[Congressional Record Volume 143, Number 103 (Monday, July 21, 1997)]
[Senate]
[Pages S7772-S7775]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Kyl):
  S. 1044. A bill to amend the provisions of titles 17 and 18, United 
States Code, to provide greater copyright protection by amending 
criminal copyright infringement provisions, and for other purposes; to 
the Committee on the Judiciary.


             THE CRIMINAL COPYRIGHT IMPROVEMENT ACT OF 1997

  Mr. LEAHY. Mr. President, I am pleased to introduce on behalf of 
Senator Kyl and myself, the Criminal Copyright Improvement Act of 1997. 
This bill would close a significant loophole in our copyright law and 
remove a significant hurdle in the Government's ability to bring 
criminal charges in certain cases of willful copyright infringement. By 
insuring better protection of the creative works available online, this 
bill will also encourage the continued growth of the Internet and our 
national information infrastructure.
  This bill reflects the recommendations and hard work of the 
Department of Justice, which worked with me to introduce a version of 
this legislation in the 104th Congress. I want to commend the 
Department for recognizing the need for action on this important 
problem. This bill was noted with approval in the September, 1995 
``Report of the Working Group on Intellectual Property Rights,'' 
chaired by Bruce Lehman, Commissioner of Patents and Trademarks, and 
has been cited by the Business Software Alliance as one of its major 
legislative priorities.
  For a criminal prosecution under current copyright law a defendant's 
willful copyright infringement must be ``for purposes of commercial 
advantage or private financial gain.'' Not-for-profit or noncommercial 
copyright infringement is not subject to criminal law enforcement, no 
matter how egregious the infringement or how great the loss to the 
copyright holder. This presents an enormous loophole in criminal 
liability for willful infringers who can use digital technology to make 
exact copies of copyrighted software and other digitally encoded works, 
and then use computer networks for quick, inexpensive and mass 
distribution of pirated, infringing works. This bill would close this 
loophole.
  United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994), is an 
example of the problem this criminal copyright bill would fix. In that 
case, an MIT student set up computer bulletin board systems on the 
Internet. Users posted and downloaded copyrighted software programs. 
This resulted in an estimated loss to the copyright holders of over $1 
million over a 6-week period. Since the student apparently did not 
profit from the software piracy, the Government could not prosecute him 
under criminal copyright law and instead charged him with wire fraud. 
The district court described the student's conduct ``at best * * * as 
irresponsible, and at worst as nihilistic, self-indulgent, and lacking 
in any fundamental sense of values.''

[[Page S7773]]

  Nevertheless, the Court dismissed the indictment in LaMacchia because 
it viewed copyright law as the exclusive remedy for protecting 
intellectual property rights. The Court expressly invited Congress to 
revisit the copyright law and make any necessary adjustments, stating:

       Criminal as well as civil penalties should probably attach 
     to willful, multiple infringements of copyrighted software 
     even absent a commercial motive on the part of the infringer. 
     One can envision ways that the copyright law could be 
     modified to permit such prosecution. But, ``[i]t is the 
     legislature, not the Court which is to define a crime, and 
     ordain its punishment.''

  This bill would ensure redress in the future for flagrant, willful 
copyright infringements in the following ways: First, serious acts of 
willful copyright infringement that result in multiple copies over a 
limited time period and cause significant loss to the copyright 
holders, would be subject to criminal prosecution.
  The bill would add a new offense prohibiting willful copyright 
infringement by reproduction or distributing, including by electronic 
means, during a 180-day period of 10 or more copies of 1 or more 
copyrighted works when the total retail value of the copyrighted work 
or the total retail value of the copies of such work is $5,000 or more. 
The bill makes clear that to meet the monetary threshold either the 
infringing copies or the copyrighted works must have a total retail 
value of $5,000 or more. The penalty would be a misdemeanor if the 
total retail value of the infringed or infringing works is between 
$5,000 and $10,000, and up to 3 years' imprisonment if the total retail 
value is $10,000 or more.
  By contrast, the penalties proposed for for-profit infringement are 
much stiffer. Specifically, under the existing 17 U.S.C. section 
506(a)(1), for-profit infringements in which the retail value of the 
infringing works is less than $2,500, would constitute a misdemeanor; 
and, if the retail value of the infringing works is $2,500 or more, the 
penalty is up to 5 years' imprisonment. As discussed below, this bill 
would change the monetary threshold amount for felony liability under 
section 506(a)(1) from $2,500 to $5,000.
  The monetary, time period and number of copies thresholds for the new 
offense, under 17 U.S.C. section 506(a)(2), for not-for-profit 
infringements, combined with the scienter requirement, would insure 
that criminal charges would only apply to willful infringements, not 
merely casual or careless conduct, that result in a significant level 
of harm to the copyright holder's rights. De minimis, not-for-profit 
violations, including making a single pirated copy or distributing 
pirated copies of works worth less than a total of $5,000, would not be 
subject to criminal prosecution.

