[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2391 Reported in Senate (RS)]






                                                       Calendar No. 781
108th CONGRESS
  2d Session
                                H. R. 2391


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 11, 2004

  Received; read twice and referred to the Committee on the Judiciary

                            October 7, 2004

                Reported by Mr. Hatch, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 AN ACT


 
To amend title 35, United States Code, to promote cooperative research 
  involving universities, the public sector, and private enterprises.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Cooperative Research and 
Technology Enhancement (CREATE) Act of 2004''.</DELETED>

<DELETED>SEC. 2. COLLABORATIVE EFFORTS ON CLAIMED INVENTIONS.</DELETED>

<DELETED>    Section 103(c) of title 35, United States Code, is amended 
to read as follows:</DELETED>
<DELETED>    ``(c)(1) Subject matter developed by another person, which 
qualifies as prior art only under one or more of subsections (e), (f), 
and (g) of section 102 of this title, shall not preclude patentability 
under this section where the subject matter and the claimed invention 
were, at the time the claimed invention was made, owned by the same 
person or subject to an obligation of assignment to the same 
person.</DELETED>
<DELETED>    ``(2) For purposes of this subsection, subject matter 
developed by another person and a claimed invention shall be deemed to 
have been owned by the same person or subject to an obligation of 
assignment to the same person if--</DELETED>
        <DELETED>    ``(A) the claimed invention was made by or on 
        behalf of parties to a joint research agreement that was in 
        effect on or before the date the claimed invention was 
        made;</DELETED>
        <DELETED>    ``(B) the claimed invention was made as a result 
        of activities undertaken within the scope of the joint research 
        agreement; and</DELETED>
        <DELETED>    ``(C) the application for patent for the claimed 
        invention discloses or is amended to disclose the names of the 
        parties to the joint research agreement.</DELETED>
<DELETED>    ``(3) For purposes of paragraph (2), the term `joint 
research agreement' means a written contract, grant, or cooperative 
agreement entered into by two or more persons or entities for the 
performance of experimental, developmental, or research work in the 
field of the claimed invention.''.</DELETED>

<DELETED>SEC. 3. EFFECTIVE DATE.</DELETED>

<DELETED>    (a) In General.--The amendments made by this Act shall 
apply to any patent granted on or after the date of the enactment of 
this Act.</DELETED>
<DELETED>    (b) Special Rule.--The amendments made by this Act shall 
not affect any final decision of a court or the United States Patent 
and Trademark Office rendered before the date of the enactment of this 
Act, and shall not affect the right of any party in any action pending 
before the United States Patent and Trademark Office or a court on the 
date of the enactment of this Act to have that party's rights 
determined on the basis of the provisions of title 35, United States 
Code, in effect on the day before the date of the enactment of this 
Act.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Intellectual Property Protection Act 
of 2004''.

        TITLE I--COOPERATIVE RESEARCH AND TECHNOLOGY ENHANCEMENT

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Cooperative Research and 
Technology Enhancement (CREATE) Act of 2004''.

SEC. 102. COLLABORATIVE EFFORTS ON CLAIMED INVENTIONS.

    Section 103(c) of title 35, United States Code, is amended to read 
as follows:
    ``(c)(1) Subject matter developed by another person, which 
qualifies as prior art only under one or more of subsections (e), (f), 
and (g) of section 102 of this title, shall not preclude patentability 
under this section where the subject matter and the claimed invention 
were, at the time the claimed invention was made, owned by the same 
person or subject to an obligation of assignment to the same person.
    ``(2) For purposes of this subsection, subject matter developed by 
another person and a claimed invention shall be deemed to have been 
owned by the same person or subject to an obligation of assignment to 
the same person if--
            ``(A) the claimed invention was made by or on behalf of 
        parties to a joint research agreement that was in effect on or 
        before the date the claimed invention was made;
            ``(B) the claimed invention was made as a result of 
        activities undertaken within the scope of the joint research 
        agreement; and
            ``(C) the application for patent for the claimed invention 
        discloses or is amended to disclose the names of the parties to 
        the joint research agreement.
    ``(3) For purposes of paragraph (2), the term `joint research 
agreement' means a written contract, grant, or cooperative agreement 
entered into by two or more persons or entities for the performance of 
experimental, developmental, or research work in the field of the 
claimed invention.''.

SEC. 103. EFFECTIVE DATE.

    (a) In General.--The amendments made by this title shall apply to 
any patent granted on or after the date of the enactment of this Act.
    (b) Special Rule.--The amendments made by this title shall not 
affect any final decision of a court or the United States Patent and 
Trademark Office rendered before the date of the enactment of this Act, 
and shall not affect the right of any party in any action pending 
before the United States Patent and Trademark Office or a court on the 
date of the enactment of this Act to have that party's rights 
determined on the basis of the provisions of title 35, United States 
Code, in effect on the day before the date of the enactment of this 
Act.

                TITLE II--PIRACY DETERRENCE IN EDUCATION

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Piracy Deterrence and Education 
Act of 2004''.

SEC. 202. FINDINGS.

