[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.

                          ____________________