  This bill would require that at least 10 or more copies of the 
infringed work be made, which is a quantity requirement that was not 
present for the new not-for-profit infringement offense in the version 
of the bill introduced in the 104th Congress. Thus, it would not be a 
crime under the bill to make a single copy of a copyrighted work, even 
if that work were very valuable and worth over $10,000. Such valuable 
intellectual property, whether or not copyrighted, that is stolen could 
be protected under the Economic Espionage Act of 1996, if it is a trade 
secret, or under the National Information Infrastructure Protection Act 
of 1996, which Senator Kyl and I sponsored, if the means used to 
complete the theft involved unauthorized computer access.
  Second, the bill would increase the monetary threshold for the 
existing criminal copyright offense, which makes it a misdemeanor to 
commit any willful infringement for commercial advantage or private 
financial gain, and a felony if 10 or more copies of works with a 
retail value of over $2,500 are made during a 180-day period. The bill 
would increase the monetary threshold in this offense from $2,500 to 
$5,000 for felony liability.
  Third, the bill would add a provision to treat more harshly 
recidivists who commit a second or subsequent felony criminal copyright 
offense. Under existing law, repeat offenders who commit a second or 
subsequent offense of copyright infringement for commercial advantage 
or private financial gain are subject to imprisonment for up to 10 
years. The bill would also double the term of imprisonment from 3 years 
to 6 years for a repeat offense for noncommercial copyright 
infringement. Such a calibration of penalties takes an important step 
in ensuring adequate deterrence of repeated willful copyright 
infringements.
  Fourth, the bill would extend the statute of limitations for criminal 
copyright infringement actions from 3 to 5 years, which is the norm for 
violations of criminal laws under title 18, including those protecting 
intellectual property.
  Finally, the bill would strengthen victims' rights by giving 
victimized copyright holders the opportunity to provide a victim impact 
statement to the sentencing court. In addition, the bill would direct 
the Sentencing Commission to set sufficiently stringent sentencing 
guideline ranges for defendants convicted of intellectual property 
offenses to deter these crimes.
  Technological developments and the emergence of the national 
information infrastructure in this country and the global information 
infrastructure worldwide hold enormous promise and present significant 
challenges for protecting creative works. Increasing accessibility and 
affordability of information and entertainment services are important 
goals that oftentimes require prudent balancing of public and private 
interests. In the area of creative rights, that balance has rested on 
encouraging creativity by ensuring rights that reward it while 
encouraging its public availability.
  The Copyright Act is grounded in the copyright clause of the 
Constitution and assures that ``contributors to the store of knowledge 
[receive] a fair return for their labors.'' Harper & Row ``The Nation 
Enterprises'', 471 U.S. 539, 546 (1985). I am mindful, however, that 
when we exercise our power to make criminal certain forms of copyright 
infringement, we should act with ``exceeding caution'' to protect the 
public's first amendment interest in the dissemination of ideas. 
Dowling v. United States, 473 U.S. 207, 221 (1985). I look forward to 
continuing to work with interested parties to make any necessary 
refinements to this bill to insure that we have struck the appropriate 
balance.
  I ask unanimous consent that my full statement be placed in the 
Record together with the bill and a sectional summary.
  There being no objection, the bill and summary were ordered to be 
printed in the Record, as follows:

                                S. 1044

       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 ``Criminal Copyright 
     Improvement Act of 1997''.

     SEC. 2. CRIMINAL INFRINGEMENT OF COPYRIGHTS.

