[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3632 Referred in Senate (RFS)]

  2d Session
                                H. R. 3632


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 22, 2004

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

_______________________________________________________________________

                                 AN ACT


 
    To prevent and punish counterfeiting of copyrighted copies and 
                 phonorecords, and for other purposes.

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

SECTION 1. SHORT TITLE.

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

                TITLE I--ANTI-COUNTERFEITING PROVISIONS

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Anti-counterfeiting Amendments Act 
of 2004''.

SEC. 102. PROHIBITION AGAINST TRAFFICKING IN COUNTERFEIT COMPONENTS.

    (a) In General.--Section 2318 of title 18, United States Code, is 
amended--
            (1) by striking the section heading and inserting the 
        following:
``Sec. 2318. Trafficking in counterfeit labels, illicit labels, or 
              counterfeit documentation or packaging'';
            (2) by striking subsection (a) and inserting the following:
    ``(a) Whoever, in any of the circumstances described in subsection 
(c), knowingly traffics in--
            ``(1) a counterfeit label or illicit label affixed to, 
        enclosing, or accompanying, or designed to be affixed to, 
        enclose, or accompany--
                    ``(A) a phonorecord;
                    ``(B) a copy of a computer program;
                    ``(C) a copy of a motion picture or other 
                audiovisual work;
                    ``(D) a copy of a literary work;
                    ``(E) a copy of a pictorial, graphic, or sculptural 
                work;
                    ``(F) a work of visual art; or
                    ``(G) documentation or packaging; or
            ``(2) counterfeit documentation or packaging,
shall be fined under this title or imprisoned for not more than 5 
years, or both.'';
            (3) in subsection (b)--
                    (A) in paragraph (2), by striking ``and'' after the 
                semicolon;
                    (B) in paragraph (3)--
                            (i) by striking ``and `audiovisual work' 
                        have'' and inserting the following: 
                        ```audiovisual work', `literary work', 
                        `pictorial, graphic, or sculptural work', 
                        `sound recording', `work of visual art', and 
                        `copyright owner' have''; and
                            (ii) by striking the period at the end and 
                        inserting a semicolon; and
                    (C) by adding at the end the following:
            ``(4) the term `illicit label' means a genuine certificate, 
        licensing document, registration card, or similar labeling 
        component--
                    ``(A) that is used by the copyright owner to verify 
                that a phonorecord, a copy of a computer program, a 
                copy of a motion picture or other audiovisual work, a 
                copy of a literary work, a copy of a pictorial, 
                graphic, or sculptural work, a work of visual art, or 
                documentation or packaging is not counterfeit or 
                infringing of any copyright; and
                    ``(B) that is, without the authorization of the 
                copyright owner--
                            ``(i) distributed or intended for 
                        distribution not in connection with the copy, 
                        phonorecord, or work of visual art to which 
                        such labeling component was intended to be 
                        affixed by the respective copyright owner; or
                            ``(ii) in connection with a genuine 
                        certificate or licensing document, knowingly 
                        falsified in order to designate a higher number 
                        of licensed users or copies than authorized by 
                        the copyright owner, unless that certificate or 
                        document is used by the copyright owner solely 
                        for the purpose of monitoring or tracking the 
                        copyright owner's distribution channel and not 
                        for the purpose of verifying that a copy or 
                        phonorecord is noninfringing;
            ``(5) the term `documentation or packaging' means 
        documentation or packaging, in physical form, for a 
        phonorecord, copy of a computer program, copy of a motion 
        picture or other audiovisual work, copy of a literary work, 
        copy of a pictorial, graphic, or sculptural work, or work of 
        visual art; and
            ``(6) the term `counterfeit documentation or packaging' 
        means documentation or packaging that appears to be genuine, 
        but is not.'';
            (4) in subsection (c)--
                    (A) by striking paragraph (3) and inserting the 
                following:
            ``(3) the counterfeit label or illicit label is affixed to, 
        encloses, or accompanies, or is designed to be affixed to, 
        enclose, or accompany--
                    ``(A) a phonorecord of a copyrighted sound 
                recording or copyrighted musical work;
                    ``(B) a copy of a copyrighted computer program;
                    ``(C) a copy of a copyrighted motion picture or 
                other audiovisual work;
                    ``(D) a copy of a literary work;
                    ``(E) a copy of a pictorial, graphic, or sculptural 
                work;
                    ``(F) a work of visual art; or
                    ``(G) copyrighted documentation or packaging; or''; 
                and
                    (B) in paragraph (4), by striking ``for a computer 
                program''; and
            (5) in subsection (d)--
                    (A) by inserting ``or illicit labels'' after 
                ``counterfeit labels'' each place it appears; and
                    (B) by inserting before the period at the end the 
                following: ``, and of any equipment, device, or 
                material used to manufacture, reproduce, or assemble 
                the counterfeit labels or illicit labels''.
    (b) Civil Remedies.--Section 2318 of title 18, United States Code, 
is further amended by adding at the end the following:
    ``(f) Civil Remedies.--
            ``(1) In general.--Any copyright owner who is injured, or 
        is threatened with injury, by a violation of subsection (a) may 
        bring a civil action in an appropriate United States district 
        court.
            ``(2) Discretion of court.--In any action brought under 
        paragraph (1), the court--
                    ``(A) may grant 1 or more temporary or permanent 
                injunctions on such terms as the court determines to be 
                reasonable to prevent or restrain a violation of 
                subsection (a);
                    ``(B) at any time while the action is pending, may 
                order the impounding, on such terms as the court 
                determines to be reasonable, of any article that is in 
                the custody or control of the alleged violator and that 
                the court has reasonable cause to believe was involved 
                in a violation of subsection (a); and
                    ``(C) may award to the injured party--
                            ``(i) reasonable attorney fees and costs; 
                        and
                            ``(ii)(I) actual damages and any additional 
                        profits of the violator, as provided in 
                        paragraph (3); or
                            ``(II) statutory damages, as provided in 
                        paragraph (4).
            ``(3) Actual damages and profits.--
                    ``(A) In general.--The injured party is entitled to 
                recover--
                            ``(i) the actual damages suffered by the 
                        injured party as a result of a violation of 
                        subsection (a), as provided in subparagraph (B) 
                        of this paragraph; and
                            ``(ii) any profits of the violator that are 
                        attributable to a violation of subsection (a) 
                        and are not taken into account in computing the 
                        actual damages.
                    ``(B) Calculation of damages.--The court shall 
                calculate actual damages by multiplying--
                            ``(i) the value of the phonorecords, 
                        copies, or works of visual art which are, or 
                        are intended to be, affixed with, enclosed in, 
                        or accompanied by any counterfeit labels, 
                        illicit labels, or counterfeit documentation or 
                        packaging, by
                            ``(ii) the number of phonorecords, copies, 
                        or works of visual art which are, or are 
                        intended to be, affixed with, enclosed in, or 
                        accompanied by any counterfeit labels, illicit 
                        labels, or counterfeit documentation or 
                        packaging.
                    ``(C) Definition.--For purposes of this paragraph, 
                the `value' of a phonorecord, copy, or work of visual 
                art is--
                            ``(i) in the case of a copyrighted sound 
                        recording or copyrighted musical work, the 
                        retail value of an authorized phonorecord of 
                        that sound recording or musical work;
                            ``(ii) in the case of a copyrighted 
                        computer program, the retail value of an 
                        authorized copy of that computer program;
                            ``(iii) in the case of a copyrighted motion 
                        picture or other audiovisual work, the retail 
                        value of an authorized copy of that motion 
                        picture or audiovisual work;
                            ``(iv) in the case of a copyrighted 
                        literary work, the retail value of an 
                        authorized copy of that literary work;
                            ``(v) in the case of a pictorial, graphic, 
                        or sculptural work, the retail value of an 
                        authorized copy of that work; and
                            ``(vi) in the case of a work of visual art, 
                        the retail value of that work.
            ``(4) Statutory damages.--The injured party may elect, at 
        any time before final judgment is rendered, to recover, instead 
        of actual damages and profits, an award of statutory damages 
        for each violation of subsection (a) in a sum of not less than 
        $2,500 or more than $25,000, as the court considers 
        appropriate.
            ``(5) Subsequent violation.--The court may increase an 
        award of damages under this subsection by 3 times the amount 
        that would otherwise be awarded, as the court considers 
        appropriate, if the court finds that a person has subsequently 
        violated subsection (a) within 3 years after a final judgment 
        was entered against that person for a violation of that 
        subsection.
            ``(6) Limitation on actions.--A civil action may not be 
        commenced under section unless it is commenced within 3 years 
        after the date on which the claimant discovers the violation of 
        subsection (a).''.
    (c) Conforming Amendment.--The item relating to section 2318 in the 
table of sections for chapter 113 of title 18, United States Code, is 
amended to read as follows:

