17 U.S.C. § 910 — Enforcement of exclusive rights

Page 206 TITLE 17—COPYRIGHTS § 909 (c) The application for registration of a mask work shall be made on a form prescribed by the Register of Copyrights. Such form may require any information regarded by the Register as bearing upon the preparation or identification of the mask work, the existence or duration of pro- tection of the mask work under this chapter, or ownership of the mask work. The application shall be accompanied by the fee set pursuant to subsection (d) and the identifying material spec- ified pursuant to such subsection. (d) The Register of Copyrights shall by regula- tion set reasonable fees for the filing of applica- tions to register claims of protection in mask works under this chapter, and for other services relating to the administration of this chapter or the rights under this chapter, taking into con- sideration the cost of providing those services, the benefits of a public record, and statutory fee schedules under this title. The Register shall also specify the identifying material to be de- posited in connection with the claim for reg- istration. (e) If the Register of Copyrights, after exam- ining an application for registration, deter- mines, in accordance with the provisions of this chapter, that the application relates to a mask work which is entitled to protection under this chapter, then the Register shall register the claim of protection and issue to the applicant a certificate of registration of the claim of protec- tion under the seal of the Copyright Office. The effective date of registration of a claim of pro- tection shall be the date on which an applica- tion, deposit of identifying material, and fee, which are determined by the Register of Copy- rights or by a court of competent jurisdiction to be acceptable for registration of the claim, have all been received in the Copyright Office. (f) In any action for infringement under this chapter, the certificate of registration of a mask work shall constitute prima facie evidence (1) of the facts stated in the certificate, and (2) that the applicant issued the certificate has met the requirements of this chapter, and the regula- tions issued under this chapter, with respect to the registration of claims. (g) Any applicant for registration under this section who is dissatisfied with the refusal of the Register of Copyrights to issue a certificate of registration under this section may seek judi- cial review of that refusal by bringing an action for such review in an appropriate United States district court not later than sixty days after the refusal. The provisions of chapter 7 of title 5 shall apply to such judicial review. The failure of the Register of Copyrights to issue a certifi- cate of registration within four months after an application for registration is filed shall be deemed to be a refusal to issue a certificate of registration for purposes of this subsection and section 910(b)(2), except that, upon a showing of good cause, the district court may shorten such four-month period. (Added Pub. L. 98–620, title III, § 302, Nov. 8, 1984, 98 Stat. 3351.) § 909. Mask work notice (a) The owner of a mask work provided protec- tion under this chapter may affix notice to the mask work, and to masks and semiconductor chip products embodying the mask work, in such manner and location as to give reasonable notice of such protection. The Register of Copy- rights shall prescribe by regulation, as exam- ples, specific methods of affixation and positions of notice for purposes of this section, but these specifications shall not be considered exhaus- tive. The affixation of such notice is not a condi- tion of protection under this chapter, but shall constitute prima facie evidence of notice of pro- tection. (b) The notice referred to in subsection (a) shall consist of— (1) the words ‘‘mask work’’, the symbol *M*, or the symbol M (the letter M in a circle); and (2) the name of the owner or owners of the mask work or an abbreviation by which the name is recognized or is generally known. (Added Pub. L. 98–620, title III, § 302, Nov. 8, 1984, 98 Stat. 3352; amended Pub. L. 105–80, § 12(a)(22), Nov. 13, 1997, 111 Stat. 1535.) Editorial Notes AMENDMENTS 1997—Subsec. (b)(1). Pub. L. 105–80 substituted ‘‘ ‘mask work’, the symbol’’ for ‘‘ ‘mask force’, the sumbol’’. § 910. Enforcement of exclusive rights (a) Except as otherwise provided in this chap- ter, any person who violates any of the exclusive rights of the owner of a mask work under this chapter, by conduct in or affecting commerce, shall be liable as an infringer of such rights. As used in this subsection, the term ‘‘any person’’ includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such in- strumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity. (b)(1) The owner of a mask work protected under this chapter, or the exclusive licensee of all rights under this chapter with respect to the mask work, shall, after a certificate of registra- tion of a claim of protection in that mask work has been issued under section 908, be entitled to institute a civil action for any infringement with respect to the mask work which is com- mitted after the commencement of protection of the mask work under section 904(a). (2) In any case in which an application for reg- istration of a claim of protection in a mask work and the required deposit of identifying ma- terial and fee have been received in the Copy- right Office in proper form and registration of the mask work has been refused, the applicant is entitled to institute a civil action for infringe- ment under this chapter with respect to the mask work if notice of the action, together with a copy of the complaint, is served on the Reg- ister of Copyrights, in