17 U.S.C. § 512 — Limitations on liability relating to material

Page 174 TITLE 17—COPYRIGHTS § 511 Editorial Notes AMENDMENTS 1999—Pub. L. 106–113, § 1000(a)(9) [title I, § 1011(a)(1)], substituted ‘‘programming’’ for ‘‘programing’’ in sec- tion catchline. Subsec. (b). Pub. L. 106–113, § 1000(a)(9) [title I, § 1011(a)(3)], substituted ‘‘statutory’’ for ‘‘compulsory’’. § 511. Liability of States, instrumentalities of States, and State officials for infringement of copyright (a) IN GENERAL.—Any State, any instrumen- tality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitu- tion of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any gov- ernmental or nongovernmental entity, for a vio- lation of any of the exclusive rights of a copy- right owner provided by sections 106 through 122, for importing copies of phonorecords in viola- tion of section 602, or for any other violation under this title. (b) REMEDIES.—In a suit described in sub- section (a) for a violation described in that sub- section, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are avail- able for such a violation in a suit against any public or private entity other than a State, in- strumentality of a State, or officer or employee of a State acting in his or her official capacity. Such remedies include impounding and disposi- tion of infringing articles under section 503, ac- tual damages and profits and statutory damages under section 504, costs and attorney’s fees under section 505, and the remedies provided in section 510. (Added Pub. L. 101–553, § 2(a)(2), Nov. 15, 1990, 104 Stat. 2749; amended Pub. L. 106–44, § 1(g)(6), Aug. 5, 1999, 113 Stat. 222; Pub. L. 107–273, div. C, title III, § 13210(4)(C), Nov. 2, 2002, 116 Stat. 1909.) Editorial Notes CONSTITUTIONALITY For information regarding the constitutionality of certain provisions of subsection (a) of this section, see the Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court on the Constitution Anno- tated website, constitution.congress.gov. AMENDMENTS 2002—Subsec. (a). Pub. L. 107–273 substituted ‘‘122’’ for ‘‘121’’. 1999—Subsec. (a). Pub. L. 106–44 substituted ‘‘121’’ for ‘‘119’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective with respect to violations that occur on or after Nov. 15, 1990, see section 3 of Pub. L. 101–553, set out as an Effective Date of 1990 Amendment note under section 501 of this title. § 512. Limitations on liability relating to material online (a) TRANSITORY DIGITAL NETWORK COMMUNICA- TIONS.—A service provider shall not be liable for monetary relief, or, except as provided in sub- section (j), for injunctive or other equitable re- lief, for infringement of copyright by reason of the provider’s transmitting, routing, or pro- viding connections for, material through a sys- tem or network controlled or operated by or for the service provider, or by reason of the inter- mediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if— (1) the transmission of the material was ini- tiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selec- tion of the material by the service provider; (3) the service provider does not select the recipients of the material except as an auto- matic response to the request of another per- son; (4) no copy of the material made by the serv- ice provider in the course of such intermediate or transient storage is maintained on the sys- tem or network in a manner ordinarily acces- sible to anyone other than anticipated recipi- ents, and no such copy is maintained on the system or network in a manner ordinarily ac- cessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of con- nections; and (5) the material is transmitted through the system or network without modification of its content. (b) SYSTEM CACHING.— (1) LIMITATION ON LIABILITY.—A service pro- vider shall not be liable for monetary relief, or, except as provided in subsection (j), for in- junctive or other equitable relief, for infringe- ment of copyright by reason of the inter- mediate and temporary storage of material on a system or network controlled or operated by or for the service provider in a case in which— (A) the material is made available online by a person other than the service provider; (B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subpara- graph (A) at the direction of that other per- son; and (C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the mate- rial is transmitted as described in subpara- graph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met. (2) CONDITIONS.