109 HR 5921 IH: Intellectual Property Enhanced U.S. House of Representatives 2006-07-27 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
I 109th CONGRESS 2d Session H. R. 5921 IN THE HOUSE OF REPRESENTATIVES July 27, 2006 Mr. Sensenbrenner (for himself, Mr. Coble, and Mr. Smith of Texas) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend titles 17 and 18, United States Code, to strengthen the protection of intellectual property, and for other purposes.
1.
Short title
This Act may be cited as the Intellectual Property Enhanced Criminal Enforcement Act of 2006.
2.
Registration in civil infringement actions
(a)
Limitation to civil actions; protection of copyright claim with pending application; harmless error
Section 411 of title 17, United States Code, is amended— (1)in the section heading, by inserting civil before infringement; (2)in subsection (a)— (A)in the first sentence, by striking no action and inserting no civil action; (B)in the second sentence, by striking an action and inserting a civil action; and (C)by inserting after the first sentence the following: The receipt by the Copyright Office of a deposit, application, and fee required for registration in proper form shall suffice as registration of the copyright claim under this subsection.; (3)in subsection (b)— (A)by redesignating that subsection as subsection (c); and (B)by striking 506 and sections 509 and and inserting 505 and section; and (4)by inserting after subsection (a) the following new subsection: (b)(1)A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless— (A)the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B)the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration. (2)In any case in which inaccurate information described under paragraph (1) is alleged, the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.’’; . (b)
Conforming amendments
(1)Section 412 of title 17, United States Code, is amended by striking ‘‘411(b)’’ and inserting ‘‘411(c)’’. (2)The item relating to section 411 in the table of sections for chapter 4 of title 17, United States Code, is amended to read as follows: 411. Registration and civil infringement actions. .
3.
Civil remedies for infringement
Section 503(a) of title 17, United States Code, is amended— (1)by striking and of all plates and inserting , of all plates; and (2)by striking the period and inserting , and of records documenting the manufacture, sale, or receipt of items involved in such violation. The court shall enter an appropriate protective order with respect to discovery of any records that have been seized. The protective order shall provide for appropriate procedures to assure that confidential information contained in such records is not improperly disclosed to any party..
4.
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’’.
5.
Criminal infringement
(a)
In general
Section 506(a) of title 17, United States Code, is amended— (1)by redesignating paragraph (3) as paragraph (4); and (2)by inserting after paragraph (2) the following: (3)
Attempt and conspiracy
(A)
Attempt
Any person who attempts to commit an offense under paragraph (1) shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt. (B)
Conspiracy
If two or more persons conspire to commit an offense under paragraph (1) and one or more of such persons do any act to effectuate the object of the conspiracy, each shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the conspiracy. . (b)
Forfeiture and destruction; restitution
Section 506(b) of title 17, United States Code, is amended to read as follows: (b)
Forfeiture, destruction, and restitution
Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law. . (c)
Conforming amendment
Section 509 of title 17, United States Code, and the item relating to that section in the table of sections for chapter 5 of such title, are repealed.
6.
Importation and exportation
(a)
Importation and exportation of infringing items
Section 602(a) of title 17, United States Code, is amended— (1)by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and (C); (2)in the first sentence, by striking Importation and inserting (1) Importation; (3)by striking 106, actionable and inserting 106 and is actionable; (4)by striking This subsection does not apply to— and inserting the following: (2)Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright or would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106 and is actionable under sections 501 and 506. (3)This subsection does not apply to— ; (5)in subparagraph (A), as redesignated, by inserting or exportation after importation; (6)in subparagraph (B), as redesignated— (A)by striking , for the private use of the importer and inserting or exportation, for the private use of the importer or exporter; and (B)by inserting or departing from the United States after outside the United States. (b)
Conforming amendments
(1)The section heading for section 602 of title 17, United States Code, is amended by inserting or exportation after importation. (2)The table of sections for chapter 6 of title 17, United States Code, is amended by inserting or exportation after importation. (3)The heading for chapter 6 of title 17, United States Code, is amended to read as follows: 6
Manufacturing Requirements, Importation, and Exportation
. (4)The item relating to chapter 6 in the table of chapters for title 17, United States Code, is amended to read as follows: 6.Manufacturing Requirements, Importation, and Exportation601 .