``2318. Trafficking in counterfeit labels, illicit labels, or 
                            counterfeit documentation or packaging.''.

SEC. 103. OTHER RIGHTS NOT AFFECTED.

    (a) Chapters 5 and 12 of Title 17; Electronic Transmissions.--The 
amendments made by this title--
            (1) shall not enlarge, diminish, or otherwise affect any 
        liability or limitations on liability under sections 512, 1201 
        or 1202 of title 17, United States Code; and
            (2) shall not be construed to apply--
                    (A) in any case, to the electronic transmission of 
                a genuine certificate, licensing document, registration 
                card, similar labeling component, or documentation or 
                packaging described in paragraph (4) or (5) of section 
                2318(b) of title 18, United States Code, as amended by 
                this title; and
                    (B) in the case of a civil action under section 
                2318(f) of title 18, United States Code, to the 
                electronic transmission of a counterfeit label or 
                counterfeit documentation or packaging defined in 
                paragraph (1) or (6) of section 2318(b) of title 18, 
                United States Code.
    (b) Fair Use.--The amendments made by this title shall not affect 
the fair use, under section 107 of title 17, United States Code, of a 
genuine certificate, licensing document, registration card, similar 
labeling component, or documentation or packaging described in 
paragraph (4) or (5) of section 2318(b) of title 18, United States 
Code, as amended by this title.

