[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2317 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 2317

To amend titles 17 and 18, United States Code, and the Trademark Act of 
    1946 to strengthen and harmonize the protection of intellectual 
                   property, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            November 7, 2007

 Mr. Leahy (for himself and Mr. Cornyn) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To amend titles 17 and 18, United States Code, and the Trademark Act of 
    1946 to strengthen and harmonize the protection of intellectual 
                   property, 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 Enforcement 
Act of 2007''.

SEC. 2. 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 
                Attotrney 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. 3. 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 1 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 1 Federal prosecutor to the appropriate office of 
the Department of Justice located in Hong Kong and 1 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 2008 
through 2011.

SEC. 4. 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 2008 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.

SEC. 5. REGISTRATION IN CIVIL INFRINGEMENT ACTIONS.

    (a) Limitation to Civil Actions; 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''; and
                    (B) in the second sentence, by striking ``an 
                action'' and inserting ``a civil action'';
            (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:
    ``(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) Technical and 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.''.

SEC. 6. CIVIL REMEDIES FOR INFRINGEMENT.

    (a) In General.--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 things 
        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.''.
    (b) Protective Orders for Seized Records.--Section 34(d)(1)(A) 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. 1116(d)(1)(A)) is amended by adding ``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.'' 
after the first sentence.

SEC. 7. CRIMINAL INFRINGEMENT.

    (a) 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.''.
    (b) Seizures and Forfeitures.--
            (1) Repeal.--Section 509 of title 17, United States Code, 
        is repealed.
            (2) Technical and conforming amendment.--The table of 
        sections for chapter 5 of title 17, United States Code, is 
        amended by striking the item relating to section 509.

SEC. 8. 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) Technical and 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:

       ``CHAPTER 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               601''.
                            Exportation.

SEC. 9. DEFINING TERMS RELATING TO CIRCUMVENTION OF COPYRIGHT 
              PROTECTION SYSTEMS.

    Section 1201 of title 17, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (2), by striking ``import,''; and
                    (B) in paragraph (3)--
                            (i) in subparagraph (A), by striking 
                        ``and'' after the semicolon;
                            (ii) in subparagraph (B), by striking the 
                        period and inserting ``; and'';
                            (iii) by redesignating subparagraph (B) as 
                        subparagraph (C), and inserting after 
                        subparagraph (A) the following:
                    ``(B) the term `financial gain' includes receipt, 
                or expectation of receipt, of anything of value, 
                including the receipt of other copyrighted works;''; 
                and
                            (iv) by adding at the end the following:
                    ``(C) 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
            (2) 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'';
                            (iii) by redesignating subparagraph (B) as 
                        subparagraph (C), and inserting after 
                        subparagraph (A) the following:
                    ``(B) the term `financial gain' includes receipt, 
                or expectation of receipt, of anything of value, 
                including the receipt of other copyrighted works;''; 
                and
                            (iv) by adding at the end the following:
                    ``(D) 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.''.

SEC. 10. FORFEITURE UNDER ECONOMIC ESPIONAGE ACT.

    Section 1834 of title 18, United States Code, is amended to read as 
follows:
``Sec. 1834. Criminal forfeiture
    ``Forfeiture, destruction, and restitution relating to this chapter 
shall be subject to section 2323, to the extent provided in that 
section, in addition to any other similar remedies provided by law.''.

SEC. 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; and
                    (C) by striking ``Whoever'' and inserting ``(1) 
                Whoever''.
            (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).

SEC. 12. UNAUTHORIZED RECORDING OF MOTION PICTURES.

    Section 2319B(b) of title 18, United States Code, 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.''.

SEC. 13. TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES.

    Section 2320(b) of title 18, United States Code, 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.''.

SEC. 14. FORFEITURE, DESTRUCTION, AND RESTITUTION.

    (a) In General.--Chapter 113 of title 18, United States Code, is 
amended by adding at the end the following:
``Sec. 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 article the making or trafficking of 
                which is prohibited under section 506 or 1204 of title 
                17, or section 2318, 2319, 2319A, 2319B, or 2320, or 
                chapter 90, of this title.
                    ``(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 seizure or civil 
        forfeiture under this section. At the conclusion of the 
        forfeiture proceedings, unless otherwise requested by an agency 
        of the United States, 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, unless otherwise 
                requested by an agency of the United States--
                            ``(i) shall order that any forfeited 
                        article or component of an article bearing or 
                        consisting of a counterfeit mark be destroyed 
                        or otherwise disposed of according to law; and
                            ``(ii) shall order that any infringing 
                        items or other property described in subsection 
                        (a)(1)(A) and forfeited under paragraph (1) of 
                        this subsection be destroyed or otherwise 
                        disposed of according to law.
    ``(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 sections 
3556, 3663A, and 3664 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) Technical and Conforming Amendment.--The table of sections for 
chapter 113 of title 18, United States Code, is amended by adding at 
the end the following:

``2323. Forfeiture, destruction, and restitution.''.

SEC. 15. TECHNICAL AND CONFORMING 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''.
                                 <all>