    Congress finds as follows:
            (1) The Internet, while changing the way our society 
        communicates, has also changed the nature of many crimes, 
        including the theft of intellectual property.
            (2) Trafficking in infringing copyrighted works through 
        increasingly sophisticated electronic means, including peer-to-
        peer file trading networks, Internet chat rooms, and news 
        groups, threatens lost jobs, lost income for creators, lower 
        tax revenue, and higher prices for honest purchasers.
            (3) The most popular peer-to-peer file trading software 
        programs have been downloaded by computer users over 
        600,000,000 times. At any one time there are over 3,000,000 
        users simultaneously using just one of these services. Each 
        month, on average, over 2,300,000,000 digital-media files are 
transferred among users of peer-to-peer systems.
            (4) Many computer users simply believe that they will not 
        be caught or prosecuted for their conduct.
            (5) The security and privacy threats posed by certain peer-
        to-peer networks extend beyond users inadvertently enabling a 
        hacker to access files. Millions of copies of one of the most 
        popular peer-to-peer networks contain software that could allow 
        an independent company to take over portions of users' 
        computers and Internet connections and has the capacity to keep 
        track of users' online habits.
            (6) In light of these considerations, Federal law 
        enforcement agencies should actively pursue criminals who steal 
        the copyrighted works of others, and prevent such activity 
        through enforcement and awareness. The public should be 
        educated about the security and privacy risks associated with 
        being connected to certain peer-to-peer networks.

SEC. 203. VOLUNTARY PROGRAM OF DEPARTMENT OF JUSTICE.

    (a) Voluntary Program.--The Attorney General is authorized to 
establish a program under which the Department of Justice, in cases 
where persons who are subscribers of Internet service providers appear 
to the Department of Justice to be engaging in copyright infringing 
conduct in the course of using such Internet service, would send to the 
Internet service providers warning letters that warn such persons of 
the penalties for such copyright infringement. The Internet service 
providers may forward the warning letters to such persons.
    (b) Limitations on Program.--
            (1) Extent and length of program.--The program under 
        subsection (a) shall terminate at the end of the 18-month 
        period beginning on the date of the enactment of this Act and 
        shall be limited to not more than 10,000 warning letters.
            (2) Privacy protections.--No Internet service provider that 
        receives a warning letter from the Department of Justice under 
        subsection (a) may disclose to the Department any identifying 
        information about the subscriber that is the subject of the 
        warning letter except pursuant to court order or other 
        applicable legal process that requires such disclosure.
    (c) Reimbursement of Internet Service Providers.--The Department of 
Justice shall reimburse Internet service providers for all reasonable 
direct costs incurred by such service providers in identifying the 
proper recipients of the warning letters under subsection (a) and 
forwarding the letters.
    (d) Reports to Congress.--The Attorney General shall submit to 
Congress a report on the program established under subsection (a) both 
at the time the program is initiated and at the conclusion of the 
program.
    (e) Inadmissibility of Evidence.--The fact that an Internet service 
provider participated in the program under subsection (a), received a 
warning letter from the Department of Justice, was aware of the 
contents of the warning letter, or forwarded the warning letter to a 
subscriber, shall not be admissible in any legal proceeding brought 
against the Internet service provider.
    (f) Construction.--Nothing in this section shall be construed to 
affect the ability of a court to consider, in a legal proceeding 
brought against an Internet service provider, notifications of claimed 
infringement as described in section 512(c)(3) of title 17, United 
States Code, or any other relevant evidence, other than that described 
in subsection (e).

SEC. 204. DESIGNATION AND TRAINING OF AGENTS IN COMPUTER HACKING AND 
              INTELLECTUAL PROPERTY UNITS.

    (a) Designation of Agents in CHIPs Units.--The Attorney General 
shall ensure that any unit in the Department of Justice responsible for 
investigating computer hacking or responsible for investigating 
intellectual property crimes is assigned at least one agent to support 
such unit for the purpose of investigating crimes relating to the theft 
of intellectual property.
    (b) Training.--The Attorney General shall ensure that each agent 
assigned under subsection (a) has received training in the 
investigation and enforcement of intellectual property crimes.

SEC. 205. EDUCATION PROGRAM.

    (a) Establishment.--There shall be established within the Office of 
the Associate Attorney General of the United States an Internet Use 
Education Program.
    (b) Purpose.--The purpose of the Internet Use Education Program 
shall be to--
            (1) educate the general public concerning the value of 
        copyrighted works and the effects of the theft of such works on 
        those who create them; and
            (2) educate the general public concerning the privacy, 
        security, and other risks of using the Internet to obtain 
        illegal copies of copyrighted works.
    (c) Sector Specific Materials.--The Internet Use Educational 
Program shall, to the extent appropriate, develop materials appropriate 
to Internet users in different sectors of the general public where 
criminal copyright infringement is a concern. The Attorney General 
shall consult with appropriate interested parties in developing such 
sector-specific materials.
    (d) Consultations.--The Attorney General shall consult with the 
Register of Copyrights and the Secretary of Commerce in developing the 
Internet Use Education Program under this section.
    (e) Prohibition on Use of Certain Funds.--The program created under 
this section shall not use funds or resources of the Department of 
Justice allocated for criminal investigation or prosecution.
    (f) Additional Prohibition on the Use of Funds.--The program 
created under this section shall not use any funds or resources of the 
Department of Justice allocated for the Civil Rights Division of the 
Department, including any funds allocated for the enforcement of civil 
rights or the Voting Rights Act of 1965.

SEC. 206. ACTIONS BY THE GOVERNMENT OF THE UNITED STATES.

    Section 411(a) of title 17, United States Code, is amended in the 
first sentence by striking ``Except for'' and inserting ``Except for an 
action brought by the Government of the United States or by any agency 
or instrumentality thereof, or'' .

SEC. 207. AUTHORIZED APPROPRIATIONS.

    There are authorized to be appropriated to the Department of 
Justice for fiscal year 2005 not less than $15,000,000 for the 
investigation and prosecution of violations of title 17, United States 
Code.

SEC. 208. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING OF MOTION 
              PICTURES IN A MOTION PICTURE EXHIBITION FACILITY.

