[Congressional Record Volume 150, Number 119 (Tuesday, September 28, 2004)]
[House]
[Pages H7654-H7660]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PIRACY DETERRENCE AND EDUCATION ACT OF 2004
Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass
the bill (H.R. 4077) to enhance criminal enforcement of the copyright
laws, to educate the public about the application of copyright law to
the
[[Page H7655]]
Internet, and for other purposes, as amended.
The Clerk read as follows:
H.R. 4077
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
TITLE I--PIRACY DETERRENCE IN EDUCATION
SEC. 101. SHORT TITLE.
This title may be cited as the ``Piracy Deterrence and
Education Act of 2004''.
SEC. 102. FINDINGS.
The Congress finds as follows:
(1) The Internet, while changing the way our society
communicates, has also changed the nature of many crimes,
including the theft of intellectual property.
(2) Trafficking in infringing copyrighted works through
increasingly sophisticated electronic means, including peer-
to-peer file trading networks, Internet chat rooms, and news
groups, threatens lost jobs, lost income for creators, lower
tax revenue, and higher prices for honest purchasers.
(3) The most popular peer-to-peer file trading software
programs have been downloaded by computer users over
600,000,000 times. At any one time there are over 3,000,000
users simultaneously using just one of these services. Each
month, on average, over 2,300,000,000 digital-media files are
transferred among users of peer-to-peer systems.
(4) Many computer users simply believe that they will not
be caught or prosecuted for their conduct.
(5) The security and privacy threats posed by certain peer-
to-peer networks extend beyond users inadvertently enabling a
hacker to access files. Millions of copies of one of the most
popular peer-to-peer networks contain software that could
allow an independent company to take over portions of users'
computers and Internet connections and has the capacity to
keep track of users' online habits.
(6) In light of these considerations, Federal law
enforcement agencies should actively pursue criminals who
steal the copyrighted works of others, and prevent such
activity through enforcement and awareness. The public should
be educated about the security and privacy risks associated
with being connected to certain peer-to-peer networks.
SEC. 103. VOLUNTARY PROGRAM OF DEPARTMENT OF JUSTICE.
(a) Voluntary Program.--The Attorney General is authorized
to establish a program under which the Department of Justice,
in cases where persons who are subscribers of Internet
service providers appear to the Department of Justice to be
engaging in copyright infringing conduct in the course of
using such Internet service, would send to the Internet
service providers warning letters that warn such persons of
the penalties for such copyright infringement. The Internet
service providers may forward the warning letters to such
persons.
(b) Limitations on Program.--
(1) Extent and length of program.--The program under
subsection (a) shall terminate at the end of the 18-month
period beginning on the date of the enactment of this Act and
shall be limited to not more than 10,000 warning letters.
(2) Privacy protections.--No Internet service provider that
receives a warning letter from the Department of Justice
under subsection (a) may disclose to the Department any
identifying information about the subscriber that is the
subject of the warning letter except pursuant to court order
or other applicable legal process that requires such
disclosure.
(c) Reimbursement of Internet Service Providers.--The
Department of Justice shall reimburse Internet service
providers for all reasonable direct costs incurred by such
service providers in identifying the proper recipients of the
warning letters under subsection (a) and forwarding the
letters.
(d) Reports to Congress.--The Attorney General shall submit
to the Congress a report on the program established under
subsection (a) both at the time the program is initiated and
at the conclusion of the program.
(e) Inadmissibility of Evidence.--The fact that an Internet
service provider participated in the program under subsection
(a), received a warning letter from the Department of
Justice, was aware of the contents of the warning letter, or
forwarded the warning letter to a subscriber, shall not be
admissible in any legal proceeding brought against the
Internet service provider.
(f) Construction.--Nothing in this section shall be
construed to affect the ability of a court to consider, in a
legal proceeding brought against an Internet service
provider, notifications of claimed infringement as described
in section 512(c)(3) of title 17, United States Code, or any
other relevant evidence, other than that described in
subsection (e).
SEC. 104. DESIGNATION AND TRAINING OF AGENTS IN COMPUTER
HACKING AND INTELLECTUAL PROPERTY UNITS.
(a) Designation of Agents in CHIPs Units.--The Attorney
General shall ensure that any unit in the Department of
Justice responsible for investigating computer hacking or
responsible for investigating intellectual property crimes is
assigned at least one agent to support such unit for the
purpose of investigating crimes relating to the theft of
intellectual property.
(b) Training.--The Attorney General shall ensure that each
agent assigned under subsection (a) has received training in
the investigation and enforcement of intellectual property
crimes.
SEC. 105. EDUCATION PROGRAM.
(a) Establishment.--There shall be established within the
Office of the Associate Attorney General of the United States
an Internet Use Education Program.
(b) Purpose.--The purpose of the Internet Use Education
Program shall be to--
(1) educate the general public concerning the value of
copyrighted works and the effects of the theft of such works
on those who create them; and
(2) educate the general public concerning the privacy,
security, and other risks of using the Internet to obtain
illegal copies of copyrighted works.