—The conditions referred to in paragraph (1) are that— (A) the material described in paragraph (1) is transmitted to the subsequent users de- scribed in paragraph (1)(C) without modifica- tion to its content from the manner in which the material was transmitted from the per- son described in paragraph (1)(A); Page 175 TITLE 17—COPYRIGHTS § 512 (B) the service provider described in para- graph (1) complies with rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available online in ac- cordance with a generally accepted industry standard data communications protocol for the system or network through which that person makes the material available, except that this subparagraph applies only if those rules are not used by the person described in paragraph (1)(A) to prevent or unreasonably impair the intermediate storage to which this subsection applies; (C) the service provider does not interfere with the ability of technology associated with the material to return to the person de- scribed in paragraph (1)(A) the information that would have been available to that per- son if the material had been obtained by the subsequent users described in paragraph (1)(C) directly from that person, except that this subparagraph applies only if that tech- nology— (i) does not significantly interfere with the performance of the provider’s system or network or with the intermediate stor- age of the material; (ii) is consistent with generally accepted industry standard communications proto- cols; and (iii) does not extract information from the provider’s system or network other than the information that would have been available to the person described in para- graph (1)(A) if the subsequent users had gained access to the material directly from that person; (D) if the person described in paragraph (1)(A) has in effect a condition that a person must meet prior to having access to the ma- terial, such as a condition based on payment of a fee or provision of a password or other information, the service provider permits ac- cess to the stored material in significant part only to users of its system or network that have met those conditions and only in accordance with those conditions; and (E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed in- fringement as described in subsection (c)(3), except that this subparagraph applies only if— (i) the material has previously been re- moved from the originating site or access to it has been disabled, or a court has or- dered that the material be removed from the originating site or that access to the material on the originating site be dis- abled; and (ii) the party giving the notification in- cludes in the notification a statement con- firming that the material has been re- moved from the originating site or access to it has been disabled or that a court has ordered that the material be removed from the originating site or that access to the material on the originating site be dis- abled. (c) INFORMATION RESIDING ON SYSTEMS OR NET- WORKS AT DIRECTION OF USERS.— (1) IN GENERAL.—A service provider shall not be liable for monetary relief, or, except as pro- vided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider— (A)(i) does not have actual knowledge that the material or an activity using the mate- rial on the system or network is infringing; (ii) in the absence of such actual knowl- edge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (B) does not receive a financial benefit di- rectly attributable to the infringing activ- ity, in a case in which the service provider has the right and ability to control such ac- tivity; and (C) upon notification of claimed infringe- ment as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be in- fringing or to be the subject of infringing ac- tivity. (2) DESIGNATED AGENT.—The limitations on liability established in this subsection apply to a service provider only if the service pro- vider has designated an agent to receive noti- fications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the fol- lowing information: (A) the name, address, phone number, and electronic mail address of the agent. (B) other contact information which the Register of Copyrights may deem appro- priate. The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of main- taining the directory. (3) ELEMENTS OF NOTIFICATION.— (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is alleg- edly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single on- line site are covered by a single notifica- tion, a representative list of such works at that site. Page 176 TITLE 17—COPYRIGHTS § 512 (iii) Identification of the material that is claimed to be infringing or to be the sub- ject of infringing activity and that is to be removed or access to which is to be dis- abled, and information reasonably suffi- cient to permit the service provider to lo- cate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the com- plaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is alleg- edly infringed. (B)(i) Subject to clause (ii), a notification from a copyright owner or from a person au- thorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or cir- cumstances from which infringing activity is apparent. (ii) In a case in which the notification that is provided to the service provider’s des- ignated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the serv- ice provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the re- ceipt of notification that substantially com- plies with all the provisions of subparagraph (A). (d) INFORMATION LOCATION TOOLS.