       (a) Definition of Financial Gain.--Section 101 of title 17, 
     United States Code, is amended by inserting after the 
     undesignated paragraph relating to the term ``display'', the 
     following new paragraph:
       ``The term `financial gain' includes receipt of anything of 
     value, including the receipt of other copyrighted works.''.
       (b) Criminal Offenses.--Section 506(a) of title 17, United 
     States Code, is amended to read as follows:
       ``(a) Criminal Infringement.--Any person who infringes a 
     copyright willfully either--
       ``(1) for purposes of commercial advantage or private 
     financial gain; or
       ``(2) by the reproduction or distribution, including by 
     electronic means, during any 180-day period, of 10 or more 
     copies, of 1 or more copyrighted works, and the total retail 
     value of the copyrighted work or the total retail value of 
     the copies of such work is $5,000 or more,

     shall be punished as provided under section 2319 of title 
     18.''.
       (c) Limitation on Criminal Proceedings.--Section 507(a) of 
     title 17, United States Code, is amended by striking 
     ``three'' and inserting ``five''.
       (d) Criminal Infringement of a Copyright.--Section 2319 of 
     title 18, United States Code, is amended--
       (1) in subsection (b)--
       (A) in the matter preceding paragraph (1), by striking 
     ``subsection (a) of this section'' and inserting ``section 
     506(a)(1) of title 17'';
       (B) in paragraph (1)--
       (i) by inserting ``including by electronic means,'' after 
     ``if the offense consists of the reproduction or 
     distribution,''; and
       (ii) by striking ``with a retail value of more than 
     $2,500'' and inserting ``which have a total retail value of 
     more than $5,000''; and
       (C) in paragraph (3) by inserting before the semicolon 
     ``under this subsection''; and
       (2) by redesignating subsection (c) as subsection (e) and 
     inserting after subsection (b) the following:
       ``(c) Any person who commits an offense under section 
     506(a)(2) of title 17--

[[Page S7774]]

       ``(1) shall be imprisoned not more than 3 years, or fined 
     in the amount set forth in this title, or both, if the 
     offense consists of the reproduction or distribution, 
     including by electronic means, during any 180-day period, of 
     10 or more copies of 1 or more copyrighted works, and the 
     total retail value of the copyrighted work or the total 
     retail value of the copies of such work is $10,000 or more;
       ``(2) shall be imprisoned not more than 1 year or fined in 
     the amount set forth in this title, or both, if the offense 
     consists of the reproduction or distribution, including by 
     electronic means during any 180-day period, of 10 or more 
     copies of 1 or more copyrighted works, and the total retail 
     value of the copyrighted works or the total retail value of 
     the copies of such works is $5,000 or more; and
       ``(3) shall be imprisoned not more than 6 years, or fined 
     in the amount set forth in this title, or both, if the 
     offense is a second or subsequent felony offense under 
     paragraph (1).
       ``(d)(1) During preparation of the presentence report 
     pursuant to rule 32(c) of the Federal Rules of Criminal 
     Procedure, victims of the offense shall be permitted to 
     submit, and the probation officer shall receive, 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) Persons permitted to submit victim impact statements 
     shall include--
       ``(A) producers and sellers of legitimate works affected by 
     conduct involved in the offense;
       ``(B) holders of intellectual property rights in such 
     works; and
       ``(C) the legal representatives of such producers, sellers, 
     and holders.''.
       (e) Unauthorized Fixation and Trafficking of Live Musical 
     Performances.--Section 2319A of title 18, United States Code, 
     is amended--
       (1) by redesignating subsections (d) and (e) as subsections 
     (e) and (f), respectively; and
       (2) by inserting after subsection (c) the following:
       ``(d) Victim Impact Statement.--(1) During preparation of 
     the presentence report pursuant to rule 32(c) of the Federal 
     Rules of Criminal Procedure, victims of the offense shall be 
     permitted to submit, and the probation officer shall receive, 
     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) Persons permitted to submit victim impact statements 
     shall include--
       ``(A) producers and sellers of legitimate works affected by 
     conduct involved in the offense;
       ``(B) holders of intellectual property rights in such 
     works; and
       ``(C) the legal representatives of such producers, sellers, 
     and holders.''.
       (f) Trafficking in Counterfeit Goods or Services.--Section 
     2320 of title 18, United States Code, is amended--
       (1) by redesignating subsection (d) as subsection (f) and 
     transferring such subsection to the end of the section;
       (2) by redesignating subsection (e) as subsection (d); and
       (3) by inserting after subsection (d) (as redesignated by 
     paragraph (2) of this subsection) the following:
       ``(e)(1) During preparation of the presentence report 
     pursuant to rule 32(c) of the Federal Rules of Criminal 
     Procedure, victims of the offense shall be permitted to 
     submit, and the probation officer shall receive, 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) Persons permitted to submit victim impact statements 
     shall include--
       ``(A) producers and sellers of legitimate goods or services 
     affected by conduct involved in the offense;
       ``(B) holders of intellectual property rights in such goods 
     or services; and
       ``(C) the legal representatives of such producers, sellers, 
     and holders.''.
       (g) Directive to Sentencing Commission.--
       (1) In general.--Under the authority of the Sentencing 
     Reform Act of 1984 (Public Law 98-473; 98 Stat. 1987) and 
     section 21 of the Sentencing Act of 1987 (Public Law 100-182; 
     101 Stat. 1271; 18 U.S.C. 994 note) (including the authority 
     to amend the sentencing guidelines and policy statements), 
     the United States Sentencing Commission shall ensure that the 
     applicable guideline range for a defendant convicted of a 
     crime against intellectual property (including offenses set 
     forth at section 506(a) of title 17, United States Code, and 
     sections 2319, 2319A and 2320 of title 18, United States 
     Code)--
       (A) is sufficiently stringent to deter such a crime;
       (B) adequately reflects the additional considerations set 
     forth in paragraph (2) of this subsection; and
       (C) takes into account more than minimal planning and other 
     aggravating factors.
       (2) Implementation.--In implementing paragraph (1), the 
     Sentencing Commission shall ensure that the guidelines 
     provide for consideration of the retail value of the 
     legitimate items that are infringed upon and the quantity of 
     items so infringed.
                                  ____


