[Congressional Record Volume 150, Number 39 (Thursday, March 25, 2004)]
[Senate]
[Pages S3189-S3191]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Hatch):
  S. 2237. A bill to amend chapter 5 of title 17, United States Code, 
to authorize civil copyright enforcement by the Attorney General, and 
for other purposes; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, the advent of the digital age promises the 
efficient distribution of music, films, books, and software on the 
Internet, and an easily-accessed, unprecedented variety of content 
online. Unfortunately, to see this promise realized, we must overcome 
some of the challenges presented by digital content distribution. Today 
I am pleased that Senator Hatch is joining me in sponsoring the 
``Protecting Intellectual Rights Against Theft and Expropriation 
(PIRATE) Act of 2004,'' which will respond to one such challenge. It 
will bring the resources and expertise of the United States Attorneys' 
Offices to bear on wholesale copyright infringers.
  The very ease of duplication and distribution that is the hallmark of 
digital content has meant that piracy of that content is just as easy. 
The very real--and often realized--threat that creative works will 
simply be duplicated and distributed freely online has restricted, 
rather than enhanced, the amount and variety of creative works one can 
receive over the Internet. Part of combating piracy includes offering a 
legal alternative to it. Another important part is enforcing the rights 
of copyright owners. Senator Hatch and I have been working with 
artists, authors, and software developers to create an environment in 
which copyright is protected, so that we can all enjoy American 
creativity, and so that copyright owners can be paid for their work.
  For too long, Federal prosecutors have been hindered in their pursuit 
of pirates, by the fact that they were limited to bringing criminal 
charges with high burdens of proof. In the world of copyright, a 
criminal charge is unusually difficult to prove because the defendant 
must have known that his conduct was illegal and he must have willfully 
engaged in the conduct anyway. For this reason prosecutors can rarely 
justify bringing criminal charges, and copyright owners have been left 
alone to fend for themselves, defending their rights only where they 
can afford to do so. In a world in which a computer and an Internet 
connection are all the tools you need to engage in massive piracy, this 
is an intolerable predicament.
  Some steps have already been taken. The Allen-Leahy Amendment to the 
Foreign Operations Appropriations Bill, on Combating Piracy of U.S. 
Intellectual Property in Foreign Countries, provided $2.5 million for 
the Department of State to assist foreign countries in combating piracy 
of U.S. copyright works. By providing equipment and training to law 
enforcement officers, it will help those countries that are not members 
of OECD (Organization for Economic Cooperation & Development) to 
enforce intellectual property protections.
  The PIRATE Act will give the Attorney General civil enforcement 
authority for copyright infringement. It also calls on the Justice 
Department to initiate training and pilot programs to ensure that 
Federal prosecutors across the country are aware of the many difficult 
technical and strategic problems posed by enforcing copyright law in 
the digital age.
  This new authority does not supplant either the criminal provisions 
of the Copyright Act, or the remedies available to the copyright owner 
in a private suit. Rather, it allows the government to bring its 
resources to bear on this immense problem, and to ensure that more 
creative works are made available online, that those works are more 
affordable, and that the people who work to bring them to us are paid 
for their efforts.
  The challenges presented by digital content are multifaceted, and no 
single response will resolve all of them. We must, and we will, offer a 
broad array of solutions that taken together will help ensure the 
protection of intellectual property, encourage the deployment of 
digital content, and allow technology to develop unimpeded. This bill 
is just one step in this process. I am working with colleagues, members 
of the private sector, and officials from the Executive Branch, to 
craft careful and effective responses to other such challenges in the 
intellectual property arenas.
  I hope that my colleagues support the ``Protecting Intellectual 
Rights Against Theft and Expropriation (PIRATE) Act of 2004,'' and I 
ask unanimous consent that the text of this bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2237

       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 ``Protecting Intellectual 
     Rights Against Theft and Expropriation Act of 2004''.

     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.--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

[[Page S3190]]

       (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 Attorney 
     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. AUTHORIZATION OF FUNDING FOR TRAINING AND PILOT 
                   PROGRAM.