    (a) In General.--Chapter 113 of title 18, United States Code, is 
amended by adding after section 2319A the following new section:
``Sec. 2319B. Unauthorized recording of motion pictures in a motion 
              picture exhibition facility
    ``(a) Offense.--Any person who, without the authorization of the 
copyright owner, knowingly uses or attempts to use an audiovisual 
recording device to transmit or make a copy of a motion picture or 
other audiovisual work protected under title 17, or any part thereof, 
from a performance of such work in a motion picture exhibition 
facility, shall--
            ``(1) be imprisoned for not more than 3 years, fined under 
        this title, or both; or
            ``(2) if the offense is a second or subsequent offense, be 
        imprisoned for no more than 6 years, fined under this title, or 
        both.
The possession by a person of an audiovisual recording device in a 
motion picture exhibition facility may be considered as evidence in any 
proceeding to determine whether that person committed an offense under 
this subsection, but shall not, by itself, be sufficient to support a 
conviction of that person for such offense.
    ``(b) Forfeiture and Destruction.--When a person is convicted of an 
offense under subsection (a), the court in its judgment of conviction 
shall, in addition to any penalty provided, order the forfeiture and 
destruction or other disposition of all unauthorized copies of motion 
pictures or other audiovisual works protected under title 17, or parts 
thereof, and any audiovisual recording devices or other equipment used 
in connection with the offense.
    ``(c) Authorized Activities.--This section does not prevent any 
lawfully authorized investigative, protective, or intelligence activity 
by an officer, agent, or employee of the United States, a State, or a 
political subdivision of a State, or by a person acting under a 
contract with the United States, a State, or a political subdivision of 
a State.
    ``(d) Immunity for Theaters and Authorized Persons.--With 
reasonable cause, the owner or lessee of a motion picture facility 
where a motion picture is being exhibited, the authorized agent or 
employee of such owner or lessee, the licensor of the motion picture 
being exhibited, or the agent or employee of such licensor--
            ``(1) may detain, in a reasonable manner and for a 
        reasonable time, any person suspected of committing an offense 
        under this section for the purpose of questioning that person 
        or summoning a law enforcement officer; and
            ``(2) shall not be held liable in any civil or criminal 
        action by reason of a detention under paragraph (1).
    ``(e) Victim Impact Statement.--
            ``(1) In general.--During the preparation of the 
        presentence report under rule 32(c) of the Federal Rules of 
        Criminal Procedure, victims of an offense under this section 
        shall be permitted to submit to the probation officer a victim 
        impact statement that identifies the victim of the offense and 
        the extent and scope of the injury and loss suffered by the 
        victim, including the estimated economic impact of the offense 
        on that victim.
            ``(2) Contents.--A victim impact statement submitted under 
        this subsection shall include--
                    ``(A) producers and sellers of legitimate works 
                affected by conduct involved in the offense;
                    ``(B) holders of intellectual property rights in 
                the works described in subparagraph (A); and
                    ``(C) the legal representatives of such producers, 
                sellers, and holders.
    ``(f) Definitions.--In this section:
            ``(1) Audiovisual work, copy, etc.--The terms `audiovisual 
        work', `copy', `copyright owner', `motion picture', and 
        `transmit' have, respectively, the meanings given those terms 
        in section 101 of title 17.
            ``(2) Audiovisual recording device.--The term `audiovisual 
        recording device' means a digital or analog photographic or 
        video camera, or any other technology or device capable of 
        enabling the recording or transmission of a copyrighted motion 
        picture or other audiovisual work, or any part thereof, 
        regardless of whether audiovisual recording is the sole or 
        primary purpose of the device.
            ``(3) Motion picture exhibition facility.--The term `motion 
        picture exhibition facility' means a movie theater, screening 
        room, or other venue that is being used primarily for the 
        exhibition of a copyrighted motion picture, if such exhibition 
        is open to the public or is made to an assembled group of 
        viewers outside of a normal circle of a family and its social 
        acquaintances.
    ``(g) State Law Not Preempted.--Nothing in this section may be 
construed to annul or limit any rights or remedies under the laws of 
any State.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 113 of title 18, United States Code, is amended by inserting 
after the item relating to section 2319A the following:

``2319B. Unauthorized recording of motion pictures in a motion picture 
                            exhibition facility.''.

SEC. 209. SENSE OF CONGRESS ON NEED TO TAKE STEPS TO PREVENT ILLEGAL 
              ACTIVITY ON PEER-TO-PEER SERVICES.