(c) Sector Specific Materials.--The Internet Use
Educational Program shall, to the extent appropriate, develop
materials appropriate to Internet users in different sectors
of the general public where criminal copyright infringement
is a concern. The Attorney General shall consult with
appropriate interested parties in developing such sector-
specific materials.
(d) Consultations.--The Attorney General shall consult with
the Register of Copyrights and the Secretary of Commerce in
developing the Internet Use Education Program under this
section.
(e) Prohibition on Use of Certain Funds.--The program
created under this section shall not use funds or resources
of the Department of Justice allocated for criminal
investigation or prosecution.
(f) Additional Prohibition on the Use of Funds.--The
program created under this section shall not use any funds or
resources of the Department of Justice allocated for the
Civil Rights Division of the Department, including any funds
allocated for the enforcement of civil rights or the Voting
Rights Act of 1965.
SEC. 106. ACTIONS BY THE GOVERNMENT OF THE UNITED STATES.
Section 411(a) of title 17, United States Code, is amended
in the first sentence by striking ``Except for'' and
inserting ``Except for an action brought by the Government of
the United States or by any agency or instrumentality
thereof, or'' .
SEC. 107. AUTHORIZED APPROPRIATIONS.
There are authorized to be appropriated to the Department
of Justice for fiscal year 2005 not less than $15,000,000 for
the investigation and prosecution of violations of title 17,
United States Code.
SEC. 108. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING OF
MOTION PICTURES IN A MOTION PICTURE EXHIBITION
FACILITY.
(a) In General.--Chapter 113 of title 18, United States
Code, is amended by adding after section 2319A the following
new section:
``Sec. 2319B. Unauthorized recording of motion pictures in a
motion picture exhibition facility
``(a) Offense.--Any person who, without the authorization
of the copyright owner, knowingly uses or attempts to use an
audiovisual recording device to transmit or make a copy of a
motion picture or other audiovisual work protected under
title 17, or any part thereof, from a performance of such
work in a motion picture exhibition facility, shall--
``(1) be imprisoned for not more than 3 years, fined under
this title, or both; or
``(2) if the offense is a second or subsequent offense, be
imprisoned for no more than 6 years, fined under this title,
or both.
The possession by a person of an audiovisual recording device
in a motion picture exhibition facility may be considered as
evidence in any proceeding to determine whether that person
committed an offense under this subsection, but shall not, by
itself, be sufficient to support a conviction of that person
for such offense.
``(b) Forfeiture and Destruction.--When a person is
convicted of an offense under subsection (a), the court in
its judgment of conviction shall, in addition to any penalty
provided, order the forfeiture and destruction or other
disposition of all unauthorized copies of motion pictures or
other audiovisual works protected under title 17, or parts
thereof, and any audiovisual recording devices or other
equipment used in connection with the offense.
``(c) Authorized Activities.--This section does not prevent
any lawfully authorized investigative, protective, or
intelligence activity by an officer, agent, or employee of
the United States, a State, or a political subdivision of a
State, or by a person acting under a contract with the United
States, a State, or a political subdivision of a State.
``(d) Immunity for Theaters and Authorized Persons.--With
reasonable cause, the owner or lessee of a motion picture
facility where a motion picture is being exhibited, the
authorized agent or employee of such owner or lessee, the
licensor of the motion picture being exhibited, or the agent
or employee of such licensor--
``(1) may detain, in a reasonable manner and for a
reasonable time, any person suspected of committing an
offense under this section for the purpose of questioning
that person or summoning a law enforcement officer; and
``(2) shall not be held liable in any civil or criminal
action by reason of a detention under paragraph (1).
``(e) Victim Impact Statement.--
``(1) In general.--During the preparation of the
presentence report under rule 32(c) of the Federal Rules of
Criminal Procedure,
[[Page H7656]]
victims of an offense under this section shall be permitted
to submit to the probation officer a victim impact statement
that identifies the victim of the offense and the extent and
scope of the injury and loss suffered by the victim,
including the estimated economic impact of the offense on
that victim.
``(2) Contents.--A victim impact statement submitted under
this subsection shall include--
``(A) producers and sellers of legitimate works affected by
conduct involved in the offense;
``(B) holders of intellectual property rights in the works
described in subparagraph (A); and
``(C) the legal representatives of such producers, sellers,
and holders.
``(f) Definitions.--In this section:
``(1) Audiovisual work, copy, etc.--The terms `audiovisual
work', `copy', `copyright owner', `motion picture', and
`transmit' have, respectively, the meanings given those terms
in section 101 of title 17.
``(2) Audiovisual recording device.--The term `audiovisual
recording device' means a digital or analog photographic or
video camera, or any other technology or device capable of
enabling the recording or transmission of a copyrighted
motion picture or other audiovisual work, or any part
thereof, regardless of whether audiovisual recording is the
sole or primary purpose of the device.
``(3) Motion picture exhibition facility.--The term `motion
picture exhibition facility' means a movie theater, screening
room, or other venue that is being used primarily for the
exhibition of a copyrighted motion picture, if such
exhibition is open to the public or is made to an assembled
group of viewers outside of a normal circle of a family and
its social acquaintances.