             TITLE II--FRAUDULENT ONLINE IDENTITY SANCTIONS

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Fraudulent Online Identity 
Sanctions Act''.

SEC. 202. AMENDMENT TO TRADEMARK ACT OF 1946.

    Section 35 of 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 (commonly referred to as the 
``Trademark Act of 1946''; 15 U.S.C. 1117), is amended by adding at the 
end the following new subsection:
    ``(e) In the case of a violation referred to in this section, it 
shall be a rebuttable presumption that the violation is willful for 
purposes of determining relief if the violator, or a person acting in 
concert with the violator, knowingly provided or knowingly caused to be 
provided materially false contact information to a domain name 
registrar, domain name registry, or other domain name registration 
authority in registering, maintaining, or renewing a domain name used 
in connection with the violation. Nothing in this subsection limits 
what may be considered a willful violation under this section.''.

SEC. 203. AMENDMENT TO TITLE 17, UNITED STATES CODE.

    Section 504(c) of title 17, United States Code, is amended by 
adding at the end the following new paragraph:
            ``(3) (A) In a case of infringement, it shall be a 
        rebuttable presumption that the infringement was committed 
        willfully for purposes of determining relief if the violator, 
        or a person acting in concert with the violator, knowingly 
        provided or knowingly caused to be provided materially false 
        contact information to a domain name registrar, domain name 
        registry, or other domain name registration authority in 
        registering, maintaining, or renewing a domain name used in 
        connection with the infringement.
            ``(B) Nothing in this paragraph limits what may be 
        considered willful infringement under this subsection.
            ``(C) For purposes of this paragraph, the term `domain 
        name' has the meaning given that term in section 45 of 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 (commonly referred to as the `Trademark 
        Act of 1946'; 15 U.S.C. 1127).''.

SEC. 204. AMENDMENT TO TITLE 18, UNITED STATES CODE.

    (a) Sentencing Enhancement.--Section 3559 of title 18, United 
States Code, is amended by adding at the end the following:
    ``(f)(1) If a defendant who is convicted of a felony offense (other 
than offense of which an element is the false registration of a domain 
name) knowingly falsely registered a domain name and knowingly used 
that domain name in the course of that offense, the maximum 
imprisonment otherwise provided by law for that offense shall be 
doubled or increased by 7 years, whichever is less.
    ``(2) As used in this section--
            ``(A) the term `falsely registers' means registers in a 
        manner that prevents the effective identification of or contact 
        with the person who registers; and
            ``(B) the term `domain name' has the meaning given that 
        term is section 45 of 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 
        (commonly referred to as the `Trademark Act of 1946') (15 
        U.S.C. 1127).''.
    (b) United States Sentencing Commission.--
            (1) Directive.--Pursuant to its authority under section 
        994(p) of title 28, United States Code, and in accordance with 
        this section, the United States Sentencing Commission shall 
        review and amend the sentencing guidelines and policy 
        statements to ensure that the applicable guideline range for a 
        defendant convicted of any felony offense carried out online 
        that may be facilitated through the use of a domain name 
        registered with materially false contact information is 
        sufficiently stringent to deter commission of such acts.
            (2) Requirements.--In carrying out this subsection, the 
        Sentencing Commission shall provide sentencing enhancements for 
        anyone convicted of any felony offense furthered through 
        knowingly providing or knowingly causing to be provided 
        materially false contact information to a domain name 
        registrar, domain name registry, or other domain name 
        registration authority in registering, maintaining, or renewing 
        a domain name used in connection with the violation.
            (3) Definition.--For purposes of this subsection, the term 
        ``domain name'' has the meaning given that term in section 45 
        of 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 (commonly referred to as the 
        ``Trademark Act of 1946''; 15 U.S.C. 1127).

SEC. 205. CONSTRUCTION.

    (a) Free Speech and Press.--Nothing in this title shall enlarge or 
diminish any rights of free speech or of the press for activities 
related to the registration or use of domain names.
    (b) Discretion of Courts in Determining Relief.--Nothing in this 
title shall restrict the discretion of a court in determining damages 
or other relief to be assessed against a person found liable for the 
infringement of intellectual property rights.
    (c) Discretion of Courts in Determining Terms of Imprisonment.--
Nothing in this title shall be construed to limit the discretion of a 
court to determine the appropriate term of imprisonment for an offense 
under applicable law.

                           TITLE III--COURTS

SEC. 301. ADDITIONAL PLACE OF HOLDING COURT IN THE DISTRICT OF 
              COLORADO.

    Section 85 of title 28, United States Code, is amended by inserting 
``Colorado Springs,'' after ``Boulder,''.

SEC. 302. PLACE OF HOLDING COURT IN THE NORTHERN DISTRICT OF NEW YORK.

    Section 112(a) of title 28, United States Code, is amended by 
inserting ``Plattsburgh,'' after ``Malone,''.

            Passed the House of Representatives September 21, 2004.

            Attest:

                                                 JEFF TRANDAHL,

                                                                 Clerk.