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for in- junctive or other equitable relief, for infringe- ment of copyright by reason of the provider re- ferring or linking users to an online location containing infringing material or infringing ac- tivity, by using information location tools, in- cluding a directory, index, reference, pointer, or hypertext link, if the service provider— (1)(A) does not have actual knowledge that the material or activity is infringing; (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (C) upon obtaining such knowledge or aware- ness, acts expeditiously to remove, or disable access to, the material; (2) does not receive a financial benefit di- rectly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (3) upon notification of claimed infringe- ment as described in subsection (c)(3), re- sponds expeditiously to remove, or disable ac- cess to, the material that is claimed to be in- fringing or to be the subject of infringing ac- tivity, except that, for purposes of this para- graph, the information described in subsection (c)(3)(A)(iii) shall be identification of the ref- erence or link, to material or activity claimed to be infringing, that is to be removed or ac- cess to which is to be disabled, and informa- tion reasonably sufficient to permit the serv- ice provider to locate that reference or link. (e) LIMITATION ON LIABILITY OF NONPROFIT EDUCATIONAL INSTITUTIONS.—(1) When a public or other nonprofit institution of higher edu- cation is a service provider, and when a faculty member or graduate student who is an employee of such institution is performing a teaching or research function, for the purposes of sub- sections (a) and (b) such faculty member or graduate student shall be considered to be a per- son other than the institution, and for the pur- poses of subsections (c) and (d) such faculty member’s or graduate student’s knowledge or awareness of his or her infringing activities shall not be attributed to the institution, if— (A) such faculty member’s or graduate stu- dent’s infringing activities do not involve the provision of online access to instructional ma- terials that are or were required or rec- ommended, within the preceding 3-year period, for a course taught at the institution by such faculty member or graduate student; (B) the institution has not, within the pre- ceding 3-year period, received more than two notifications described in subsection (c)(3) of claimed infringement by such faculty member or graduate student, and such notifications of claimed infringement were not actionable under subsection (f); and (C) the institution provides to all users of its system or network informational materials that accurately describe, and promote compli- ance with, the laws of the United States relat- ing to copyright. (2) For the purposes of this subsection, the limitations on injunctive relief contained in subsections (j)(2) and (j)(3), but not those in (j)(1), shall apply. (f) MISREPRESENTATIONS.—Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged in- fringer, by any copyright owner or copyright owner’s authorized licensee, or by a service pro- vider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. (g) REPLACEMENT OF REMOVED OR DISABLED MATERIAL AND LIMITATION ON OTHER LIABILITY.— (1) NO LIABILITY FOR TAKING DOWN GEN- ERALLY.—Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good Page 177 TITLE 17—COPYRIGHTS § 512 faith disabling of access to, or removal of, ma- terial or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing. (2) EXCEPTION.—Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service pro- vider on a system or network controlled or op- erated by or for the service provider that is re- moved, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider— (A) takes reasonable steps promptly to no- tify the subscriber that it has removed or disabled access to the material; (B) upon receipt of a counter notification described in paragraph (3), promptly pro- vides the person who provided the notifica- tion under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed ma- terial or cease disabling access to it in 10 business days; and (C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following re- ceipt of the counter notice, unless its des- ignated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to re- strain the subscriber from engaging in in- fringing activity relating to the material on the service provider’s system or network. (3) CONTENTS OF COUNTER NOTIFICATION.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the fol- lowing: (A) A physical or electronic signature of the subscriber. (B) Identification of the material that has been removed or to which access has been disabled and the location at which the mate- rial appeared before it was removed or ac- cess to it was disabled. (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. (D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial dis- trict in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notifi- cation under subsection (c)(1)(C) or an agent of such person. (4) LIMITATION ON OTHER LIABILITY.—A serv- ice provider’s compliance with paragraph (2) shall not subject the service provider to liabil- ity for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C). (h) SUBPOENA TO IDENTIFY INFRINGER.— (1) REQUEST.—A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in ac- cordance with this subsection. (2) CONTENTS OF REQUEST.—The request may be made by filing with the clerk— (A) a copy of a notification described in subsection (c)(3)(A); (B) a proposed subpoena; and (C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged in- fringer and that such information will only be used for the purpose of protecting rights under this title. (3) CONTENTS OF SUBPOENA.