       (a) Training and Pilot Program.--Not later than 180 days 
     after enactment of this Act, the Attorney General shall 
     develop a program to ensure effective implementation and use 
     of the authority for civil enforcement of the copyright laws 
     by--
       (1) establishing training programs, including practical 
     training and written materials, for qualified personnel from 
     the Department of Justice and United States Attorneys Offices 
     to educate and inform such personnel about--
       (A) resource information on intellectual property and the 
     legal framework established both to protect and encourage 
     creative works as well as legitimate uses of information and 
     rights under the first amendment of the United States 
     Constitution;
       (B) the technological challenges to protecting digital 
     copyrighted works from online piracy;
       (C) guidance on and support for bringing copyright 
     enforcement actions against persons engaging in infringing 
     conduct, including model charging documents and related 
     litigation materials;
       (D) strategic issues in copyright enforcement actions, 
     including whether to proceed in a criminal or a civil action;
       (E) how to employ and leverage the expertise of technical 
     experts in computer forensics;
       (F) the collection and preservation of electronic data in a 
     forensically sound manner for use in court proceedings;
       (G) the role of the victim copyright owner in providing 
     relevant information for enforcement actions and in the 
     computation of damages; and
       (H) the appropriate use of injunctions, impoundment, 
     forfeiture, and related authorities in copyright law;
       (2) designating personnel from at least 4 United States 
     Attorneys Offices to participate in a pilot program designed 
     to implement the civil enforcement authority of the Attorney 
     General under section 506a of title 17, United States Code, 
     as added by this Act; and
       (3) reporting to Congress annually on--
       (A) the use of the civil enforcement authority of the 
     Attorney General under section 506a of title 17, United 
     States Code, as added by this Act; and
       (B) the progress made in implementing the training and 
     pilot programs described under paragraphs (1) and (2) of this 
     subsection.
       (b) Annual Report.--The report under subsection (a)(3) may 
     be included in the annual performance report of the 
     Department of Justice and shall include--
       (1) with respect to civil actions filed under section 506a 
     of title 17, United States Code, as added by this Act--
       (A) the number of investigative matters received by the 
     Department of Justice and United States Attorneys Offices;
       (B) the number of defendants involved in those matters;
       (C) the number of civil actions filed and the number of 
     defendants involved;
       (D) the number of civil actions resolved or terminated;
       (E) the number of defendants involved in those civil 
     actions;
       (F) the disposition of those civil actions, including 
     whether the civil actions were settled, dismissed, or 
     resolved after a trial;
       (G) the dollar value of any civil penalty imposed and the 
     amount remitted to any copyright owner; and
       (H) other information that the Attorney General may 
     consider relevant to inform Congress on the effective use of 
     the civil enforcement authority;
       (2) a description of the training program and the number of 
     personnel who participated in the program; and
       (3) the locations of the United States Attorneys Offices 
     designated to participate in the pilot program.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated $2,000,000 for fiscal year 2005 to carry 
     out this section.

