locality pay, as applicable. 11 ‘‘(B) COPYRIGHT CLAIMS ATTORNEYS.— 12 Each Copyright Claims Attorney shall be com- 13 pensated at a rate of pay that is not more than 14 the maximum rate of pay payable for level 10 15 of GS–15 of the General Schedule, including lo- 16 cality pay, as applicable. 17 ‘‘(5) TERMS.— 18 ‘‘(A) IN GENERAL.—Subject to subpara- 19 graph (B), a Copyright Claims Officer shall 20 serve for a renewable term of 6 years. 21 ‘‘(B) INITIAL TERMS.—The terms for the 22 first Copyright Claims Officers appointed under 23 this chapter shall be as follows: 24 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4632 IS ‘‘(i) The first such Copyright Claims 1 Officer appointed shall be appointed for a 2 term of 4 years. 3 ‘‘(ii) The second Copyright Claims Of- 4 ficer appointed shall be appointed for a 5 term of 5 years. 6 ‘‘(iii) The third Copyright Claims Of- 7 ficer appointed shall be appointed for a 8 term of 6 years. 9 ‘‘(6) VACANCIES AND INCAPACITY.— 10 ‘‘(A) VACANCY.— 11 ‘‘(i) IN GENERAL.—If a vacancy oc- 12 curs in the position of a Copyright Claims 13 Officer, the Librarian of Congress shall, 14 upon the recommendation of, and in con- 15 sultation with, the Register of Copyrights, 16 act expeditiously to appoint a Copyright 17 Claims Officer for that position. 18 ‘‘(ii) VACANCY BEFORE EXPIRA- 19 TION.—An individual appointed to fill a 20 vacancy occurring before the expiration of 21 the term for which the predecessor of the 22 individual was appointed shall be appointed 23 to serve a 6-year term. 24 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4632 IS ‘‘(B) INCAPACITY.—If a Copyright Claims 1 Officer is temporarily unable to perform the du- 2 ties of the Officer, the Librarian of Congress 3 shall, upon recommendation of, and in consulta- 4 tion with, the Register of Copyrights, act expe- 5 ditiously to appoint an interim Copyright 6 Claims Officer to perform such duties during 7 the period of such incapacity. 8 ‘‘(7) SANCTION OR REMOVAL.—Subject to sec- 9 tion 1503(b), the Librarian of Congress may sanc- 10 tion or remove a Copyright Claims Officer. 11 ‘‘(8) ADMINISTRATIVE SUPPORT.—The Register 12 of Copyrights shall provide the Copyright Claims Of- 13 ficers and Copyright Claims Attorneys with nec- 14 essary administrative support, including techno- 15 logical facilities, to carry out the duties of the Offi- 16 cers and Attorneys under this chapter. 17 ‘‘(9) LOCATION OF COPYRIGHT CLAIMS 18 BOARD.—The offices and facilities of the Copyright 19 Claims Officers and Copyright Claims Attorneys 20 shall be located at the Copyright Office. 21 ‘‘§ 1503. Authority and duties of the Copyright Claims 22 Board 23 ‘‘(a) FUNCTIONS.— 24 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4632 IS ‘‘(1) COPYRIGHT CLAIMS OFFICERS.—Subject 1 to the provisions of this chapter and applicable regu- 2 lations, the functions of the Copyright Claims Offi- 3 cers shall be as follows: 4 ‘‘(A) To render determinations on the civil 5 copyright claims, counterclaims, and defenses 6 that may be brought before the Officers under 7 this chapter. 8 ‘‘(B) To ensure that claims, counterclaims, 9 and defenses are properly asserted and other- 10 wise appropriate for resolution by the Copyright 11 Claims Board. 12 ‘‘(C) To manage the proceedings before the 13 Officers and render rulings pertaining to the 14 consideration of claims, counterclaims, and de- 15 fenses, including with respect to scheduling, dis- 16 covery, evidentiary, and other matters. 17 ‘‘(D) To request, from participants and 18 nonparticipants in a proceeding, the production 19 of information and documents relevant to the 20 resolution of a claim, counterclaim, or defense. 21 ‘‘(E) To conduct hearings and conferences. 