``(g) State Law Not Preempted.--Nothing in this section may
be construed to annul or limit any rights or remedies under
the laws of any State.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 113 of title 18, United States Code, is
amended by inserting after the item relating to section 2319A
the following:
``2319B. Unauthorized recording of motion pictures in a motion picture
exhibition facility.''.
SEC. 109. SENSE OF THE CONGRESS ON NEED TO TAKE STEPS TO
PREVENT ILLEGAL ACTIVITY ON PEER-TO-PEER
SERVICES.
(a) Findings.--The Congress finds as follows:
(1) The most popular publicly accessible peer-to-peer file
sharing software programs combined have been downloaded
worldwide over 600,000,000 times.
(2) The vast majority of software products, including peer-
to-peer technology, do not pose an inherent risk. Responsible
persons making software products should be encouraged and
commended for the due diligence and reasonable care they take
including by providing instructions, relevant information in
the documentation, disseminating patches, updates, and other
appropriate modifications to the software.
(3) Massive volumes of illegal activity, including the
distribution of child pornography, viruses, and confidential
personal information, and copyright infringement occur on
publicly accessible peer-to-peer file sharing services every
day. Some publicly accessible peer-to-peer file sharing
services expose consumers, particularly children, to serious
risks, including legal liability, loss of privacy, threats to
computer security, and exposure to illegal and inappropriate
material.
(4) Several studies and reports demonstrate that
pornography, including child pornography, is prevalent on
publicly available peer-to-peer file sharing services, and
children are regularly exposed to pornography when using such
peer-to-peer file sharing services.
(5) The full potential of peer-to-peer technology to
benefit consumers has yet to be realized and will not be
achieved until these problems are adequately addressed.
(6) To date, the businesses that run publicly accessible
file-sharing services have refused or failed to voluntarily
and sufficiently address these problems.
(7) Many users of publicly available peer-to-peer file-
sharing services are drawn to these systems by the lure of
obtaining ``free'' music and movies.
(8) While some users use parental controls to protect
children from pornography available on the Internet and
search engines, not all such controls work on publicly
accessible peer-to-peer networks.
(9) Businesses that run publicly accessible peer-to-peer
file sharing services have openly acknowledged, and numerous
studies and reports have established, that these services
facilitate and profit from massive amounts of copyright
infringement, causing enormous damage to the economic well-
being of the copyright industries whose works are being
illegally ``shared'' and downloaded.
(10) The legitimate digital music marketplace offers
consumers a wide and growing array of choices for obtaining
music legally, without exposure to the risks posed by
publicly accessible peer-to-peer file sharing services.
(11) The Federal Trade Commission issued a Consumer Alert
in July of 2003 warning consumers that some file-sharing
services contain damaging viruses and worms and, without the
computer user's knowledge or consent, install spyware to
monitor a user's browsing habits and send data to third
parties or automatically open network connections.
(12) Publicly available peer-to-peer file-sharing services
can and should adopt reasonable business practices and use
technology in the marketplace to address the existing risks
posed to consumers by their services and facilitate the
legitimate use of peer-to-peer file sharing technology and
software.
(b) Sense of Congress.--It is the sense of the Congress
that--
(1) responsible software developers should be commended,
recognized, and encouraged for their efforts to protect
consumers;
(2) currently the level of ongoing and persistent illegal
and dangerous activity on publicly accessible peer-to-peer
file sharing services is harmful to consumers, minors, and
the economy; and
(3) therefore, the Congress and the executive branch should
consider all appropriate measures to protect consumers and
children, and prevent such illegal activity.
SEC. 110. ENHANCEMENT OF CRIMINAL COPYRIGHT INFRINGEMENT.
(a) Criminal Infringement.--Section 506 of title 17, United
States Code, is amended--
(1) by amending subsection (a) to read as follows:
``(a) Criminal Infringement.--Any person who--
``(1) infringes a copyright willfully and for purposes of
commercial advantage or private financial gain,
``(2) infringes a copyright willfully by the reproduction
or distribution, including by the offering for distribution
to the public by electronic means, during any 180-day period,
of 1 or more copies or phonorecords of 1 or more copyrighted
works, which have a total retail value of more than $1,000,
or
``(3) infringes a copyright by the knowing distribution,
including by the offering for distribution to the public by
electronic means, with reckless disregard of the risk of
further infringement, during any 180-day period, of--
``(A) 1,000 or more copies or phonorecords of 1 or more
copyrighted works,
``(B) 1 or more copies or phonorecords of 1 or more
copyrighted works with a total retail value of more than
$10,000, or
``(C) 1 or more copies or phonorecords of 1 or more
copyrighted pre-release works,
shall be punished as provided under section 2319 of title 18.
For purposes of this subsection, evidence of reproduction or
distribution of a copyrighted work, by itself, shall not be
sufficient to establish the necessary level of intent under
this subsection.''; and
(2) by adding at the end the following:
``(g) Limitation on Liability of Service Providers.--No
legal entity shall be liable for a violation of subsection
(a)(3) by reason of performing any function described in
subsection (a), (b), (c), or (d) of section 512 if such legal
entity would not be liable for monetary relief under section
512 by reason of performing such function. Except for
purposes of determining whether an entity qualifies for the
limitation on liability under subsection (a)(3) of this
section, the legal conclusion of whether an entity qualifies
for a limitation on liability under section 512 shall not be
considered in a judicial determination of whether the entity
violates subsection (a) of this section.
