SA 5669. Mr. WHITEHOUSE (for Mr. Kyl) proposed an amendment to the bill S. 2913, to provide a limitation on judicial remedies in copyright infringement cases involving orphan works; as follows:

On page 19, line 21, strike all through page 20, line 12.
On page 20, line 13, strike ``(2)'' and insert ``(1)''.
On page 21, line 10, strike ``(3)'' and insert ``(2)''.
On page 21, line 16, strike ``(4)'' and insert ``(3)''.
On page 23, line 15, insert ``and'' at the end.
On page 23, strike lines 16 through 20.
On page 23, line 21, strike ``(vi)'' and insert ``(v)''.
On page 25, line 1, strike all through page 27, line 7 and insert the following:
``(i) IN GENERAL.--A search qualifies under paragraph (1)(A)(i)(I) if the infringer, a person acting on behalf of the infringer, or any person jointly and severally liable with the infringer for the infringement, undertakes a diligent effort that is reasonable under the circumstances to locate the owner of the infringed copyright prior to, and at a time reasonably proximate to, the infringement.
``(ii) DILIGENT EFFORT.--For purposes of clause (i), a diligent effort--
``(I) requires, at a minimum--
``(aa) a search of the records of the Copyright Office that are available to the public through the Internet and relevant to identifying and locating copyright owners, provided there is sufficient identifying information on which to construct a search;
``(bb) a search of reasonably available sources of copyright authorship and ownership information and, where appropriate, licensor information;
``(cc) use of appropriate technology tools, printed publications, and where reasonable, internal or external expert assistance; and
``(dd) use of appropriate databases, including databases that are available to the public through the Internet; and
``(II) shall include any actions that are reasonable and appropriate under the facts relevant to the search, including actions based on facts known at the start of the search and facts uncovered during the search, and including a review, as appropriate, of Copyright Office records not available to the public through the Internet that are reasonably likely to be useful in identifying and locating the copyright owner.
``(iii) CONSIDERATION OF RECOMMENDED PRACTICES.--A qualifying search under this subsection shall ordinarily be based on the applicable statement of Recommended Practices made available by the Copyright Office and additional appropriate best practices of authors, copyright owners, and users to the extent such best practices incorporate the expertise of persons with specialized knowledge with respect to the type of work for which the search is being conducted.
``(iv) LACK OF IDENTIFYING INFORMATION.--The fact that, in any given situation,--
``(I) a particular copy or phonorecord lacks identifying information pertaining to the owner of the infringed copyright; or
``(II) an owner of the infringed copyright fails to respond to any inquiry or other communication about the work,
shall not be deemed sufficient to meet the conditions under paragraph (1)(A)(i)(I).
``(v) USE OF RESOURCES FOR CHARGE.--A qualifying search under paragraph (1)(A)(i)(I) may require use of resources for which a charge or subscription is imposed to the extent reasonable under the circumstances.
``(B) INFORMATION TO GUIDE SEARCHES; RECOMMENDED PRACTICES.--
``(i) STATEMENTS OF RECOMMENDED PRACTICES.--The Register of Copyrights shall maintain and make available to the public and, from time to time, update at least one statement of Recommended Practices for each category, or, in the Register's discretion, subcategory of work under section 102(a) of this title, for conducting and documenting a search under this subsection. Such statement will ordinarily include reference to materials, resources, databases, and technology tools that are relevant
to a search. The Register may maintain and make available more than one statement of Recommended Practices for each category or subcategory, as appropriate.
``(ii) CONSIDERATION OF RELEVANT MATERIALS.--In maintaining and making available and, from time to time, updating the Recommended Practices in clause (i), the Register of Copyrights shall, at the Register's discretion, consider materials, resources, databases, technology tools, and practices that are reasonable and relevant to the qualifying search. The Register shall consider any comments submitted to the Copyright Office by the Small Business Administration Office of Advocacy. The Register
shall also, to the extent practicable, take the impact on copyright owners that are small businesses into consideration when modifying and updating best practices.
On page 30, strike lines 1 through 15 and insert the following:
``(C) LIMITATIONS.--The limitations on injunctive relief under subparagraphs (A) and (B) shall not be available to an infringer or a representative of the infringer acting in an official capacity if the infringer asserts that neither the infringer nor any representative of the infringer acting in an official capacity is subject to suit in the courts of the United States for an award of damages for the infringement, unless the court finds that the infringer--
``(i) has complied with the requirements of subsection (b); and
``(ii) pays reasonable compensation to the owner of the exclusive right under the infringed copyright in a reasonably timely manner after the amount of reasonable compensation has been agreed upon with the owner or determined by the court.
On page 31, line 23, insert ``commercial'' after ``other''.
On page 33, line 17, insert ``Prior to certifying that databases are available under this section, the Register shall determine, to the extent practicable, their impact on copyright owners that are small businesses and consult with the Small Business Administration Office of Advocacy regarding those impacts. The Register shall consider the Office of Advocacy's comments and respond to any concerns.'' after the period.


(As printed in the Congressional Record for the Senate on Sep 26, 2008.)