22 ‘‘(F) To facilitate the settlement by the 23 parties of claims and counterclaims. 24 ‘‘(G)(i) To award monetary relief; and 25 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4632 IS ‘‘(ii) to include in the determinations of 1 the Officers a requirement that certain activi- 2 ties under section 1504(e)(2) cease or be miti- 3 gated, if the party to undertake the applicable 4 measure has so agreed. 5 ‘‘(H) To provide information to the public 6 concerning the procedures and requirements of 7 the Copyright Claims Board. 8 ‘‘(I) To maintain records of the pro- 9 ceedings before the Officers, certify official 10 records of such proceedings as needed, and, as 11 provided in section 1506(t), make the records 12 in such proceedings available to the public. 13 ‘‘(J) To carry out such other duties as are 14 set forth in this chapter. 15 ‘‘(K) When not engaged in performing the 16 duties of the Officers set forth in this chapter, 17 to perform such other duties as may be as- 18 signed by the Register of Copyrights. 19 ‘‘(2) COPYRIGHT CLAIMS ATTORNEYS.—Subject 20 to the provisions of this chapter and applicable regu- 21 lations, the functions of the Copyright Claims Attor- 22 neys shall be as follows: 23 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4632 IS ‘‘(A) To provide assistance to the Copy- 1 right Claims Officers in the administration of 2 the duties of those Officers under this chapter. 3 ‘‘(B) To provide assistance to members of 4 the public with respect to the procedures and 5 requirements of the Copyright Claims Board. 6 ‘‘(C) To provide information to potential 7 claimants contemplating bringing a permissible 8 action before the Copyright Claims Board about 9 obtaining a subpoena under section 512(h) for 10 the sole purpose of identifying a potential re- 11 spondent in such an action. 12 ‘‘(D) When not engaged in performing the 13 duties of the Attorneys set forth in this chapter, 14 to perform such other duties as may be as- 15 signed by the Register of Copyrights. 16 ‘‘(b) INDEPENDENCE IN DETERMINATIONS.— 17 ‘‘(1) IN GENERAL.—The Copyright Claims 18 Board shall render the determinations of the Board 19 in individual proceedings independently on the basis 20 of the records in the proceedings before it and in ac- 21 cordance with the provisions of this title, judicial 22 precedent, and applicable regulations of the Register 23 of Copyrights. 24 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4632.IS S4632 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4632 IS ‘‘(2) CONSULTATION.—The Copyright Claims 1 Officers and Copyright Claims Attorneys— 2 ‘‘(A) may consult with the Register of 3 Copyrights on general issues of law; and 4 ‘‘(B) subject to section 1506(x), may not 5 consult with the Register of Copyrights with re- 6 spect to— 7 ‘‘(i) the facts of any particular matter 8 pending before the Officers and the Attor- 9 neys; or 10 ‘‘(ii) the application of law to the 11 facts described in clause (i). 12 ‘‘(3) PERFORMANCE APPRAISALS.—Notwith- 13 standing any other provision of law or any regula- 14 tion or policy of the Library of Congress or Register 15 of Copyrights, any performance appraisal of a Copy- 16 right Claims Officer or Copyright Claims Attorney 17 may not consider the substantive result of any indi- 18 vidual determination reached by the Copyright 19 Claims Board as a basis for appraisal except to the 20 extent that result may relate to any actual or alleged 21 violation of an ethical standard of conduct. 22 ‘‘(c) DIRECTION BY REGISTER.—Subject to sub- 23 section (b), the Copyright Claims Officers and Copyright 24 Claims Attorneys shall, in the administration of their du- 25 VerDate Sep 11 2014 02:03 Oct 09, 2020 Jkt 019200 PO 00000 F [Text truncated for display. 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