``(h) Definitions.--In this section:
``(1) Pre-release work.--The term `pre-release work' refers
to a work protected under this title which has a commercial
and economic value and which, at the time of the act of
infringement that is the basis for the offense under
subsection (a)(3), the defendant knew or should have known
had not yet been made available by the copyright owner to
individual members of the general public in copies or
phonorecords for sale, license, or rental.
``(2) Retail value.--The `retail value' of a copyrighted
work is the retail price of that work in the market in which
it is sold. In the case of an infringement of a copyright by
distribution, if the retail price does not adequately reflect
the economic value of the infringement, then the retail value
may be determined using other factors, including but not
limited to suggested retail price, wholesale price,
replacement cost of the item, licensing, or distribution-
related fees.''.
(b) Penalties.--Section 2319 of title 18, United States
Code, is amended--
(1) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(2) by inserting after subsection (c) the following:
``(d) Any person who commits an offense under section
506(a)(3) of title 17--
``(1) shall be imprisoned not more than 3 years, or fined
in the amount set forth in this title, or both, or, if the
offense was committed for purposes of commercial advantage or
private financial gain, imprisoned for not more than 5 years,
or fined in the amount set forth in this title, or both; and
``(2) shall, if the offense is a second or subsequent
offense under paragraph (1), be imprisoned not more than 6
years, or fined in the amount set forth in this title, or
both, or, if the offense was committed for purposes of
commercial advantage or private financial gain, imprisoned
for not more than 10 years, or fined in the amount set forth
in this title, or both.''; and
(3) in subsection (f), as so redesignated--
(A) in paragraph (1), by striking ``and'' after the
semicolon;
(B) in paragraph (2), by striking the period and inserting
``; and''; and
(C) by adding at the end the following:
``(3) the term `financial gain' has the meaning given that
term in section 101 (relating to definitions) of title 17.''.
[[Page H7657]]
(c) Civil Remedies for Infringement of a Commercial Pre-
Release Copyrighted Work.--Section 504(b) of title 17, United
States Code, is amended--
(1) by striking ``The copyright owner'' and inserting the
following:
``(1) In general.--The copyright owner''; and
(2) by adding at the end the following:
``(2) Damages for pre-release infringement.--
``(A) In general.--In the case of any pre-release work,
actual damages shall be presumed conclusively to be no less
than $10,000 per infringement, if a person--
``(i) distributes such work by making it available on a
computer network accessible to members of the public; and
``(ii) knew or should have known that the work was intended
for commercial distribution.
``(B) Definition.--For purposes of this subsection, the
term `pre-release work' has the meaning given that term in
section 506(h).''.
SEC. 111. AMENDMENT OF FEDERAL SENTENCING GUIDELINES
REGARDING THE INFRINGEMENT OF COPYRIGHTED WORKS
AND RELATED CRIMES.
(a) Amendment to the Sentencing Guidelines.--Pursuant to
its authority under section 994 of title 28, United States
Code, and in accordance with this section, the United States
Sentencing Commission shall review and, if appropriate, amend
the sentencing guidelines and policy statements applicable to
persons convicted of intellectual property rights crimes,
including sections 2318, 2319, 2319A, 2319B, 2320 of title
18, United States Code, and sections 506, 1201, and 1202 of
title 17, United States Code.
(b) Factors.--In carrying out this section, the Sentencing
Commission shall--
(1) take all appropriate measures to ensure that the
sentencing guidelines and policy statements applicable to the
offenses described in subsection (a) are sufficiently
stringent to deter and adequately reflect the nature of such
offenses;
(2) consider whether to provide a sentencing enhancement
for those convicted of the offenses described in subsection
(a) when the conduct involves the display, performance,
publication, reproduction, or distribution of a copyrighted
work before the time when the copyright owner has authorized
the display, performance, publication, reproduction, or
distribution of the original work, whether in the media
format used by the infringing good or in any other media
format;
(3) consider whether the definition of ``uploading''
contained in Application Note 3 to Guideline 2B5.3 is
adequate to address the loss attributable to people broadly
distributing copyrighted works over the Internet without
authorization; and
(4) consider whether the sentencing guidelines and policy
statements applicable to the offenses described in subsection
(a) adequately reflect any harm to victims from infringement
in circumstances where law enforcement cannot determine how
many times copyrighted material is reproduced or distributed.
(c) Promulgation.--The Commission may promulgate the
guidelines or amendments under this section in accordance
with the procedures set forth in section 21(a) of the
Sentencing Act of 1987, as though the authority under that
Act had not expired.
SEC. 112. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND
VIDEO CONTENT IN MOTION PICTURES.
(a) Short Title.--This section may be cited as the ``Family
Movie Act of 2004''.