—The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the noti- fication to the extent such information is available to the service provider. (4) BASIS FOR GRANTING SUBPOENA.—If the no- tification filed satisfies the provisions of sub- section (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declara- tion is properly executed, the clerk shall expe- ditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider. (5) ACTIONS OF SERVICE PROVIDER RECEIVING SUBPOENA.—Upon receipt of the issued sub- poena, either accompanying or subsequent to the receipt of a notification described in sub- section (c)(3)(A), the service provider shall ex- peditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, not- withstanding any other provision of law and regardless of whether the service provider re- sponds to the notification. (6) RULES APPLICABLE TO SUBPOENA.—Unless otherwise provided by this section or by appli- cable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the sub- poena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a sub- poena duces tecum. (i) CONDITIONS FOR ELIGIBILITY.— (1) ACCOMMODATION OF TECHNOLOGY.—The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) has adopted and reasonably imple- mented, and informs subscribers and ac- count holders of the service provider’s sys- tem or network of, a policy that provides for the termination in appropriate cir- cumstances of subscribers and account hold- Page 178 TITLE 17—COPYRIGHTS § 512 ers of the service provider’s system or net- work who are repeat infringers; and (B) accommodates and does not interfere with standard technical measures. (2) DEFINITION.—As used in this subsection, the term ‘‘standard technical measures’’ means technical measures that are used by copyright owners to identify or protect copy- righted works and— (A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; (B) are available to any person on reason- able and nondiscriminatory terms; and (C) do not impose substantial costs on service providers or substantial burdens on their systems or networks. (j) INJUNCTIONS.—The following rules shall apply in the case of any application for an in- junction under section 502 against a service pro- vider that is not subject to monetary remedies under this section: (1) SCOPE OF RELIEF.—(A) With respect to conduct other than that which qualifies for the limitation on remedies set forth in sub- section (a), the court may grant injunctive re- lief with respect to a service provider only in one or more of the following forms: (i) An order restraining the service pro- vider from providing access to infringing material or activity residing at a particular online site on the provider’s system or net- work. (ii) An order restraining the service pro- vider from providing access to a subscriber or account holder of the service provider’s system or network who is engaging in in- fringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are speci- fied in the order. (iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted mate- rial specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effec- tive for that purpose. (B) If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms: (i) An order restraining the service pro- vider from providing access to a subscriber or account holder of the service provider’s system or network who is using the pro- vider’s service to engage in infringing activ- ity and is identified in the order, by termi- nating the accounts of the subscriber or ac- count holder that are specified in the order. (ii) An order restraining the service pro- vider from providing access, by taking rea- sonable steps specified in the order to block access, to a specific, identified, online loca- tion outside the United States. (2) CONSIDERATIONS.—The court, in consid- ering the relevant criteria for injunctive relief under applicable law, shall consider— (A) whether such an injunction, either alone or in combination with other such in- junctions issued against the same service provider under this subsection, would sig- nificantly burden either the provider or the operation of the provider’s system or net- work; (B) the magnitude of the harm likely to be suffered by the copyright owner in the dig- ital network environment if steps are not taken to prevent or restrain the infringe- ment; (C) whether implementation of such an in- junction would be technically feasible and effective, and would not interfere with ac- cess to noninfringing material at other on- line locations; and (D) whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available. (3) NOTICE AND EX PARTE ORDERS.—Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to ap- pear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the oper- ation of the service provider’s communica- tions network. (k) DEFINITIONS.— (1) SERVICE PROVIDER.—(A) As used in sub- section (a), the term ‘‘service provider’’ means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received. (B) As used in this section, other than sub- section (a), the term ‘‘service provider’’ means a provider of online services or network ac- cess, or the operator of facilities therefor, and includes an entity described in subparagraph (A). (2) MONETARY RELIEF.