          Criminal Copyright Improvement Act of 1997--Summary

       Sec. 1. Short Title. The Act may be cited as the ``Criminal 
     Copyright Improvement Act of 1997.''
       Sec. 2. Criminal Infringement of Copyrights. As outlined 
     below, the bill adds a new definition for ``financial gain'' 
     to 17 U.S.C. Sec.  101, and amends the criminal copyright 
     infringement provisions in titles 17 and 18. The bill also 
     ensures that victims of criminal copyright infringement have 
     an opportunity to provide victim impact statements to the 
     court about the impact of the offense. Finally, the bill 
     directs the Sentencing Commission to ensure that guideline 
     ranges are sufficiently stringent to deter criminal 
     infringement of intellectual property rights, and provide for 
     consideration of the retail value and quantity of the 
     legitimate, infringed-upon items and other aggravating 
     factors.
       (a) Definition of Financial Gain. Current copyright law 
     provides criminal penalties when a copyright is willfully 
     infringed for purposes of ``commercial advantage or private 
     financial gain.'' The bill would add a definition of 
     ``financial gain'' to the copyright law, 17 U.S.C. Sec.  101, 
     and clarify that this term means the ``receipt of anything of 
     value, including the receipt of other copyrighted works.'' 
     This definition would make clear that ``financial gain'' 
     includes bartering for, and the trading of, pirated software.
       (b) Criminal Offenses. The requirement in criminal 
     copyright infringement actions under 17 U.S.C. Sec.  506(a) 
     that the defendant's willful copyright infringement be ``for 
     purposes of commercial advantage or private financial gain,'' 
     has allowed serious incidents of copyright infringement to 
     escape successful criminal prosecution.
       For example, in United States v. LaMacchia, 871 F. Supp. 
     535 (D. Mass. 1994), the defendant allegedly solicited users 
     of a computer bulletin board system on the Internet to submit 
     copies of copyrighted software programs for posting on the 
     system, and then encouraged users to download copies of the 
     illegally copied programs, resulting in an estimated loss of 
     revenue to the copyright holders of over one million dollars 
     over a six week period. Absent evidence of ``commercial 
     advantage or private financial gain,'' the defendant was 
     charged with conspiracy to violate the wire fraud statute, 18 
     U.S.C. Sec.  1343. The district court described the 
     defendant's conduct as ``heedlessly irresponsible, and at 
     worst as nihilistic, self-indulgent, and lacking in any 
     fundamental sense of values,'' but nevertheless dismissed the 
     indictment on the grounds that acts of copyright infringement 
     may not be prosecuted under the wire fraud statute.
       The bill would add a new criminal copyright violation to 
     close this loophole in circumstances where no commercial 
     advantage or private financial gain may be shown. New section 
     17 U.S.C. Sec.  506(a)(2) would prohibit willfully infringing 
     a copyright by reproducing or distributing, including by 
     electronic means, during any 180-day period, 10 or more 
     copies of 1 or more copyrighted works when the total retail 
     value of the copyrighted works or of the copies of such works 
     is $5,000 or more. The penalty would be a misdemeanor if the 
     total retail value of the infringed or infringing works is 
     between $5,000 and $10,000, and up to 3 years' imprisonment 
     if the total retail value is $10,000 or more.
       Not-for-profit willful infringement would thus be subject 
     to similar threshold requirements as for a felony offense of 
     willful infringement for commercial advantage or private 
     financial gain under 17 U.S.C. Sec.  506(a)(1), which 
     requires that 10 or more copies of copyrighted works with a 
     total retail value of more than $5000 be made during a 180-
     day period. The penalties applicable to an offense under 17 
     U.S.C. Sec.  506(a)(1) are more stringent than for the new 
     offense under 17 U.S.C. Sec.  506(a)(2). Specifically, under 
     17 U.S.C. Sec.  506(a)(1), if the retail value of the 
     infringing works is less than $5,000, the penalty is a 
     misdemeanor; and, if the retail value of the infringing works 
     is $5,000 or more, the penalty is up to 5 years' 
     imprisonment.
       The monetary, timing, and number of copies prerequisites 
     for the new offense under 17 U.S.C. Sec.  506(a)(2), combined 
     with the scienter requirement, insure that merely casual or 
     careless conduct resulting in distribution of only a few 
     infringing copies would not be subject to criminal 
     prosecution. In other words, criminal charges would only 
     apply to not-for-profit willful infringements of 10 or more 
     copies during a limited time period resulting in a 
     significant level of harm of over $5,000 to the copyright 
     holder's rights. De minimis violations would not be subject 
     to criminal prosecution.
       The offenses under Sec.  506(a)(1) and (a)(2) would 
     overlap. For example, someone selling 10 or more copies of a 
     copyrighted work during a 180-day period may violate both 
     provisions if the value of those copyrighted works is $5,000 
     or more. The key, however, is that the new provision in Sec.  
     506(a)(2) requires that the infringement involve, at a 
     minimum, harm in the amount of $5,000. By contrast, any 
     offense, regardless of value, involving private financial 
     gain or commercial advantage constitutes at least a 
     misdemeanor, and the crime reaches felony level under the 
     bill once the retail value of the copyrighted or infringing 
     material exceeds $5,000.
       The new crime would also require that at least 10 or 
     more copies of the infringed work be made. It would not be 
     a crime under the bill to make a single copy of a 
     copyrighted work, even if it were very valuable and worth 
     over $10,000. Such valuable intellectual property, whether 
     or not copyrighted,