(b) Exemption From Copyright and Trademark Infringement for
Skipping of Audio or Video Content of Motion Pictures.--
Section 110 of title 17, United States Code, is amended--
(1) in paragraph (9), by striking ``and'' after the
semicolon at the end;
(2) in paragraph (10), by striking the period at the end
and inserting ``; and'';
(3) by inserting after paragraph (10) the following:
``(11) the making imperceptible, by or at the direction of
a member of a private household, of limited portions of audio
or video content of a motion picture during a performance in
or transmitted to that household for private home viewing,
from an authorized copy of the motion picture, or the
creation or provision of a computer program or other
technology that enables such making imperceptible and that is
designed and marketed for such use at the direction of a
member of a private household, if--
``(A) no fixed copy of the altered version of the motion
picture is created by such computer program or other
technology; and
``(B) no changes, deletions or additions are made by such
computer program or other technology to commercial
advertisements, or to network or station promotional
announcements, that would otherwise be performed or displayed
before, during or after the performance of the motion
picture.''; and
(4) by adding at the end the following:
``For purposes of paragraph (11), the term `making
imperceptible' does not include the addition of audio or
video content that is performed or displayed over or in place
of existing content in a motion picture.''.
(c) Exemption From Trademark Infringement.--Section 32 of
the Trademark Act of 1946 (15 U.S.C. 1114) is amended by
adding at the end the following:
(c) Exemption From Trademark Infringement.--Section 32 of
the Trademark Act of 1946 (15 U.S.C. 1114) is amended by
adding at the end the following:
``(3)(A) Any person who engages in the conduct described in
paragraph (11) of section 110 of title 17, United States
Code, and who complies with the requirements set forth in
that paragraph is not liable on account of such conduct for a
violation of any right under this Act. This subparagraph does
not preclude liability of a person for conduct not described
in paragraph (11) of section 110 of title 17, United States
Code, even if that person also engages in conduct described
in paragraph (11) of section 110 of such title.
``(B) A manufacturer, licensee, or licensor of technology
that enables the making of limited portions of audio or video
content of a motion picture imperceptible that is authorized
under subparagraph (A) is not liable on account of such
manufacture or license for a violation of any right under
this Act, if such manufacturer, licensee, or licensor ensures
that the technology provides a clear and conspicuous notice
at the beginning of each performance that the performance of
the motion picture is altered from the performance intended
by the director or copyright holder of the motion picture.
Subparagraph (A) shall not apply to a manufacturer, licensee,
or licensor of technology that fails to comply with this
subparagraph.
``(C) The requirement under subparagraph (B) to provide
notice shall apply only with respect to technology
manufactured after the end of the 180-day period beginning on
the date of the enactment of the Family Movie Act of 2004.''.
(d) Definition.--In this section, the term ``Trademark Act
of 1946'' means 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
(15 U.S.C. 1051 et seq.).
TITLE II--MISCELLANEOUS
SEC. 201. DESIGNATION OF NATIONAL TREE.
(a) Designation.--Chapter 3 of title 36, United States
Code, is amended by adding at the end the following:
``Sec. 305. National tree
``The tree genus Quercus, commonly known as the oak tree,
is the national tree.''.
(b) Conforming Amendments.--Such title is amended--
(1) in the table of contents for part A of subtitle I, by
striking ``, and March'' and inserting ``March, and Tree'';
(2) in the chapter heading for chapter 3, by striking ``,
AND MARCH'' and inserting ``MARCH, AND TREE''; and
(3) in the table of sections for chapter 3, by adding at
the end the following:
``305. National tree.''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Wisconsin (Mr. Sensenbrenner) and the gentleman from California (Mr.
Schiff) each will control 20 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on H.R. 4077, the bill
currently under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, this legislation addresses the growing piracy problem
facing our Nation's creative community. New technologies have made
copyright piracy an even easier activity to undertake than before. The
number of pirating files continues to increase. Although the technology
is not the problem, our Nation's laws need to be updated to reflect the
impact of this new technology.
In response to the increase in piracy, the copyright community has
been investing time and money in campaigns to educate America about the
need to respect copyrights. The Attorney General and other senior
administration officials have spoken publicly about the piracy problem
and their efforts to fight it in our court system. Schools and
universities have begun requiring incoming freshmen to attend copyright
education programs before granting them access to the university
computer networks.
Yet there seems to be a belief among America's youth, and even some
of their parents, that copyright piracy is either an acceptable
activity or one that carries low risk of penalties. This needs to
change.
Under existing legal authority, the Department of Justice has
identified problems that prevent it from pursuing high-volume file
sharers. Section 10 of this legislation provides new legal authority to
pursue those making available 1,000 or more files. The content
[[Page H7658]]
community sees government-run public service campaigns as an important
counterpart to their education effort. Section 5 provides for such a
government-run campaign.
Parents want to be able to learn of illegal activity by their
children before they are sued by a copyright owner or the Department of
Justice. Section 3 of this legislation creates a voluntary warning
system that will allow parents to receive a warning like the kind that
still occurs in small towns today. When a child is doing something
wrong, the local cop on the beat tells his or her parents about it.
Once alerted to their child's behavior by a friendly warning from the
local cop, the parents can put a stop to behavior then and there. I
believe that a DOJ warning letter sent to the parents will have the
same impact on them and their child's behavior as the policeman's
friendly warning.