    (a) Findings.--Congress finds as follows:
            (1) The most popular publicly accessible peer-to-peer file 
        sharing software programs combined have been downloaded 
        worldwide over 600,000,000 times.
            (2) The vast majority of software products, including peer-
        to-peer technology, do not pose an inherent risk. Responsible 
        persons making software products should be encouraged and 
        commended for the due diligence and reasonable care they take 
        including by providing instructions, relevant information in 
        the documentation, disseminating patches, updates, and other 
        appropriate modifications to the software.
            (3) Massive volumes of illegal activity, including the 
        distribution of child pornography, viruses, and confidential 
personal information, and copyright infringement occur on publicly 
accessible peer-to-peer file sharing services every day. Some publicly 
accessible peer-to-peer file sharing services expose consumers, 
particularly children, to serious risks, including legal liability, 
loss of privacy, threats to computer security, and exposure to illegal 
and inappropriate material.
            (4) Several studies and reports demonstrate that 
        pornography, including child pornography, is prevalent on 
        publicly available peer-to-peer file sharing services, and 
        children are regularly exposed to pornography when using such 
        peer-to-peer file sharing services.
            (5) The full potential of peer-to-peer technology to 
        benefit consumers has yet to be realized and will not be 
        achieved until these problems are adequately addressed.
            (6) To date, the businesses that run publicly accessible 
        file-sharing services have refused or failed to voluntarily and 
        sufficiently address these problems.
            (7) Many users of publicly available peer-to-peer file-
        sharing services are drawn to these systems by the lure of 
        obtaining ``free'' music and movies.
            (8) While some users use parental controls to protect 
        children from pornography available on the Internet and search 
        engines, not all such controls work on publicly accessible 
        peer-to-peer networks.
            (9) Businesses that run publicly accessible peer-to-peer 
        file sharing services have openly acknowledged, and numerous 
        studies and reports have established, that these services 
        facilitate and profit from massive amounts of copyright 
        infringement, causing enormous damage to the economic well-
        being of the copyright industries whose works are being 
        illegally ``shared'' and downloaded.
            (10) The legitimate digital music marketplace offers 
        consumers a wide and growing array of choices for obtaining 
        music legally, without exposure to the risks posed by publicly 
        accessible peer-to-peer file sharing services.
            (11) The Federal Trade Commission issued a Consumer Alert 
        in July of 2003 warning consumers that some file-sharing 
        services contain damaging viruses and worms and, without the 
        computer user's knowledge or consent, install spyware to 
        monitor a user's browsing habits and send data to third parties 
        or automatically open network connections.
            (12) Publicly available peer-to-peer file-sharing services 
        can and should adopt reasonable business practices and use 
        technology in the marketplace to address the existing risks 
        posed to consumers by their services and facilitate the 
        legitimate use of peer-to-peer file sharing technology and 
        software.
    (b) Sense of Congress.--It is the sense of Congress that--
            (1) responsible software developers should be commended, 
        recognized, and encouraged for their efforts to protect 
        consumers;
            (2) currently the level of ongoing and persistent illegal 
        and dangerous activity on publicly accessible peer-to-peer file 
        sharing services is harmful to consumers, minors, and the 
        economy; and
            (3) therefore, Congress and the executive branch should 
        consider all appropriate measures to protect consumers and 
        children, and prevent such illegal activity.

SEC. 210. ENHANCEMENT OF CRIMINAL COPYRIGHT INFRINGEMENT.

    (a) Criminal Infringement.--Section 506 of title 17, United States 
Code, is amended--
            (1) by amending subsection (a) to read as follows:
    ``(a) Criminal Infringement.--Any person who--
            ``(1) infringes a copyright willfully and for purposes of 
        commercial advantage or private financial gain,
            ``(2) infringes a copyright willfully by the reproduction 
        or distribution, including by the offering for distribution to 
        the public by electronic means, during any 180-day period, of 1 
        or more copies or phonorecords of 1 or more copyrighted works, 
        which have a total retail value of more than $1,000, or
            ``(3) infringes a copyright by the knowing distribution, 
        including by the offering for distribution to the public by 
        electronic means, with reckless disregard of the risk of 
        further infringement, during any 180-day period, of--
                    ``(A) 1,000 or more copies or phonorecords of 1 or 
                more copyrighted works,
                    ``(B) 1 or more copies or phonorecords of 1 or more 
                copyrighted works with a total retail value of more 
                than $10,000, or
                    ``(C) 1 or more copies or phonorecords of 1 or more 
                copyrighted pre-release works,
shall be punished as provided under section 2319 of title 18. For 
purposes of this subsection, evidence of reproduction or distribution 
of a copyrighted work, by itself, shall not be sufficient to establish 
the necessary level of intent under this subsection.''; and
            (2) by adding at the end the following:
    ``(g) Limitation on Liability of Service Providers.--No legal 
entity shall be liable for a violation of subsection (a)(3) by reason 
of performing any function described in subsection (a), (b), (c), or 
(d) of section 512 if such legal entity would not be liable for 
monetary relief under section 512 by reason of performing such 
function. Except for purposes of determining whether an entity 
qualifies for the limitation on liability under subsection (a)(3) of 
this section, the legal conclusion of whether an entity qualifies for a 
limitation on liability under section 512 shall not be considered in a 
judicial determination of whether the entity violates subsection (a) of 
this section.
    ``(h) Definitions.--In this section:
            ``(1) Pre-release work.--The term `pre-release work' refers 
        to a work protected under this title which has a commercial and 
        economic value and which, at the time of the act of 
        infringement that is the basis for the offense under subsection 
        (a)(3), the defendant knew or should have known had not yet 
        been made available by the copyright owner to individual 
        members of the general public in copies or phonorecords for 
        sale, license, or rental.
            ``(2) Retail value.--The `retail value' of a copyrighted 
        work is the retail price of that work in the market in which it 
        is sold. In the case of an infringement of a copyright by 
        distribution, if the retail price does not adequately reflect 
        the economic value of the infringement, then the retail value 
        may be determined using other factors, including but not 
        limited to suggested retail price, wholesale price, replacement 
        cost of the item, licensing, or distribution-related fees.''.
    (b) Penalties.--Section 2319 of title 18, United States Code, is 
amended--
            (1) by redesignating subsections (d) and (e) as subsections 
        (e) and (f), respectively;
            (2) by inserting after subsection (c) the following:
    ``(d) Any person who commits an offense under section 506(a)(3) of 
title 17--
            ``(1) shall be imprisoned not more than 3 years, or fined 
        in the amount set forth in this title, or both, or, if the 
        offense was committed for purposes of commercial advantage or 
        private financial gain, imprisoned for not more than 5 years, 
        or fined in the amount set forth in this title, or both; and
            ``(2) shall, if the offense is a second or subsequent 
        offense under paragraph (1), be imprisoned not more than 6 
        years, or fined in the amount set forth in this title, or both, 
        or, if the offense was committed for purposes of commercial 
        advantage or private financial gain, imprisoned for not more 
        than 10 years, or fined in the amount set forth in this title, 
        or both.''; and
            (3) in subsection (f), as so redesignated--
                    (A) in paragraph (1), by striking ``and'' after the 
                semicolon;
                    (B) in paragraph (2), by striking the period and 
                inserting ``; and''; and
                    (C) by adding at the end the following:
            ``(3) the term `financial gain' has the meaning given that 
        term in section 101 (relating to definitions) of title 17.''.
    (c) Civil Remedies for Infringement of a Work Being Prepared for 
Commercial Distribution.--
            (1) Preregistration.--Section 408 of title 17, United 
        States Code, is amended by adding at the end the following:
    ``(f) Preregistration of Works Being Prepared for Commercial 
Distribution.--
            ``(1) Rulemaking.--Not later than 180 days after the date 
        of enactment of this subsection, the Register of Copyrights 
        shall issue regulations to establish procedures for 
        preregistration of a work that is being prepared for commercial 
        distribution and has not been published.
            ``(2) Class of works.--The regulations established under 
        paragraph (1) shall permit preregistration for any work that is 
        in a class of works that the Register determines has had a 
        history of infringement prior to authorized commercial 
        distribution.
            ``(3) Application for Registration.--Not later than 3 
        months after the first publication of the work, the applicant 
        shall submit to the Copyright Office--
                    ``(A) an application for registration of the work;
                    ``(B) a deposit; and
                    ``(C) the applicable fee.
            ``(4) Effect of untimely application.--An action for 
        infringement under this chapter shall be dismissed, and no 
        award of statutory damages or attorney fees shall be made for a 
        preregistered work, if the items described in paragraph (3) are 
        not submitted to the Copyright Office in proper form within the 
        earlier of--
                    ``(A) 3 months after the first publication of the 
                work; or
                    ``(B) 1 month after the copyright owner has learned 
                of the infringement.''.
            (2) Infringement actions.--Section 411(a) of title 17, 
        United States Code, is amended by inserting ``preregistration 
        or'' after ``shall be instituted until''.
            (3) Exclusion.--Section 412 of title 17, United States 
        Code, is amended by inserting ``, an action for infringement of 
        the copyright of a work that has been preregistered under 
        section 408(f) before the commencement of the infringement,'' 
        after ``section 106A(a)''.

