1. Limitations on liability relating tomaterial online

(a) Transitory Digital Network Communications.-A serviceprovider shall not be liable for monetary relief, or, except asprovided in subsection.

(b), for injunctive or other equitable relief, for infringementof copyright by reason of the provider's transmitting, routing,or providing connections for, material through a system ornetwork controlled or operated by or for the service provider,or by reason of the intermediate and transient storage of thatmaterial in the course of such transmitting, routing, orproviding connections, if:

(1) the transmission of the material was initiated by or at thedirection of a person other than the service provider;

(2) the transmission, routing, provision of connections, orstorage is carried out through an automatic technical processwithout selection of the material by the service provider;
(3) the service provider does not select the recipients of thematerial except as an automatic response to the request ofanother person;

(4) no copy of the material made by the service provider in thecourse of such intermediate or transient storage is maintainedon the system or network in a manner ordinarily accessible toanyone other than anticipated recipients, and no such copy ismaintained on the system or network in a manner ordinarilyaccessible to such anticipated recipients for a longer periodthan is reasonably necessary for the transmission, routing, orprovision of connections; and

(5) the material is transmitted through the system or network without modification of its content.

 

2. Determination of reasonable license feesfor individual proprietors In the case of any performing rightssociety subject to a consent decree which provides for the determination of reasonable license rates or fees to be chargedby the performing rights society, notwithstanding the provisionsof that consent decree, an individual proprietor who owns oroperates fewer than 7 non-publicly traded establishments in which nondramatic musical works are performed publicly and who claims that any license agreement offered by that performingrights society is unreasonable in its license rate or fee as tothat individual proprietor, shall be entitled to determinationof a reasonable license rate or fee as follows:

(1) The individual proprietor may commence such proceeding for determination of a reasonable license rate or fee by filing an application in the applicable district court under paragraph (2)that a rate disagreement exists and by serving a copy of the application on the performing rights society. Such proceeding shall commence in the applicable district court within 90 days after the service of such copy, except that such 90-day requirement shall be subject to the administrative requirements of the court.

(2) The proceeding under paragraph (1) shall be held, at the individual proprietor's election, in the judicial district of the district court with jurisdiction over the applicable consentdecree or in that place of holding court of a district court that is the seat of the Federal circuit (other than the Court of Appeals for the Federal Circuit) in which the proprietor's establishment is located.

(3) Such proceeding shall be held before the judge of the court with jurisdiction over the consent decree governing the performing rights society. At the discretion of the court, the proceeding shall be held before a special master or magistratejudge appointed by such judge. Should that consent decreeprovide for the appointment of an advisor or advisors to the court for any purpose, any such advisor shall be the special master so named by the court.

(4) In any such proceeding, the industry rate shall be presumed to have been reasonable at the time it was agreed to ordeter mined by the court. Such presumption shall in no way affect a determination of whether the rate is being correctly applied to the individual proprietor.

(5) Pending the completion of such proceeding, the individual proprietor shall have the right to perform publicly copyrighted musical compositions in the repertoire of the performing rights society by paying an interim license rate or fee into an interest bearing escrow account with the clerk of the court, subject to retroactive adjustment when a final rate or fee has been determined, in an amount equal to the industry rate, or, in the absence of an industry rate, the amount of the most recent license rate or fee agreed to by the parties.

(6) Any decision rendered in such proceeding by a special master or magistrate judge named under paragraph (3) shall be reviewed by the judge of the court with jurisdiction over the consentdecree governing the performing rights society. Such proceeding,including such review, shall be concluded within 6 months afterits commencement.

(7) Any such final determination shall be binding only as to the individual proprietor commencing the p! roceeding, and shall not be applicable to any other proprietor or any other performing rights society, and the performing rights society shall berelieved of any obligation of nondiscrimination among similarlysituated music users that may be imposed by the consent decreeg overning its operations.

( 8 ) An individual proprietor may not bring more than one proceeding provided for in this section for the determination of a reasonable license rate or fee under any license agreement with respect to any one performing rights society.

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