Finally, H.R. 4077 contains the Family Movie Act that clarifies that
existing copyright and trademark law cannot be used to prevent a parent
from deciding what their children see in the privacy of their own home.
I do not take kindly to those who would presume to tell parents how
they decide what is best for their children.
In addition, because of the limited floor time at this time of year,
the bill also includes the text of H.R. 1775. This bill designates the
oak tree as the national tree.
Mr. Speaker, I reserve the balance of my time.
Mr. SCHIFF. Mr. Speaker, I yield myself such time as I may consume.
I rise in support of H.R. 4077, the Piracy Deterrence and Education
Act of 2004, as amended today by the chairman of the Committee on the
Judiciary. I urge my colleagues to join me in voting to pass this
important and worthy piece of legislation.
Prior to reporting H.R. 4077 by voice vote earlier this month, the
Committee on the Judiciary gave this bill great deliberation. This bill
and its precursors, H.R. 2517 and H.R. 2752, were the subject of
several subcommittee hearings and a subcommittee markup. Through the
extensive process given to this bill, the Committee on the Judiciary
crafted a measure that makes important contributions and advances in
the fight against widespread electronic theft of copyrighted works.
Intellectual property theft has become a rampant and serious threat
to the livelihoods of all copyright creators. Digital technologies like
the CD burner, the Internet, and the MP3 audio-compression standard,
while enhancing the consumer experience, have greatly facilitated
copyright theft and led to an explosion in its prevalence. Studies
indicate that at any given time more than 850 million copyright-
infringing files are being illegally offered for distribution through
just one peer-to-peer, file-swapping network. Innumerable Web sites,
file transfer protocol servers, Internet affinity groups, and Internet
relay chat channels also constitute havens for copyright theft.
Copyright theft injures copyright creators of all types, whether they
are songwriters, photojournalists, graphic designers, software
engineers, or musicians. On the human level, illegal downloads of songs
supplant legal downloads and thus deny songwriters the 8 cents they are
due for each legal download. At the macro level, the worldwide software
industry alone is estimated to have suffered $29 billion in packaged
software loss due to piracy during 2003.
While not a panacea, the changes made by H.R. 4077 will play an
important role in addressing the piracy problem. It has become clear
that law enforcement authorities need additional resources, statutory
authority, and incentives to become productive participants in the
antipiracy battle. H.R. 4077 is designed to address these needs.
Specifically, sections 103 and 105 of the bill engage Federal law
enforcement agencies in the effort to deter and educate the public
about copyright crimes. Section 103 establishes a voluntary program
through which the FBI, with cooperation from Internet service
providers, can inform Internet users about suspected infringement.
Section 105 directs the Department of Justice, in conjunction with the
U.S. Copyright Office, to establish an Internet use education program.
Section 106 enables criminal prosecution of copyright infringement
involving unregistered works.
{time} 1445
This will assist copyright owners, such as photographers, who
generally cannot register their copyrighted works, and, as a result,
effectively cannot afford to bring civil actions against infringers. By
raising the possibility of criminal prosecution, section 106 would
create a credible deterrent against the theft of unregistered works.
Section 108 deals with the growing phenomenon of copyright thieves
who use portable digital video recorders to record movies off theater
screens during public exhibitions. I was recently in Pakistan, and on
the hotel TVs they showed ``Catwoman,'' still out in theaters; and as
you watched, you could hear people coughing in the background, or
indeed standing up to get popcorn. Plainly, not a legitimately
copyrighted exhibition.
Organized piracy rings widely distribute copies of these
surreptitious recordings, both online and on the street. Section 108
clarifies that it is a felony to surreptitiously record a move in a
theater.
Section 110 makes the potential criminal prosecution a more credible
deterrent to egregious infringements by otherwise judgment-proof
infringers. Section 110 does this by ensuring that criminal copyright
prosecutions can be brought against copyright infringers who knowingly
distribute massive amounts of copyrighted works or enormously valuable
copyrighted works with reckless disregard of the risk of further
infringement.
Section 112 of H.R. 4077 did generate some concern during the
Committee on the Judiciary consideration because it resolves a legal
question at the heart of a pending Federal litigation. While many
members of the Committee on the Judiciary believe section 112
inappropriately intervenes in this Federal legislation, support for the
balance of H.R. 4077 convinced these members to support the bill as a
whole.
Thus, H.R. 4077 is, on balance, a well-crafted bill that will provide
valuable and targeted assistance in the battle against copyright
piracy.
It is worth noting that while not universally embraced, H.R. 4077 has
garnered widespread consensus support. Groups as diverse as the
Professional Photographers Association, the Video Software Dealers
Association, and needlepoint designers have written in support.
The widespread support is a credit to its sponsors, who worked
assiduously during committee consideration to address many of the
concerns raised. In fact, H.R. 4077 itself was introduced as a
replacement for H.R. 2517 and H.R. 2752, both of which contained
several more controversial provisions.
During consideration of this bill, it has been amended to include
changes sought by Internet service providers, universities, theater
owners, broadcast networks, consumer groups, parallel importers, the
Department of Justice, and the Bureau of Immigration and Customs
Enforcement. While I would not go so far as to say that H.R. 4077 has
the affirmative endorsement of all concerned, I do believe that most of
the legitimate concerns have been accommodated.