[[Page S7775]]

     that is stolen could be protected under the Economic 
     Espionage Act of 1996 (if it is a trade secret), or under 
     the National Information Infrastructure Protection Act of 
     1996, if the means used to complete the theft involved 
     unauthorized computer access.
       (c) Limitation on Criminal Procedures. The bill would amend 
     17 U.S.C. Sec.  507(a) to extend the statute of limitations 
     for criminal copyright infringement actions from three to 
     five years. A five year statute of limitations is the norm 
     for violations of criminal laws under Title 18, including 
     those that relate to protecting intellectual property. See, 
     e.g., 18 U.S.C. Sec.  2319A (Unauthorized fixation of and 
     Trafficking in sound recordings) and Sec.  2320 (Trafficking 
     in counterfeit goods or services).
       (d) Criminal Infringement of a Copyright. The bill would 
     amend the penalty provisions in 18 U.S.C. Sec.  2319 to 
     comport with the proposed amendments to 17 U.S.C. Sec.  
     506(a), and would also add a new subsection providing for a 
     victim impact statement.
       First, under current law, willful copyright infringement 
     for commercial advantage or private financial gain is a 
     felony punishable by up to five years' imprisonment only when 
     the offense consists of the reproduction or distribution 
     during a 180-day period of ten or more copies with a retail 
     value of over $2500. Willful infringements for commercial 
     advantage, which do not satisfy the monetary threshold or 
     quantity requirement during the statutory time period, are 
     misdemeanor offenses. The bill would modify the felony 
     penalty provision for willful copyright infringement for 
     commercial advantage or private financial gain to cover 
     reproductions or distributions ``including by electronic 
     means''. The bill would also change the monetary threshold 
     from $2,500 to $5,000.
       Second, the bill would provide a new penalty in 18 U.S.C. 
     Sec.  2319(c) for the new offense in 17 U.S.C. Sec.  
     506(a)(2) of willfully infringing a copyright by reproduction 
     or distribution, including by electronic means, during a 180-
     day period of 10 or more copies of copyright works when the 
     total retail value of the copyrighted work or of the copies 
     of such work is $5,000 or more. Violations would be 
     punishable by up to 1 year imprisonment and fine if the total 
     retail value of the infringed or infringing works is between 
     $5,000 and $10,000, and by up to 3 years' imprisonment and a 
     fine if the total retail value is $10,000 or more.
       The penalty structure under the bill is as follows:

----------------------------------------------------------------------------------------------------------------
      Infringed work values--            Under $5,000           $5,000 to $10,000             Over $10,000
----------------------------------------------------------------------------------------------------------------
Willful infringement for            Misdemeanor..........  FELONY (up to 5 years), if  FELONY (up to 5 years),
 commercial advantage/private                               10 or more copies within    if 10 or more copies
 financial gain [17 U.S.C. Sec.                             180-day period.             within 180-day period.
 506(a)(1)].
Willful infringement by             No criminal liability  Misdemeanor, if 10 or more  FELONY (up to 3 years),
 reproduction or distribution of                            copies within 180-day       if 10 or more copies
 works with value over $10,000 for                          period.                     within 180-day period.
 any reason [17 U.S.C. Sec.
 506(a)(2)].
----------------------------------------------------------------------------------------------------------------

       Third, the bill would add a provision to treat more harshly 
     recidivists who commit a second or subsequent felony offense 
     under new 18 U.S.C. 2319(c), which refers to new 17 U.S.C. 
     Sec.  506(a)(2). Under existing law, 18 U.S.C. 2319(b)(2), 
     recidivists are subject to up to ten years' imprisonment and 
     a fine for a second felony offense for willful copyright 
     infringement for commercial advantage or private financial 
     gain. The bill would double the penalty to up to six years' 
     imprisonment and a fine for a second felony offense under new 
     17 U.S.C. Sec.  506(a)(2) for not-for-profit willful 
     copyright infringement.
       Finally, the bill would add new subsection Sec.  2319(d), 
     requiring that victims of the offense, including producers 
     and sellers of legitimate, infringed-upon goods or services, 
     holders of intellectual property rights and their legal 
     representatives, be given the opportunity to provide a victim 
     impact statement to the probation officer preparing the 
     presentence report. The bill directs that the statement 
     identify the victim of the offense and the extent and scope 
     of the injury and loss suffered, including the estimated 
     economic impact of the offense on that victim.
       (e) Unauthorized Fixation and Trafficking of Live Musical 
     Performances. The bill would add new subsection 18 U.S.C. 
     Sec.  2319A(d) requiring that victims of the offense, 
     including producers and sellers of legitimate, infringed-upon 
     goods or services, holders of intellectual property rights 
     and their legal representatives, be given the opportunity to 
     provide a victim impact statement to the probation officer 
     preparing the presentence report. The bill directs that the 
     statement identify the victim of the offense and the extent 
     and scope of the injury and loss suffered, including the 
     estimated economic impact of the offense on that victim.
       (f) Trafficking in Counterfeit Goods or Services. The bill 
     would add new subsection 18 U.S.C. Sec.  2320(e) requiring 
     that victims of the offense, including producers and sellers 
     of legitimate, infringed-upon goods or services, holders of 
     intellectual property rights and their legal representatives, 
     be given the opportunity to provide a victim impact statement 
     to the probation officer preparing the presentence report. 
     The bill directs that the statement identify the victim of 
     the offense and the extent and scope of the injury and loss 
     suffered, including the estimated economic impact of the 
     offense on that victim.
       (g) Directive to Sentencing Commission. The Sentencing 
     Commission currently takes the view that criminal copyright 
     infringement and trademark counterfeiting are analogous to 
     fraud-related offenses, and that appropriate sentences are to 
     be calculated according to the retail value of the infringing 
     items, rather than of the legitimate copyrighted items which 
     are infringed. This may understate the harm. The bill would 
     direct the Sentencing Commission to ensure that applicable 
     guideline ranges for criminal copyright infringement and 
     violations of 18 U.S.C. Sec. Sec.  2319, 2319A and 2320 are 
     sufficiently stringent to deter such crimes, provide for 
     consideration of the retail value and quantity of the 
     legitimate, infringed-upon items, and take into account more 
     than minimal planning and other aggravating factors.
                                 ______