SEC. 211. AMENDMENT OF FEDERAL SENTENCING GUIDELINES REGARDING THE 
              INFRINGEMENT OF COPYRIGHTED WORKS AND RELATED CRIMES.

    (a) Amendment to the Sentencing Guidelines.--Pursuant to its 
authority under section 994 of title 28, United States Code, and in 
accordance with this section, the United States Sentencing Commission 
shall review and, if appropriate, amend the sentencing guidelines and 
policy statements applicable to persons convicted of intellectual 
property rights crimes, including sections 2318, 2319, 2319A, 2319B, 
2320 of title 18, United States Code, and sections 506, 1201, and 1202 
of title 17, United States Code.
    (b) Factors.--In carrying out this section, the Sentencing 
Commission shall--
            (1) take all appropriate measures to ensure that the 
        sentencing guidelines and policy statements applicable to the 
        offenses described in subsection (a) are sufficiently stringent 
        to deter and adequately reflect the nature of such offenses;
            (2) consider whether to provide a sentencing enhancement 
        for those convicted of the offenses described in subsection (a) 
        when the conduct involves the display, performance, 
        publication, reproduction, or distribution of a copyrighted 
        work before the time when the copyright owner has authorized 
        the display, performance, publication, reproduction, or 
        distribution of the original work, whether in the media format 
        used by the infringing good or in any other media format;
            (3) consider whether the definition of ``uploading'' 
        contained in Application Note 3 to Guideline 2B5.3 is adequate 
        to address the loss attributable to people broadly distributing 
        copyrighted works over the Internet without authorization; and
            (4) consider whether the sentencing guidelines and policy 
        statements applicable to the offenses described in subsection 
        (a) adequately reflect any harm to victims from infringement in 
        circumstances where law enforcement cannot determine how many 
times copyrighted material is reproduced or distributed.
    (c) Promulgation.--The Commission may promulgate the guidelines or 
amendments under this section in accordance with the procedures set 
forth in section 21(a) of the Sentencing Act of 1987, as though the 
authority under that Act had not expired.

SEC. 212. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO 
              CONTENT IN MOTION PICTURES.