In summary, this bill as amended today advances important and
necessary objectives, and I encourage my colleagues to join me in
supporting it.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield 5 minutes to the gentleman
from Texas (Mr. Smith), the Chair of the subcommittee and the principal
author of the bill.
Mr. SMITH of Texas. Mr. Speaker, first of all I want to thank the
gentleman from Wisconsin, the chairman of the Committee on the
Judiciary, for yielding me time.
Also at the outset I want to acknowledge that this legislation
represents a genuine bipartisan and cooperative effort. The gentleman
from California (Mr. Berman), who I understand is on his way to the
House floor from the airport, was a partner in the effort to write this
legislation and has contributed many good ideas to the final product.
So I want to acknowledge his good work as well as his input and say
that I appreciate his support.
Mr. Speaker, piracy of intellectual property over the Internet,
especially on peer-to-peer networks, has reached alarming levels.
Millions of pirated movies, music, software, game and other copyrighted
files are now available for free download from suspect
[[Page H7659]]
peer-to-peer networks. This piracy harms everyone, from those looking
for legitimate sources of content, to those who create it.
I have heard from songwriters, video store owners, software
publishers, and game developers who feel the impact of such piracy
every day. They have urged Congress to help them educate the public
about the harms of piracy while also warning and penalizing those who
continue to steal from others.
Peer-to-peer technology is an essential development of our Nation's
high-tech economy. However, like all new technologies, peer-to-peer
technologies have been abused by those who want to commit crimes. Our
Nation's laws need to be updated to reflect the harms that can be
caused by this new technology, without penalizing the technology
itself.
This legislation addresses P2P piracy by better educating the public
about copyright law, authorizing the creation of a system to warn
online users of potential infringement, penalizing those who bring
camcorders into movie theaters for the purpose of making pirated DVDs,
assisting Federal law enforcement authorities in their efforts to
investigate and prosecute intellectual property crimes, and designating
designated intellectual crime agents within DOJ Computer Hacking and
Intellectual Property Sections to prosecute cybercrimes. The Internet
has revolutionized how Americans locate information, shop and
communicate. We must not let new Internet technologies become a haven
for criminals.
Mr. Speaker, also included in H.R. 4077 is an updated version of H.R.
4586, the Family Movie Act of 2004, which the committee reported out in
July. Parents should have the right to watch any movie they want and to
skip over or mute any content they find objectionable. This legislation
ensures that parents have the final say in what their children watch in
the privacy of their own home and that parents can act in the best
interests of their children. Parents need all the help they can get in
protecting their children from the sex, violence, and profanity found
in many movies; and parents should be able to determine what their
children see on the screen. Technology that helps parents accomplish
this should be applauded, and H.R. 4077 ensures that this technology
will not face continued legal challenges.
Mr. Speaker, I urge my colleagues to pass this important piece of
legislation.
Mr. SCHIFF. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I wanted to join my colleague in congratulating my
colleague, the gentleman from California (Mr. Berman), who I know
wanted to be here to manage the floor time on our side of the aisle,
for his great contributions to this legislation and protection of
intellectual property.
I also want to thank the chairman of the subcommittee, the gentleman
from Texas (Mr. Smith), for his extraordinary job during these 2 years
in advancing the cause of protecting, really, the one industry that has
a positive balance of trade with every other country in the world, and
that is the intellectual property industry.
So I want to thank our subcommittee chairman and thank our full
committee chairman for their work on this bill today and more generally
on the issue of protecting intellectual property theft.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in support of the bill,
H.R. 4077, the Piracy Deterrence and Education Act of 2004; however, I
join my colleagues in the Committee on the Judiciary in raising serious
concerns about Section 12 as reported. Section 12 adds to H.R. 4077 the
text of H.R. 4586, the ``Family Movie Act of 2004.'' With the purported
goal of sanitizing undesired content in motion pictures, section 12
immunizes from copyright and trademark liability any for-profit
companies that develop movie-editing software to make content
imperceptible without permission from the movies' creators. Section 12
favors one party in a private lawsuit, interferes with marketplace
negotiations, fails to achieve its goal, is unnecessary and overbroad,
may increase the level of undesired content, and impinges on artistic
freedom and rights.
As Chair of the Congressional Children's Caucus, I appreciate the
fact that one of the drafter's intentions was to protect children.
Purportedly, parts of Section 12 are about whether children should be
forced to watch undesired content. However, the issue in this debate is
about who should make editorial decisions about what movie content
children should see: parents or a for-profit company.
Supporters of Section 12 believe companies should be allowed to do
the editing for profit, and without permission of film creators, while
opponents believe parents are the best qualified to know what their
children should not see. The legislation would accomplish little beyond
inflaming the debate over indecent content in popular media and
interfering with marketplace solutions to parental concerns.
Regardless of the outcome of the pending litigation, this legislation
should not be brought before the House because it is unnecessary. Its
supposed rationale is to make it easier for parents and children to
avoid watching motion pictures with undesired content, but parents and
children already have such options.
