[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1932 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                S. 1932

  To provide criminal penalties for unauthorized recording of motion 
 pictures in a motion picture exhibition facility, to provide criminal 
    and civil penalties for unauthorized distribution of commercial 
         prerelease copyrighted works, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 22, 2003

  Mr. Cornyn (for himself, Mrs. Feinstein, Mr. Hatch, Mr. Smith, Mr. 
 Alexander, and Mr. Graham of South Carolina) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
  To provide criminal penalties for unauthorized recording of motion 
 pictures in a motion picture exhibition facility, to provide criminal 
    and civil penalties for unauthorized distribution of commercial 
         prerelease copyrighted works, 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 ``Artists' Rights and Theft Prevention 
Act of 2003'' or the ``ART Act''.

SEC. 2. CONGRESSIONAL FINDINGS.

    Congress finds the following:
            (1) Intellectual property, among other things, represents 
        the ideas, imagination and creativity needed to innovate long 
        before a product is brought to market. As such, it is 
        fundamental to the continued economic, social, and cultural 
        development of society and deserves the protection of our laws.
            (2) Music, film, software, and all forms of intellectual 
        property represent one of the strongest and most significant 
        sectors of the United States economy, as demonstrated by the 
        fact that these industries--
                    (A) accounted for more than 5 percent of the United 
                States Gross Domestic Product (GDP), or 
                $535,100,000,000 in 2001;
                    (B) employ almost 6 percent of all United States 
                employment; and
                    (C) led all major industry sectors in foreign sales 
                and exports in 2001.
            (3) In an attempt to combat the growing use of the Internet 
        and technology for the illegal reproduction and distribution of 
        copyrighted materials, Congress unanimously passed and 
        President Clinton signed the ``No Electronic Theft'' or ``NET'' 
        Act in 1997. The NET Act is designed to strengthen copyright 
        and trademark laws and to permit the prosecution of individuals 
        in cases involving large-scale illegal reproduction or 
        distribution of copyrighted works where the infringers act 
        willfully.
            (4) Under the NET Act's requirement of economic harm, 
        investigations by law enforcement of copyright infringements 
        are particularly resource intensive and pose significant 
        challenges. In the interest of broader deterrence and in order 
        to facilitate the prosecution of particularly egregious 
        copyright violations, it is important to recognize that a 
        significant level of economic harm can be reached by the 
        distribution of so-called ``prerelease'' commercial works.
            (5) The use of camcorders and other audiovisual recording 
        devices in movie theaters to make illegal copies of films is 
        posing a serious threat to the motion picture industry. 
        According to a recent industry study, 92.4 percent of the first 
        copies of movies available for download on the Internet 
        originate from camcorders.
            (6) Given the difficulty of enforcement, online theft of 
        music, film, software, and all forms of intellectual property 
        continues to rise. The negative effects on this large segment 
        of the United States economy are significant, as exemplified by 
        almost a 31 percent drop in sales for the music industry from 
        mid-year 2000 to mid-year 2003, which even critics of the 
        industry acknowledge to be heavily influenced by the rampant 
        distribution of pirated music.
            (7) Federal legislation is necessary and warranted to 
        combat the most egregious forms of online theft of intellectual 
        property and its significant, negative economic impact on the 
        United States economy because--
                    (A) Article 1, section 8 of the Constitution 
                confers upon Congress the power ``[t]o promote the 
                Progress of Science and useful Arts, by securing for 
                limited Times to Authors and Inventors the exclusive 
                Right to their respective Writings and Discoveries,'' 
                as well as the power ``[t]o regulate Commerce with 
                foreign nations, and among the several States.'';
                    (B) the importance of the music, film, software and 
                other intellectual property-based industries to the 
                overall health of the United States economy is well 
                documented and significant; and
                    (C) theft and distribution of intellectual property 
                across State and international lines occurs on a 
                regular basis.

SEC. 3. CRIMINAL PENALTIES FOR UNAUTHORIZED RE-CORDING 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.--Whoever, without the consent of the copyright 
owner, knowingly uses or attempts to use an audiovisual recording 
device in a motion picture exhibition facility to transmit or make a 
copy of a motion picture or other audiovisual work protected under 
title 17, United States Code, or any part thereof, 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.
    ``(b) Forfeiture and Destruction.--When a person is convicted of a 
violation of 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, United 
States Code, 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 a person acting pursuant to a 
contract with the United States, a State, or a political subdivision of 
a State.
    ``(d) Victim Impact Statement.--
            ``(1) In general.--During the preparation of the 
        presentence report pursuant to 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.
    ``(e) Definitions.--As used in this section, the following 
definitions shall apply:
            ``(1) Audiovisual work, copy, and motion picture.--The 
        terms `audiovisual work', `copy', and `motion picture' have, 
        respectively, the meanings given those terms in section 101 of 
        title 17, United States Code.
            ``(2) Audiovisual recording device.--The term `audiovisual 
        recording device' means a digital or analog photographic or 
        video camera, or any other technology 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 any theater, screening room, 
        lobby, indoor or out-door screening venue, ballroom, or other 
        premises where copyrighted motion pictures or other audio-
        visual works are publicly exhibited, regardless of whether an 
        admission fee is charged.''.
    (b) Chapter Analysis.--The chapter analysis for 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. 4. CRIMINAL INFRINGEMENT OF A COMMERCIAL PRERELEASE COPYRIGHTED 
              WORK.