7.
Circumvention of copyright protection systems
Section 1201 of title 17, United States Code, is amended— (a)in subsection (a)— (1)in paragraph (2), by striking import,; and (2)in paragraph (3)— (A)in subparagraph (A), by striking and after the semicolon; (B)in subparagraph (B), by striking the period and inserting ; and; and (C)by adding at the end the following: (C)the term traffic in means to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of. ; and (3)in subsection (b)— (A)in paragraph (1), by striking import,; and (B)in paragraph (2)— (i)in subparagraph (A), by striking and after the semicolon; (ii)in subparagraph (B), by striking the period and inserting ; and; and (iii)by adding at the end the following: (C)the term traffic in means to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of. .
8.
Fraud in authentication procedures
Section 1028(d)(12) of title 18, United States Code, is amended to read as follows: (12)(A)the term traffic in means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of; and (B)the term financial gain includes the receipt, or expected receipt, of anything of value. .
9.
Fraud in connection with access devices
Section 1029(e)(5) of title 18, United States Code, is amended to read as follows: (5)the term traffic in means to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of; .
10.
Forfeiture under Economic Espionage Act
Section 1834 of title 18, United States Code, is amended to read as follows:
1834.
Criminal forfeiture
Forfeiture, destruction and restitution relating to this chapter shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.
.
11.
Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging for works that can be copyrighted
Section 2318 of title 18, United States Code, is amended as follows: (1)Subsection (a) is amended—— (A)by redesignating subparagraphs (A) through (G) as clauses (i) through (vii), respectively; (B)by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; (C)by striking Whoever and inserting (1) Whoever; (D)by striking 5 years and inserting 10 years; and (E)by adding at the end the following: (2)Whoever is convicted of an offense under paragraph (1), having previously been convicted of a felony offense under this section, under section 1204(a) of title 17, or under section 2319, 2319A, or 2319B of this title, shall be imprisoned not more than 20 years, fined under this title, or both. . (2)Section 2318(d) is amended to read as follows: (d)
Forfeiture and destruction of property; restitution
Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law. . (3)Section 2318 is further amended by striking subsection (e) and redesignating subsection (f) as subsection (e).
12.
Criminal infringement of copyright
Section 2319 of title 18, United States Code, is amended— (1)in subsection (b)— (A)in paragraph (1), by striking 5 years and inserting 10 years; and (B)in paragraph (2)— (i)by striking 10 years and inserting 20 years; and (ii)by striking if the offense is a second or subsequent offense under paragraph (1) and inserting if the offense was committed after a prior felony conviction under this section, under section 1204(a) of title 17, or under section 2318, 2319A, or 2319B of this title; and (2)in subsection (c)— (A)in paragraph (1), by striking 3 years and inserting 6 years; and (B)in paragraph (2)— (i)by striking 6 years and inserting 12 years; and (ii)by striking if the offense is a second or subsequent offense under paragraph (1) and inserting if the offense was committed after a prior felony conviction under this section, under section 1204(a) of title 17, or under section 2318, 2319A, or 2319B of this title.
13.
Unauthorized fixation of and trafficking in reproductions of live musical performances
Section 2319A of title 18, United States Code, is amended as follows: (1)Subsection (a) is amended—— (A)by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and (C), respectively; (B)in subparagraph (C), as redesignated, by striking paragraph (1) and inserting subparagraph (A); (C)by striking Whoever and inserting (1) Whoever; (D)by striking 5 years and inserting 10 years; (E)by striking , or if the offense and all that follows through or both; and (F)by adding at the end the following: (2)Whoever is convicted of an offense under paragraph (1), having previously been convicted of a felony offense under paragraph (1), under section 1204(a) of title 17, or under section 2318, 2319, or 2319B of this title, shall be imprisoned not more than 20 years, fined under this title, or both. . (2)Section 2319A is amended— (A)by striking subsection (c) and redesignating subsections (d), (e), and (f) as subsections (c), (d), and (e), respectively; and (B)by amending subsection (b) to read as follows: (b)
Forfeiture and destruction of property; restitution
Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law. .
14.