At the outset, there is an obvious marketplace solution to undesired
content in that consumers can merely elect not to view it. As the
Register of Copyrights testified at a hearing on the bill underlying
the amendment:
I cannot accept the proposition that not to permit parents
to use such products means that they are somehow forced to
expose their children (or themselves) to unwanted depictions
of violence, sex and profanity. There is an obvious choice--
one which any parent can and should make: don't let your
children watch a movie unless you approve of the content of
the entire movie.
The motion picture industry has even enhanced the ability of
consumers to exercise this choice. For decades and on a voluntary
basis, it has implemented a rating system for its products that
indicates the level of sexual or violent content and the target
audience age. Each and every major motion picture released in theaters
or on DVD or VHS bears such a rating. Such ratings effectively enable
parents to steer their children away from movies they consider
inappropriate.
Mr. Speaker, for the reasons stated above, I support this
legislation, but reserve my comments regarding Section 12 as issues
that should be addressed alternatively.
Mr. GREEN of Texas. Mr. Speaker, I rise in support of H.R. 4077 today
because I feel it is important for Congress to keep pace with those who
use new technology to defraud consumers.
As a co-sponsor with our colleague Heather Wilson of the Anti-SPAM
bill, I'd like to also thank my colleagues on the Energy and Commerce
and Judiciary Committees for taking action on this legislation.
We live in an age when technological breakthroughs bring us better,
more efficient lives. However, these breakthroughs also entice people
to take advantage of others for personal and financial gain.
Congress needs to address these types of issues quickly because as we
all know, the fast pace of technological growth will always bring with
it new issues for Congress.
During our experience with the Anti-SPAM bill, we all came to an
understanding that technology itself is not the problem--it is the way
some entities use technology that is harmful to consumers.
This legislation balances consumer protections against Spyware with
the need to allow industry to use software technology to provide useful
products and services to consumers.
I'm glad to stand with colleagues from both sides of the isle on this
issue and rise to support this legislation. This bill will protect us
from spy ware and get our law enforcement agencies involved in helping
make the internet a more secure place to conduct business, communicate
and learn.
Mr. CONYERS. Mr. Speaker, I rise in support of the bill but with
strong opposition to section 112. While the bill contains numerous
anti-copyright piracy provisions that I helped draft, I oppose section
112 because it is an anti-copyright, special interest provision that
will interfere in a pending lawsuit.
The content industries provide this country's number one export; in
fact, copyrighted content provides a positive trade balance of
approximately $89 billion. Clearly, our content is a valuable resource
that deserves protection.
Unfortunately, the same technologies that have enhanced our lives and
globalized trade have made it possible to obtain digital content for
free; the same technology that enhanced the lives of so many is harming
the lives of people--the artists, musicians, writers, etc.--whose work
we value so much.
While there are laws on the books that protect copyrighted content
from theft, they do not go quite far enough. New file swapping programs
and sites appear every day on the Internet, each one better than its
predecessor. These sites do not develop their own content but rely upon
the popularity of content created by others and allow that content to
be distributed to millions with the click of a mouse. These sites also
create security and privacy risks, in that they open up the entire hard
drives of average consumers for the world to see, financial and
personal information included.
I was a cosponsor of Chairman Smith's bill, H.R. 2517, but felt that
we could do even
[[Page H7660]]
more to thwart piracy. That is why Ranking Member Berman and I
introduced H.R. 2752, which provided for increased enforcement of the
piracy laws. For the past several months, we have been working in
bipartisan fashion to craft language that is non-controversial and
workable.
In that regard, I am pleased that the compromise bill incorporates
numerous provisions from the original Conyers-Berman bill. H.R. 4077
clarifies that it is a federal offense to camcord a movie in a theater.
This is a major means by which movies end up on the Internet for free.
I think we can all agree there is little legitimate reason for engaging
in this conduct and need to send a clear message that we will not
tolerate this theft. It also ensures that theaters owners are exempt
from liability if they attempt to enforce this prohibition.
The bill contains a sense of the Congress recognizing the potential
dangers of misused peer-to-peer services (such as spreading worms,
viruses, making personal computer files available to the public).
Third, the bill provides additional tools to prosecute those who
upload copyrighted content to the Internet unlawfully, and I was
pleased the content and Internet industries were able to compromise on
this provision. It also provides an authorization of $15 million for
the Justice Department's piracy fighting efforts, an increase over the
traditional $10 million.
Finally, the legislation includes language similar to a provision in
an earlier bill of mine, H.R. 4643 from the 107th Congress, saying the
distribution of unpublished or pre-release works can constitute
infringement. This is important for industries whose content ends up on
the Internet before it is even released to the public.
Unfortunately, I am disappointed that our year-long bipartisan effort
has been tainted by the addition of section 112, which is identical to
H.R. 4586. H.R. 4586, the ``Family Movie Act of 2004,'' is an anti-
content creator proposal that interferes in a private lawsuit. It puts
Congress on one side of a private business dispute that is properly
left to the litigants and the court.
I urge my colleagues to vote ``yes'' on this legislation.
Mr. SCHIFF. Mr. Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Issa). The question is on the motion
offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that the
House suspend the rules and pass the bill, H.R. 4077, as amended.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
____________________