—As used in this sec- tion, the term ‘‘monetary relief’’ means dam- ages, costs, attorneys’ fees, and any other form of monetary payment. (l) OTHER DEFENSES NOT AFFECTED.—The fail- ure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense. (m) PROTECTION OF PRIVACY.—Nothing in this section shall be construed to condition the ap- plicability of subsections (a) through (d) on— (1) a service provider monitoring its service or affirmatively seeking facts indicating in- fringing activity, except to the extent con- sistent with a standard technical measure complying with the provisions of subsection (i); or (2) a service provider gaining access to, re- moving, or disabling access to material in cases in which such conduct is prohibited by law. (n) CONSTRUCTION.—Subsections (a), (b), (c), and (d) describe separate and distinct functions Page 179 TITLE 17—COPYRIGHTS § 513 for purposes of applying this section. Whether a service provider qualifies for the limitation on liability in any one of those subsections shall be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualifies for the limita- tions on liability under any other such sub- section. (Added Pub. L. 105–304, title II, § 202(a), Oct. 28, 1998, 112 Stat. 2877; amended Pub. L. 106–44, § 1(d), Aug. 5, 1999, 113 Stat. 222; Pub. L. 111–295, § 3(a), Dec. 9, 2010, 124 Stat. 3180.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (h)(6), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. CODIFICATION Another section 512 was renumbered section 513 of this title. AMENDMENTS 2010—Subsec. (c)(2). Pub. L. 111–295 struck out ‘‘, in both electronic and hard copy formats’’ after ‘‘Inter- net’’ in concluding provisions. 1999—Subsec. (e). Pub. L. 106–44, § 1(d)(1)(A), sub- stituted ‘‘Limitation on Liability of Nonprofit Edu- cational Institutions’’ for ‘‘Limitation on liability of nonprofit educational institutions’’ in heading. Subsec. (e)(2). Pub. L. 106–44, § 1(d)(1)(B), struck out par. heading ‘‘Injunctions’’. Subsec. (j)(3). Pub. L. 106–44, § 1(d)(2), substituted ‘‘Notice and ex parte orders’’ for ‘‘Notice and Ex Parte Orders’’ in heading. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 105–304, title II, § 203, Oct. 28, 1998, 112 Stat. 2886, provided that: ‘‘This title [enacting this section and provisions set out as a note under section 101 of this title] and the amendments made by this title shall take effect on the date of the enactment of this Act [Oct. 28, 1998].’’ § 513. Determination of reasonable license fees for individual proprietors In the case of any performing rights society subject to a consent decree which provides for the determination of reasonable license rates or fees to be charged by the performing rights soci- ety, notwithstanding the provisions of that con- sent decree, an individual proprietor who owns or operates fewer than 7 non-publicly traded es- tablishments in which nondramatic musical works are performed publicly and who claims that any license agreement offered by that per- forming rights society is unreasonable in its li- cense rate or fee as to that individual propri- etor, shall be entitled to determination of a rea- sonable license rate or fee as follows: (1) The individual proprietor may commence such proceeding for determination of a reason- able license rate or fee by filing an application in the applicable district court under para- graph (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 require- ments 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 consent decree 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 magistrate judge appointed by such judge. Should that consent decree provide 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 or determined 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 pro- ceeding, the individual proprietor shall have the right to perform publicly the copyrighted musical compositions in the repertoire of the performing rights society by paying an in- terim license rate or fee into an interest bear- ing 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 par- ties. (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 consent decree governing the performing rights society. Such proceeding, including such review, shall be concluded within 6 months after its commencement. (7) Any such final determination shall be binding only as to the individual proprietor commencing the proceeding, and shall not be applicable to any other proprietor or any other performing rights society, and the per- forming rights society shall be relieved of any obligation of nondiscrimination among simi- larly situated music users that may be im- posed by the consent decree governing its op- erations. (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 agree- ment with respect to any one performing rights society. (9) For purposes of this section, the term ‘‘industry rate’’ means the license fee a per- forming rights society has agreed to with, or which has been determined by the court for, a significant segment of the music user industry to which the individual proprietor belongs.