  Mr. HATCH. Mr. President, I rise to join Senator Leahy in sponsoring 
the Protecting Intellectual Rights Against Theft and Expropriation 
Act--the ``PIRATE Act''--a measure that will provide the Department of 
Justice with tools to combat the rampant copyright piracy facilitated 
by peer-to-peer filesharing software.
  Let me underscore at the outset that our bill does not expand the 
scope of the existing powers of the Department of Justice to prosecute 
persons who infringe copyrights. Instead, our proposal will assist the 
Department in exercising existing enforcement powers through a civil 
enforcement mechanism. After considerable study, we have concluded that 
this is the most appropriate mechanism.
  Peer-to-peer file sharing software has created a dilemma for law-
enforcement agencies. Millions of otherwise law-abiding American 
citizens are using this software to create and redistribute infringing 
copies of popular music, movies, computer games and software.
  Some who copy these works do not fully understand the illegality, or 
perhaps the serious consequences, of their infringing activities. This 
group of filesharers should not be the focus of federal law-enforcement 
efforts. Quite frankly, the distributors of most filesharing software 
have failed to adequately educate the children and young people who use 
their software about its legal and illegal uses.
  A second group of filesharers consists of those who copy and 
redistribute copyrighted works even though they do know that doing so 
violates federal law. In many cases, these are college students or 
young people who think that they will not get caught. Many of these 
filesharers are engaging in acts that could now subject them to federal 
criminal prosecution for copyright piracy.
  It is critical that we bring the moral force of the government to 
bear against those who knowingly violate the federal copyrights 
enshrined in our Constitution. But many of us remain concerned that 
using criminal law enforcement remedies to act against these infringers 
could have an overly-harsh effect, perhaps, for example, putting 
thousands of otherwise law-abiding teenagers and college students in 
jail and branding them with the lifelong stigma of a felony criminal 
conviction.
  The bill I join Senator Leahy in sponsoring today will allow the 
Department of Justice to supplement its existing criminal-enforcement 
powers through the new civil-enforcement mechanism. As a result, the 
Department will be able to impose stiff penalties for violating 
copyrights, but can avoid criminal action when warranted.
  In advancing this measure, I must note that I view this civil-
enforcement authority as another tool, hopefully a transitional tool at 
that. In the long run, I believe that we must find better mechanisms to 
ensure that our most vulnerable citizens--our children--are not being 
constantly tempted to infringe the copyrights that have made America a 
world leader in the production of creative works.
  Only recently has America faced the specter of widespread copyright-
enforcement actions against individual users of copyrighted works. For 
nearly 200 years, copyright enforcement was rarely directed against the 
millions of ordinary American citizens who use and enjoy copyrighted 
works. Instead, creators and distributors of copyrighted content worked 
together to negotiate the complex licensing agreements and 
technological protections needed to distribute copyrighted works in 
ways that accommodated both the expectations of users and the 
copyrights of artists.
  But recently, some unscrupulous corporations may have exploited new 
technologies and discovered that the narrow scope of civil contributory 
liability for copyright infringement can be utilized so that ordinary 
consumers and children become, in effect, ``human shields'' against 
copyright owners and law enforcement agencies. Unscrupulous 
corporations could distribute to children and students a ``piracy 
machine'' designed to tempt them to engage in copyright piracy or 
pornography distribution.
  Unfortuantely, piracy and pornography could then become the 
cornerstones of a ``business model.'' At first, children and students 
would be tempted to infringe copyrights or redistribute pornography. 
Their illicit activities then generate huge advertising revenues for 
the architects of piracy. Those children and students then become 
``human shields'' against enforcement efforts that would disrupt the 
flow of those revenues. Later, large user-bases and the threat of more 
piracy would become levers to force American artists to enter licensing 
agreements in which they pay the architects of piracy to distribute and 
protect their works on the Internet.
  Federal enforcement action is surely warranted if such ``business 
models''

[[Page S3191]]

are driving the increasing ease of piracy on peer-to-peer filesharing 
networks. Such business models exploit children, cheat artists, and 
threaten the future development of commerce on the Internet.
  Indeed, our government recognizes that its enforcement powers are 
appropriate when protecting intellectual property and public safety. 
Recently, in a speech to the United States Chamber of Commerce, Deputy 
Attorney General James B. Comey, Jr. asserted that the Department of 
Justice should assist private enforcement of intellectual property 
rights if any of three criteria are met: (1) the level of piracy 
becomes particularly egregious; (2) public health and safety are put at 
risk; or (3) private civil remedies fail to adequately deter illegal 
conduct.
  In the case of peer-to-peer filesharing, all three criteria may be 
met. The level of piracy on these networks is not merely egregious, it 
is unprecedented. Public health and safety are also directly threatened 
by business models that tempt children toward piracy and pornography 
and then use them as ``human shields'' against law enforcement.
  Finally, the recording industry and other affected rights holders 
have tried--so far largely unsuccessfully--to use civil remedies to 
halt the operations of those who would profit by turning teenagers and 
college students into copyright pirates or pornography distributors.
  As a result, our creative industries' only remaining option to deter 
piracy is to bring enough civil enforcement actions against users of 
filesharing software. Tens of thousands of continuing civil enforcement 
actions might be needed to generate the necessary deterrence. I doubt 
that any nongovernmental organization has the resources or moral 
authority to pursue such a campaign.
  If enforcement actions against end-users were really the best or only 
way to enforce copyrights on the Internet, then civil enforcement 
authority would be necessary. But there may be other ways to combat 
this piracy at the root, not at the branch. I thus invite the 
Department of Justice and other federal law enforcement agencies to 
work with me, Senator Leahy and other members of the Judiciary 
Committee to determine how the enforcement powers of the federal 
government can best be deployed to solve the problems arising from 
piracy and pornography on peer-to-peer filesharing networks.
  I also understand that others may be developing proposals to increase 
criminal enforcement authority against piracy, and I hope to work with 
them on such proposals. Today, I stand with Senator Leahy to buttress 
the enforcement of copyrights by enabling the Department of Justice to 
proceed with a robust program of civil enforcement.
  For the reasons I have just delineated, I urge my colleagues to join 
us in supporting the Protecting Intellectual Rights Against Theft and 
Expropriation Act.
                                 ______