accordance with the Fed- eral Rules of Civil Procedure. The Register may, at his or her option, become a party to the ac- tion with respect to the issue of whether the claim of protection is eligible for registration by entering an appearance within sixty days after Page 207 TITLE 17—COPYRIGHTS § 911 such service, but the failure of the Register to become a party to the action shall not deprive the court of jurisdiction to determine that issue. (c)(1) The Secretary of the Treasury and the United States Postal Service shall separately or jointly issue regulations for the enforcement of the rights set forth in section 905 with respect to importation. These regulations may require, as a condition for the exclusion of articles from the United States, that the person seeking exclusion take any one or more of the following actions: (A) Obtain a court order enjoining, or an order of the International Trade Commission under section 337 of the Tariff Act of 1930 ex- cluding, importation of the articles. (B) Furnish proof that the mask work in- volved is protected under this chapter and that the importation of the articles would in- fringe the rights in the mask work under this chapter. (C) Post a surety bond for any injury that may result if the detention or exclusion of the articles proves to be unjustified. (2) Articles imported in violation of the rights set forth in section 905 are subject to seizure and forfeiture in the same manner as property im- ported in violation of the customs laws. Any such forfeited articles shall be destroyed as di- rected by the Secretary of the Treasury or the court, as the case may be, except that the arti- cles may be returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury that the importer had no reasonable grounds for believing that his or her acts constituted a violation of the law. (Added Pub. L. 98–620, title III, § 302, Nov. 8, 1984, 98 Stat. 3352; amended Pub. L. 101–553, § 2(b)(1), Nov. 15, 1990, 104 Stat. 2750; Pub. L. 105–80, § 12(a)(23), Nov. 13, 1997, 111 Stat. 1535.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (b)(2), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. Section 337 of the Tariff Act of 1930, referred to in subsec. (c)(1)(A), is classified to section 1337 of Title 19, Customs Duties. AMENDMENTS 1997—Subsec. (a). Pub. L. 105–80 substituted ‘‘As used’’ for ‘‘as used’’ in second sentence. 1990—Subsec. (a). Pub. L. 101–553 inserted sentences at end defining ‘‘any person’’ and providing that any State and any instrumentality, officer, or employee be subject to the provisions of this chapter in the same manner and to the same extent as any nongovern- mental entity. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–553 effective with respect to violations that occur on or after Nov. 15, 1990, see section 3 of Pub. L. 101–553, set out as a note under sec- tion 501 of this title. § 911. Civil actions (a) Any court having jurisdiction of a civil ac- tion arising under this chapter may grant tem- porary restraining orders, preliminary injunc- tions, and permanent injunctions on such terms as the court may deem reasonable to prevent or restrain infringement of the exclusive rights in a mask work under this chapter. (b) Upon finding an infringer liable, to a per- son entitled under section 910(b)(1) to institute a civil action, for an infringement of any exclu- sive right under this chapter, the court shall award such person actual damages suffered by the person as a result of the infringement. The court shall also award such person the infring- er’s profits that are attributable to the infringe- ment and are not taken into account in com- puting the award of actual damages. In estab- lishing the infringer’s profits, such person is re- quired to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the ele- ments of profit attributable to factors other than the mask work. (c) At any time before final judgment is ren- dered, a person entitled to institute a civil ac- tion for infringement may elect, instead of ac- tual damages and profits as provided by sub- section (b), an award of statutory damages for all infringements involved in the action, with respect to any one mask work for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and sev- erally, in an amount not more than $250,000 as the court considers just. (d) An action for infringement under this chapter shall be barred unless the action is com- menced within three years after the claim ac- crues. (e)(1) At any time while an action for infringe- ment of the exclusive rights in a mask work under this chapter is pending, the court may order the impounding, on such terms as it may deem reasonable, of all semiconductor chip products, and any drawings, tapes, masks, or other products by means of which such products may be reproduced, that are claimed to have been made, imported, or used in violation of those exclusive rights. Insofar as practicable, applications for orders under this paragraph shall be heard and determined in the same man- ner as an application for a temporary restrain- ing order or preliminary injunction. (2) As part of a final judgment or decree, the court may order the destruction or other dis- position of any infringing semiconductor chip products, and any masks, tapes, or other articles by means of which such products may be repro- duced. (f) In any civil action arising under this chap- ter, the court in its discretion may allow the re- covery of full costs, including reasonable attor- neys’ fees, to the prevailing party. (g)(1) Any State, any instrumentality 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 Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of the owner of a mask work under this chapter, or for any other viola- tion under this chapter.