    (a) Short Title.--This section may be cited as the ``Family Movie 
Act of 2004''.
    (b) Exemption From Copyright and Trademark Infringement for 
Skipping of Audio or Video Content of Motion Pictures.--Section 110 of 
title 17, United States Code, is amended--
            (1) in paragraph (9), by striking ``and'' after the 
        semicolon at the end;
            (2) in paragraph (10), by striking the period at the end 
        and inserting ``; and'';
            (3) by inserting after paragraph (10) the following:
            ``(11) the making imperceptible, by or at the direction of 
        a member of a private household, of limited portions of audio 
        or video content of a motion picture, during a performance in 
        or transmitted to that household for private home viewing, from 
        an authorized copy of the motion picture, or the creation or 
        provision of a computer program or other technology that 
        enables such making imperceptible and that is designed and 
        marketed for such use at the direction of a member of a private 
        household, if--
                    ``(A) no fixed copy of the altered version of the 
                motion picture is created by such computer program or 
                other technology; and
                    ``(B) no changes, deletions or additions are made 
                by such computer program or other technology to 
                commercial advertisements, or to network or station 
                promotional announcements, that would otherwise be 
                performed or displayed before, during or after the 
                performance of the motion picture.''; and
            (4) by adding at the end the following:
    ``For purposes of paragraph (11), the term `making imperceptible' 
does not include the addition of audio or video content that is 
performed or displayed over or in place of existing content in a motion 
picture.''.
    (c) Exemption From Trademark Infringement.--Section 32 of the 
Trademark Act of 1946 (15 U.S.C. 1114) is amended by adding at the end 
the following:
    ``(3)(A) Any person who engages in the conduct described in 
paragraph (11) of section 110 of title 17, United States Code, and who 
complies with the requirements set forth in that paragraph is not 
liable on account of such conduct for a violation of any right under 
this Act. This subparagraph does not preclude liability of a person for 
conduct not described in paragraph (11) of section 110 of title 17, 
United States Code, even if that person also engages in conduct 
described in paragraph (11) of section 110 of such title.
    ``(B) A manufacturer, licensee, or licensor of technology that 
enables the making of limited portions of audio or video content of a 
motion picture imperceptible as described in subparagraph (A) is not 
liable on account of such manufacture or license for a violation of any 
right under this Act, if such manufacturer, licensee, or licensor 
ensures that the technology provides a clear and conspicuous notice at 
the beginning of each performance that the performance of the motion 
picture is altered from the performance intended by the director or 
copyright holder of the motion picture. The limitations on liability in 
subparagraphs (A) and (B) shall not apply to a manufacturer, licensee, 
or licensor of technology that fails to comply with this paragraph.
    ``(C) The requirement under subparagraph (B) to provide notice 
shall apply only with respect to technology manufactured after the end 
of the 180-day period beginning on the date of the enactment of the 
Family Movie Act of 2004.''.
    (d) Definition.--In this section, the term ``Trademark Act of 
1946'' means the Act entitled ``An Act to provide for the registration 
and protection of trademarks used in commerce, to carry out the 
provisions of certain international conventions, and for other 
purposes'', approved July 5, 1946 (15 U.S.C. 1051 et seq.).

      TITLE III--PROTECTING INTELLECTUAL RIGHTS AGAINST THEFT AND 
                             EXPROPRIATION

SEC. 301. SHORT TITLE.

    This title may be cited as the ``Protecting Intellectual Rights 
Against Theft and Expropriation Act of 2004''.

SEC. 302. AUTHORIZATION OF CIVIL COPYRIGHT ENFORCEMENT BY ATTORNEY 
              GENERAL.

    (a) In General.--Chapter 5 of title 17, United States Code, is 
amended by inserting after section 506 the following:
``Sec. 506a. Civil penalties for violations of section 506
    ``(a) In General.--In lieu of a criminal action under section 506, 
the Attorney General may commence a civil action in the appropriate 
United States district court against any person who engages in conduct 
constituting an offense under section 506. Upon proof of such conduct 
by a preponderance of the evidence, such person shall be subject to a 
civil penalty under section 504 which shall be in an amount equal to 
the amount which would be awarded under section 3663(a)(1)(B) of title 
18 and restitution to the copyright owner aggrieved by the conduct.
    ``(b) Other Remedies.--
            ``(1) In general.--Imposition of a civil penalty under this 
        section does not preclude any other criminal or civil 
        statutory, injunctive, common law or administrative remedy, 
        which is available by law to the United States or any other 
        person.
            ``(2) Offset.--Any restitution received by a copyright 
        owner as a result of a civil action brought under this section 
        shall be offset against any award of damages in a subsequent 
        copyright infringement civil action by that copyright owner for 
        the conduct that gave rise to the civil action brought under 
        this section.''.
    (b) Damages and Profits.--Section 504 of title 17, United States 
Code, is amended--
            (1) in subsection (b)--
                    (A) in the first sentence--
                            (i) by inserting ``, or the Attorney 
                        General in a civil action,'' after ``The 
                        copyright owner''; and
                            (ii) by striking ``him or her'' and 
                        inserting ``the copyright owner''; and
                    (B) in the second sentence by inserting ``, or the 
                Attorney General in a civil action,'' after ``the 
                copyright owner''; and
            (2) in subsection (c)--
                    (A) in paragraph (1), by inserting ``, or the 
                Attorney General in a civil action,'' after ``the 
                copyright owner''; and
                    (B) in paragraph (2), by inserting ``, or the 
                Attorney General in a civil action,'' after ``the 
                copyright owner''.
    (c) Technical and Conforming Amendment.--The table of sections for 
chapter 5 of title 17, United States Code, is amended by inserting 
after the item relating to section 506 the following:

``506a. Civil penalties for violation of section 506.''.

SEC. 303. AUTHORIZATION OF FUNDING FOR TRAINING AND PILOT PROGRAM.