    Section 2319 of title 18, United States Code, is amended--
            (1) by redesignating subsection (e) as subsection (f); and
            (2) by adding after subsection (d) the following:
    ``(e)(1) For purposes of subsections (b) and (c) of this section 
and of section 506(a) of title 17, United States Code, in the case of a 
computer program, a non-dramatic musical work, a motion picture or 
other audiovisual work, or a sound recording protected under title 17, 
United States Code, that is being prepared for commercial distribution, 
it shall be conclusively presumed that a person distributed at least 10 
copies or phonorecords of the work, and that such copies or 
phonorecords have a total retail value of more than $2,500, if that 
person--
            ``(A) distributes such work by making it available on a 
        computer network accessible to members of the public who are 
        able to reproduce the work through such access without the 
        express consent of the copyright owner; and
            ``(B) knew or should have known that the work was intended 
        for commercial distribution.
    ``(2) For purposes of paragraph (1), a work protected under title 
17, United States Code, is being prepared for commercial distribution--
            ``(A) when at the time of unauthorized distribution, the 
        copyright owner had a reasonable expectation of substantial 
        commercial distribution and the work had not yet been so 
        distributed; or
            ``(B) in the case of a motion picture, protected under 
        title 17, United States Code, when at the time of unauthorized 
        distribution, the work had been made available for viewing in 
        motion picture exhibition facilities, but had not been made 
        available to the general public in the United States in a 
        format intended to permit viewing outside motion picture 
        exhibition facilities as defined in section 2319B.''.

SEC. 5. CIVIL REMEDIES FOR INFRINGEMENT OF A COMMERCIAL PRERELEASE 
              COPYRIGHTED WORK.

    Section 504(b) of title 17, United States Code, is amended--
            (1) by striking the first instance of ``The copyright'' and 
        inserting the following:
            ``(1) In general.--The copyright''; and
            (2) by adding at the end the following:
            ``(2) Damage for prerelease infringement.--
                    ``(A) In general.--In the case of a computer 
                program, a non-dramatic musical work, a motion picture 
                or other audiovisual work, or a sound recording 
                protected under title 17, United States Code, that is 
                being prepared for commercial distribution, actual 
                damages shall be presumed conclusively to be no less 
                that $2,500 per infringement, if a person--
                            ``(i) distributes such work by making it 
                        available on a computer network accessible to 
                        members of the public who are able to reproduce 
                        the work through such access without the 
                        express consent of the copyright owner; and
                            ``(ii) knew or should have known that the 
                        work was intended for commercial distribution.
                    ``(B) Work prepared for distribution.--For purposes 
                of subparagraph (A), a work protected under this title 
                is being prepared for commercial distribution--
                            ``(i) when at the time of unauthorized 
                        distribution, the copyright owner had a 
                        reasonable expectation of substantial 
                        commercial distribution and the work had not 
                        yet been so distributed; or
                            ``(ii) in the case of a motion picture, 
                        protected under this title, when at the time of 
                        unauthorized distribution, the work had been 
                        made available for viewing in motion picture 
                        exhibition facilities, but had not been made 
                        available to the general public in the United 
                        States in a format intended to permit viewing 
                        outside motion picture exhibition facilities as 
                        defined in section 2319B of title 18.''.

SEC. 6. SENTENCING GUIDELINES.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the United States Sentencing Commission shall--
            (1) review the Federal sentencing guidelines with respect 
        to offenses involving the illegal reproduction and distribution 
        of copyrighted works in violation of Federal law, including 
        violations of section 2319 and section 2319B of title 18, 
        United States Code;
            (2) amend the Federal sentencing guidelines, as necessary, 
        to provide for increased penalties for offenses involving the 
        illegal reproduction and distribution of works protected under 
        title 17, United States Code, in a manner that reflects the 
        serious nature of, and need to deter, such offenses;
            (3) submit a report to Congress that details its findings 
        and amendments; and
            (4) take such other action that the Commission considers 
        necessary to carry out this Act.
    (b) Consultation.--In carrying out this section, the United States 
Sentencing Commission shall seek input from the Department of Justice, 
copyright owners, and other interested parties.

SEC. 7. AUTHORIZATION.

    There is authorized to be appropriated to the Department of Justice 
an additional $5,000,000 for each of fiscal years 2005, 2006, 2007, 
2008, and 2009 to prosecute violations of section 2319 of title 18, 
United States Code.
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