Unauthorized recording of motion pictures
Section 2319B of title 18, United States Code, is amended as follows: (1)Subsection (a) is amended— (A)by striking Any person and inserting (1) Any person; (B)by striking shall— and all that follows through the end of paragraph (2) and inserting shall be imprisoned not more than 10 years, or fined under this title, or both.; and (C)by striking The possession and inserting the following: (2)Whoever is convicted of an offense under paragraph (1), having previously been convicted of a felony offense under paragraph (1), under section 1204(a) of title 17, or under section 2318, 2319, or 2319A of this title, shall be imprisoned not more than 20 years, fined under this title, or both. (3)The possession . (2)Section 2319B(b) is amended to read as follows: (b)
Forfeiture and destruction of property; restitution
Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law. .
15.
Trafficking in counterfeit goods or services
Section 2320 of title 18, United States Code, is amended as follows: (1)Subsection (a) is amended— (A)by striking (a) Whoever and inserting (a)
Offenses
(1)
In general
Whoever ; (B)by striking 10 years and inserting 20 years; (C)by striking 20 years and inserting 30 years; and (D)by adding at the end the following: (2)
Serious bodily harm or death
(A)If the offender knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of paragraph (1), the penalty shall be a fine under this title or imprisonment for not more than 30 years, or both. (B)If the offender knowingly or recklessly causes or attempts to cause death from conduct in violation of paragraph (1), the penalty shall be a fine under this title or imprisonment for any term of years or for life, or both. . (2)Subsection (b) is amended to read as follows: (b)
Forfeiture and destruction of property; restitution
Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law. .
16.
Forfeiture, destruction, and restitution
(a)
In general
Chapter 111 of title 18, United States Code, is amended by adding at the end the following new section:
2323.
Forfeiture, destruction, and restitution
(a)
Civil forfeiture
(1)
Property subject to forfeiture
The following property is subject to forfeiture to the United States: (A)Any infringing, counterfeit, illicit, or misappropriated article involved in an offense under section 506 or 1204 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, or any article the making or trafficking of which is prohibited by any such section or chapter. (B)Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A). (C)Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A). (2)
Procedures
The provisions of chapter 46 relating to civil forfeitures shall extend to any civil forfeiture under this section. At the conclusion of the forfeiture proceedings, the court shall order that any property forfeited under paragraph (1) be destroyed, or otherwise disposed of according to law. (b)
Criminal forfeiture
(1)
Property subject to forfeiture
The court, in imposing sentence on a person convicted of an offense under section 506 or 1204 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, shall order, in addition to any other sentence imposed, that the person forfeit to the United States any property subject to forfeiture under subsection (a) for that offense. (2)
Procedures
(A)
In general
The forfeiture of property under paragraph (1), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that section. (B)
Destruction
At the conclusion of the forfeiture proceedings, the court— (i)shall order the destruction of any forfeited article or component of an article bearing or consisting of a counterfeit mark; and (ii)shall order the destruction or other lawful disposition of any infringing items or other property described in subsection (a)(1)(A) and forfeited under paragraph (1) of this subsection. (c)
Restitution
When a person is convicted of an offense under section 506 or 1204 of title 17 or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, the court, pursuant to section 3556 of this title, shall order the person to pay restitution to any victim of the offense as an offense against property referred to in section 3663A(c)(1)(A)(ii) of this title.
. (b)
Conforming amendment
The table of sections for chapter 111 of title 18, United States Code, is amended by adding at the end the following new items: 2323. Forfeiture, destruction, and restitution. .
17.