    (a) Training and Pilot Program.--Not later than 180 days after 
enactment of this Act, the Attorney General shall develop a program to 
ensure effective implementation and use of the authority for civil 
enforcement of the copyright laws by--
            (1) establishing training programs, including practical 
        training and written materials, for qualified personnel from 
        the Department of Justice and United States Attorneys Offices 
        to educate and inform such personnel about--
                    (A) resource information on intellectual property 
                and the legal framework established both to protect and 
                encourage creative works as well as legitimate uses of 
                information and rights under the first amendment of the 
                United States Constitution;
                    (B) the technological challenges to protecting 
                digital copyrighted works from online piracy;
                    (C) guidance on and support for bringing copyright 
                enforcement actions against persons engaging in 
                infringing conduct, including model charging documents 
                and related litigation materials;
                    (D) strategic issues in copyright enforcement 
                actions, including whether to proceed in a criminal or 
                a civil action;
                    (E) how to employ and leverage the expertise of 
                technical experts in computer forensics;
                    (F) the collection and preservation of electronic 
                data in a forensically sound manner for use in court 
                proceedings;
                    (G) the role of the victim copyright owner in 
                providing relevant information for enforcement actions 
                and in the computation of damages; and
                    (H) the appropriate use of injunctions, 
                impoundment, forfeiture, and related authorities in 
                copyright law;
            (2) designating personnel from at least 4 United States 
        Attorneys Offices to participate in a pilot program designed to 
        implement the civil enforcement authority of the Attorney 
        General under section 506a of title 17, United States Code, as 
        added by this title; and
            (3) reporting to Congress annually on--
                    (A) the use of the civil enforcement authority of 
                the Attorney General under section 506a of title 17, 
                United States Code, as added by this title; and
                    (B) the progress made in implementing the training 
                and pilot programs described under paragraphs (1) and 
                (2) of this subsection.
    (b) Annual Report.--The report under subsection (a)(3) may be 
included in the annual performance report of the Department of Justice 
and shall include--
            (1) with respect to civil actions filed under section 506a 
        of title 17, United States Code, as added by this title--
                    (A) the number of investigative matters received by 
                the Department of Justice and United States Attorneys 
                Offices;
                    (B) the number of defendants involved in those 
                matters;
                    (C) the number of civil actions filed and the 
                number of defendants involved;
                    (D) the number of civil actions resolved or 
                terminated;
                    (E) the number of defendants involved in those 
                civil actions;
                    (F) the disposition of those civil actions, 
                including whether the civil actions were settled, 
                dismissed, or resolved after a trial;
                    (G) the dollar value of any civil penalty imposed 
                and the amount remitted to any copyright owner; and
                    (H) other information that the Attorney General may 
                consider relevant to inform Congress on the effective 
                use of the civil enforcement authority;
            (2) a description of the training program and the number of 
        personnel who participated in the program; and
            (3) the locations of the United States Attorneys Offices 
        designated to participate in the pilot program.
    (c) Authorization of Appropriations.--There are authorized to be 
appropriated $2,000,000 for fiscal year 2005 to carry out this section.

            TITLE IV--NATIONAL FILM PRESERVATION ACT OF 2004

  Subtitle A--Reauthorization of the National Film Preservation Board

SEC. 401. SHORT TITLE.

    This subtitle may be cited as the ``National Film Preservation Act 
of 2004''.

SEC. 402. REAUTHORIZATION AND AMENDMENT.

    (a) Duties of the Librarian of Congress.--Section 103 of the 
National Film Preservation Act of 1996 (2 U.S.C. 179m) is amended--
            (1) in subsection (b)--
                    (A) by striking ``film copy'' each place that term 
                appears and inserting ``film or other approved copy'';
                    (B) by striking ``film copies'' each place that 
                term appears and inserting ``film or other approved 
                copies''; and
                    (C) in the third sentence, by striking 
                ``copyrighted'' and inserting ``copyrighted, mass 
                distributed, broadcast, or published''; and
            (2) by adding at the end the following:
    ``(c) Coordination of Program With Other Collection, Preservation, 
and Accessibility Activities.--In carrying out the comprehensive 
national film preservation program for motion pictures established 
under the National Film Preservation Act of 1992, the Librarian, in 
consultation with the Board established pursuant to section 104, and in 
accordance with title 17, United States Code, shall--
            ``(1) carry out activities to make films included in the 
        National Film registry more broadly accessible for research and 
        educational purposes, and to generate public awareness and 
        support of the Registry and the comprehensive national film 
        preservation program;
            ``(2) review the comprehensive national film preservation 
        plan, and amend it to the extent necessary to ensure that it 
        addresses technological advances in the preservation and 
        storage of, and access to film collections in multiple formats; 
        and
            ``(3) wherever possible, undertake expanded initiatives to 
        ensure the preservation of the moving image heritage of the 
        United States, including film, videotape, television, and born 
        digital moving image formats, by supporting the work of the 
        National Audio-Visual Conservation Center of the Library of 
        Congress, and other appropriate nonprofit archival and 
        preservation organizations.''.
    (b) National Film Preservation Board.--Section 104 of the National 
Film Preservation Act of 1996 (2 U.S.C. 179n) is amended--
            (1) in subsection (a)(1), by striking ``20'' and inserting 
        ``22'';
            (2) in subsection (a)(2), by striking ``three'' and 
        inserting ``5'';
            (3) in subsection (d), by striking ``11'' and inserting 
        ``12''; and
            (4) by striking subsection (e) and inserting the following:
    ``(e) Reimbursement of Expenses.--Members of the Board shall serve 
without pay, but may receive travel expenses, including per diem in 
lieu of subsistence, in accordance with sections 5702 and 5703 of title 
5, United States Code.''.
    (c) National Film Registry.--Section 106 of the National Film 
Preservation Act of 1996 (2 U.S.C. 179q) is amended by adding at the 
end the following:
    ``(e) National Audio-Visual Conservation Center.--The Librarian 
shall utilize the National Audio-Visual Conservation Center of the 
Library of Congress at Culpeper, Virginia, to ensure that preserved 
films included in the National Film Registry are stored in a proper 
manner, and disseminated to researchers, scholars, and the public as 
may be appropriate in accordance with--
            ``(1) title 17 of the United States Code; and
            ``(2) the terms of any agreements between the Librarian and 
        persons who hold copyrights to such audiovisual works.''.
    (d) Use of Seal.--Section 107 (a) of the National Film Preservation 
Act of 1996 (2 U.S.C. 179q) is amended--
            (1) in paragraph (1), by inserting ``in any format'' after 
        ``or any copy''; and
            (2) in paragraph (2), by striking ``or film copy'' and 
        inserting ``in any format''.
    (e) Authorization of Appropriations.--Section 112 of the National 
Film Preservation Act of 1996 (2 U.S.C. 179v) is amended by striking 
``$250,000'' and inserting ``$200,000''.
    (f) Effective Date.--Section 113 of the National Film Preservation 
Act of 1996 (2 U.S.C. 179w) is amended by striking ``7'' and inserting 
``11''.

     Subtitle B--Reauthorization of the National Film Preservation 
                               Foundation

SEC. 411. SHORT TITLE.

    This subtitle may be cited as the ``National Film Preservation 
Foundation Reauthorization Act of 2004''.

SEC. 412. REAUTHORIZATION AND AMENDMENT.

    (a) Board of Directors.--Section 151703 of title 36, United States 
Code, is amended--
            (1) in subsection (b)(2)(A), by striking ``nine'' and 
        inserting ``12''; and
            (2) in subsection (b)(4), by striking the second sentence 
        and inserting ``There shall be no limit to the number of terms 
        to which any individual may be appointed.''.
    (b) Powers.--Section 151705 of title 36, United States Code, is 
amended in subsection (b) by striking ``District of Columbia'' and 
inserting ``the jurisdiction in which the principal office of the 
corporation is located''.
    (c) Principal Office.--Section 151706 of title 36, United States 
Code, is amended by inserting ``, or another place as determined by the 
board of directors'' after ``District of Columbia''.
    (d) Authorization of Appropriations.--Section 151711 of title 36, 
United States Code, is amended by striking subsections (a) and (b) and 
inserting the following:
    ``(a) Authorization of Appropriations.--There are authorized to be 
appropriated to the Library of Congress amounts necessary to carry out 
this chapter, not to exceed $250,000 for each of the fiscal years 2005 
and 2006, and not to exceed $400,000 for fiscal year 2007. These 
amounts are to be made available to the corporation to match any 
private contributions (whether in currency, services, or property) made 
to the corporation by private persons and State and local governments.
    ``(b) Limitation Related to Administrative Expenses.--Amounts 
authorized under this section may not be used by the corporation for 
management and general or fundraising expenses as reported to the 
Internal Revenue Service as part of an annual information return 
required under the Internal Revenue Code of 1986.''.

                 TITLE V--PRESERVATION OF ORPHAN WORKS

SEC. 501. SHORT TITLE.

    This title may be cited as the `` Preservation of Orphan Works 
Act''.

SEC. 502. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND ARCHIVES.

    Section 108(i) of title 17, United States Code, is amended by 
striking ``(b) and (c)'' and inserting ``(b), (c), and (h)''.

     TITLE VI--ENHANCING FEDERAL OBSCENITY REPORTING AND COPYRIGHT 
                              ENFORCEMENT

SEC. 601. SHORT TITLE.

    This title may be cited as the ``Enhancing Federal Obscenity 
Reporting and Copyright Enforcement Act of 2004''.

SEC. 602. HARMLESS ERRORS IN REGISTRATION CERTIFICATES.

    (a) In General.--Section 411 of title 17, United States Code, is 
amended--
            (1) by redesignating subsection (b) as subsection (c); and
            (2) inserting after subsection (a) the following:
    ``(b)(1) A certificate of registration shall satisfy the 
requirements of this section and section 412 irrespective of any 
inaccurate information therein, unless--
            ``(A) the inaccurate information was included on the 
        application for copyright registration with knowledge that it 
        was inaccurate; and
            ``(B) the inaccuracy of the information, if known, would 
        have caused the Register of Copyrights to refuse registration.
    ``(2) In any case in which inaccuracies described under paragraph 
(1) are alleged, the court shall request the Register of Copyrights to 
advise the court whether the inaccuracy of the information, if known, 
would have caused the Register of Copyrights to refuse registration.''.
    (b) Technical and Conforming Amendment.--Section 412 of title 17, 
United States Code, is amended by striking ``section 411(b)'' and 
inserting ``section 411(c)''.

SEC. 603. COMPUTATION OF STATUTORY DAMAGES.

    Section 504(c)(1) of title 17, United States Code, is amended in 
the second sentence by inserting before the period ``, except that the 
court in its discretion may determine that such parts are separate 
works if the court concludes that they are distinct works having 
independent economic value''.

SEC. 604. REPORT TO CONGRESS.

    The Attorney General shall include in the report of the Attorney 
General to Congress on the business of the Department of Justice, 
prepared under section 522 of title 28, United States Code, the number 
of misdemeanor prosecutions and the number of felony prosecutions under 
sections 1462, 1464, 1465, 1466, 1466A, 1470, 2252, 2252A, 2252B, 2260, 
2318, 2319, 2319A, and 2320 of title 18, United States Code, commenced 
and concluded during the last preceding fiscal year, including, in the 
case of those offenses where applicable, detailed information 
concerning--
            (1) the types of works involved;
            (2) the tangible media of expression and means of 
        reproduction and distribution involved; and
            (3) in the case of prosecutions concluded, the disposition 
        of such prosecutions, such as the number of convictions and 
        acquittals, and the sentences imposed.
                                                       Calendar No. 781

108th CONGRESS

  2d Session

                               H. R. 2391

_______________________________________________________________________

                                 AN ACT

To amend title 35, United States Code, to promote cooperative research 
  involving universities, the public sector, and private enterprises.

_______________________________________________________________________

                            October 7, 2004

                       Reported with an amendment