Improved investigative and forensic resources for enforcement of laws related to intellectual property crimes
(a)
In general
The Attorney General, in consultation with the Director of the Federal Bureau of Investigation, shall, with respect to crimes related to the theft of intellectual property— (1)create an operational unit of the Federal Bureau of Investigation— (A)to work with the Computer Crime and Intellectual Property section of the Department of Justice on the investigation and coordination of intellectual property crimes that are complex, committed in more than one judicial district, or international; (B)that consists of at least 10 agents of the Bureau; and (C)that is located at the headquarters of the Bureau; (2)ensure that any unit in the Department of Justice responsible for investigating computer hacking or intellectual property crimes is assigned at least 2 agents of the Federal Bureau of Investigation (in addition to any agent assigned to such unit as of the date of the enactment of this Act) to support such unit for the purpose of investigating or prosecuting intellectual property crimes; and (3)implement a comprehensive program— (A)the purpose of which is to train agents of the Federal Bureau of Investigation in the investigation and prosecution of such crimes and the enforcement of laws related to intellectual property crimes; (B)that includes relevant forensic training related to investigating and prosecuting intellectual property crimes; and (C)that requires such agents who investigate or prosecute intellectual property crimes to attend the program annually. (b)
Intellectual property law enforcement coordinators
Not later than 120 days after the date of the enactment of this Act, the Attorney General shall assign one Federal prosecutor to the appropriate office of the Department of Justice located in Hong Kong and one Federal prosecutor to such an office located in Budapest, Hungary, to assist in the coordination of the enforcement of intellectual property laws between the United States and foreign nations. (c)
Organized crime task force
Not later than 120 days after the date of the enactment of this Act, the Attorney General, through the United States Attorneys’ Offices, the Computer Crime and Intellectual Property section, and the Organized Crime and Racketeering section of the Department of Justice, and in consultation with the Federal Bureau of Investigation and other Federal law enforcement agencies, shall create a Task Force to develop and implement a comprehensive, long-range plan to investigate and prosecute international organized crime syndicates engaging in or supporting crimes relating to the theft of intellectual property. (d)
Authorization
There are authorized to be appropriated to carry out this section $12,000,000 for each of fiscal years 2007 through 2011.
18.
Additional funding for resources to investigate and prosecute criminal activity involving computers
(a)
Additional funding for resources
(1)
Authorization
In addition to amounts otherwise authorized for resources to investigate and prosecute criminal activity involving computers, there are authorized to be appropriated for each of the fiscal years 2007 through 2011— (A)$10,000,000 to the Director of the Federal Bureau of Investigation; and (B)$10,000,000 to the Attorney General for the Criminal Division of the Department of Justice. (2)
Availability
Any amounts appropriated under paragraph (1) shall remain available until expended. (b)
Use of additional funding
Funds made available under subsection (a) shall be used by the Director of the Federal Bureau of Investigation and the Attorney General, for the Federal Bureau of Investigation and the Criminal Division of the Department of Justice, respectively, to— (1)hire and train law enforcement officers to— (A)investigate crimes committed through the use of computers and other information technology, including through the use of the Internet; and (B)assist in the prosecution of such crimes; and (2)procure advanced tools of forensic science to investigate, prosecute, and study such crimes.
19.
Technical amendments
(a)
Amendments to title 17, United States Code
(1)Section 109 (b)(4) of title 17, United States Code, is amended by striking 505, and 509 and inserting and 505. (2)Section 111 of title 17, United States Code, is amended— (A)in subsection (b), by striking and 509; (B)in subsection (c)— (i)in paragraph (2), by striking and 509; (ii)in paragraph (3), by striking sections 509 and 510 and inserting section 510; and (iii)in paragraph (4), by striking and section 509; and (C)in subsection (e)— (i)in paragraph (1), by striking sections 509 and 510 and inserting section 510; and (ii)in paragraph (2), by striking and 509. (3)Section 115(c) of title 17, United States Code, is amended— (A)in paragraph (3)(G)(i), by striking and 509; and (B)in paragraph (6), by striking and 509. (4)Section 119(a) of title 17, United States Code, is amended— (A)in paragraph (6), by striking sections 509 and 510 and inserting section 510; (B)in paragraph (7)(A), by striking and 509; (C)in paragraph (8), by striking and 509; and (D)in paragraph (13), by striking and 509. (5)Section 122 of title 17, United States Code, is amended— (A)in subsection (d), by striking and 509; (B)in subsection (e), by striking sections 509 and 510 and inserting section 510; and (C)in subsection (f)(1), by striking and 509. (6)Section 411(b) of title 17, United States Code, is amended by striking sections 509 and 510 and inserting section 510. (b)
Other amendments
Section 596(c)(2)(c) of the Tariff Act of 1950 (19 U.S.C. 1595a(c)(2)(c)) is amended by striking or 509.