[Congressional Record Volume 153, Number 172 (Wednesday, November 7, 2007)]
[Senate]
[Pages S14064-S14066]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself and Mr. Cornyn):
  S. 2317. A bill to amend titles 17 and 18, United States Code, and 
the Trademark Act of 1946 to strengthen and harmonize the protection of 
intellectual property, and for other purposes; to the Committee on the 
Judiciary.
  Mr. LEAHY. Mr. President, I am pleased to introduce the Intellectual 
Property Enforcement Act of 2007. Congress is charged ``to promote the 
progress of science and useful arts,'' and part of promotion is 
protection. This legislation will enhance existing intellectual 
property enforcement laws, provide more resources to combat 
infringement, and harmonize copyright and trademark laws. I thank 
Senator Cornyn for joining me in this effort, which is a high priority 
of mine, and also of the creative communities and industries across the 
country.
  Each year, counterfeiting and copyright infringement cost the U.S. 
economy billions of dollars. The International Anti-Counterfeiting 
Coalition estimates that counterfeiting and piracy cost American 
businesses $250 billion a year, and hundreds of thousands of jobs as 
well. Clearly, IP theft is big business, and that can devastate small 
businesses. No one knows this better than Vermont companies such as 
Hubbardton Forge, Vermont Teddy Bear Company, and Burton Snowboards. 
Each of these companies, and many others like them across the Nation 
invests time, money, and effort in the development of new products. 
When their products are infringed, it devalues the product and 
threatens the company.
  Senator Cornyn and I have heard from a myriad of interested parties 
about the importance of protecting intellectual property, and have seen 
many enforcement proposals. The legislation we introduce today will 
serve as the core of our legislative effort this year. It will start 
the process of considering how to ensure that our enforcement laws are 
up to the task, and that the necessary resources are in place to 
enforce them. Other Senators have introduced legislation to address 
these issues, and the Department of Justice and others have suggested 
legislative language. These are all helpful to the debate, and I expect 
there will be more to come. Introduction of the Intellectual Property 
Enforcement Act of 2007 is the beginning of this important effort.
  The centerpiece of the bill we introduce today gives the Department 
of Justice the ability to bring civil actions against copyright 
infringers. Punishment should fit the crime, and a civil action is 
often more appropriate to the wrong being done in such cases than is 
criminal prosecution. This concept has passed the Senate on three 
separate occasions, as the PIRATE Act. Next, this bill adds resources 
for agents to combat infringement. It does not matter how strong our 
laws are, if there are not enough agents, or if our agents do not have 
the proper expertise to investigate and prosecute crimes, piracy will 
flourish and harm our economy. Third, this bill allows for ``harmless 
errors'' on copyright registration forms. Copyright registration should 
not be voided by innocently checking the wrong box or misspelling a 
word on a form. Finally, this bill harmonizes the forfeiture provisions 
in the copyright and trademark statutes.
  By enacting well-balanced enforcement laws, we can protect both the 
creators and the consumers of intellectual property. It is impossible 
to put a price tag on creativity, but we must do all we can to protect 
the fruits of creative labor.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2317

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Intellectual Property 
     Enforcement Act of 2007''.

     SEC. 2. AUTHORIZATION OF CIVIL COPYRIGHT ENFORCEMENT BY 
                   ATTORNEY GENERAL.

       (a) In General.--Chapter 5 of title 17, United States Code, 
     is amended by inserting after section 506 the following:

     ``Sec. 506a. Civil penalties for violations of section 506

       ``(a) In General.--In lieu of a criminal action under 
     section 506, the Attorney General may commence a civil action 
     in the appropriate United States district court against any 
     person who engages in conduct constituting an offense under 
     section 506. Upon proof of such conduct by a preponderance of 
     the evidence, such person shall be subject to a civil penalty 
     under section 504 which shall be in an amount equal to the 
     amount which would be awarded under section 3663(a)(1)(B) of 
     title 18 and restitution to the copyright owner aggrieved by 
     the conduct.
       ``(b) Other Remedies.--
       ``(1) In general.--Imposition of a civil penalty under this 
     section does not preclude any other criminal or civil 
     statutory, injunctive, common law, or administrative remedy, 
     which is available by law to the United States or any other 
     person.
       ``(2) Offset.--Any restitution received by a copyright 
     owner as a result of a civil action brought under this 
     section shall be offset against any award of damages in a 
     subsequent copyright infringement civil action by that 
     copyright owner for the conduct that gave rise to the civil 
     action brought under this section.''.
       (b) Damages and Profits.--Section 504 of title 17, United 
     States Code, is amended--
       (1) in subsection (b)--
       (A) in the first sentence--
       (i) by inserting ``, or the Attorney General in a civil 
     action,'' after ``The copyright owner''; and
       (ii) by striking ``him or her'' and inserting ``the 
     copyright owner''; and
       (B) in the second sentence by inserting ``, or the Attorney 
     General in a civil action,'' after ``the copyright owner''; 
     and
       (2) in subsection (c)--
       (A) in paragraph (1), by inserting ``, or the Attorney 
     General in a civil action,'' after ``the copyright owner''; 
     and
       (B) in paragraph (2), by inserting ``, or the Attotrney 
     General in a civil action,'' after ``the copyright owner''.
       (c) Technical and Conforming Amendment.--The table of 
     sections for chapter 5 of title 17, United States Code, is 
     amended by inserting after the item relating to section 506 
     the following:

``506a. Civil penalties for violation of section 506.''.

     SEC. 3. IMPROVED INVESTIGATIVE AND FORENSIC RESOURCES FOR 
                   ENFORCEMENT OF LAWS RELATED TO INTELLECTUAL 
                   PROPERTY CRIMES.

       (a) In General.--The Attorney General, in consultation with 
     the Director of the Federal Bureau of Investigation, shall, 
     with respect to crimes related to the theft of intellectual 
     property--
       (1) create an operational unit of the Federal Bureau of 
     Investigation--
       (A) to work with the Computer Crime and Intellectual 
     Property section of the Department of Justice on the 
     investigation and coordination of intellectual property 
     crimes that are complex, committed in more than 1 judicial 
     district, or international;
       (B) that consists of at least 10 agents of the Bureau; and
       (C) that is located at the headquarters of the Bureau;
       (2) ensure that any unit in the Department of Justice 
     responsible for investigating computer hacking or 
     intellectual property crimes is assigned at least 2 agents of 
     the Federal Bureau of Investigation (in addition to any agent 
     assigned to such unit as of the date of the enactment of this 
     Act) to support such unit for the purpose of investigating or 
     prosecuting intellectual property crimes; and
       (3) implement a comprehensive program--
       (A) the purpose of which is to train agents of the Federal 
     Bureau of Investigation in the investigation and prosecution 
     of such crimes and the enforcement of laws related to 
     intellectual property crimes;
       (B) that includes relevant forensic training related to 
     investigating and prosecuting intellectual property crimes; 
     and
       (C) that requires such agents who investigate or prosecute 
     intellectual property crimes to attend the program annually.
       (b) Intellectual Property Law Enforcement Coordinators.--
     Not later than 120

[[Page S14065]]

     days after the date of the enactment of this Act, the 
     Attorney General shall assign 1 Federal prosecutor to the 
     appropriate office of the Department of Justice located in 
     Hong Kong and 1 Federal prosecutor to such an office located 
     in Budapest, Hungary, to assist in the coordination of the 
     enforcement of intellectual property laws between the United 
     States and foreign nations.
       (c) Organized Crime Task Force.--Not later than 120 days 
     after the date of the enactment of this Act, the Attorney 
     General, through the United States Attorneys' Offices, the 
     Computer Crime and Intellectual Property section, and the 
     Organized Crime and Racketeering section of the Department of 
     Justice, and in consultation with the Federal Bureau of 
     Investigation and other Federal law enforcement agencies, 
     shall create a Task Force to develop and implement a 
     comprehensive, long-range plan to investigate and prosecute 
     international organized crime syndicates engaging in or 
     supporting crimes relating to the theft of intellectual 
     property.
       (d) Authorization.--There are authorized to be appropriated 
     to carry out this section $12,000,000 for each of fiscal 
     years 2008 through 2011.

     SEC. 4. ADDITIONAL FUNDING FOR RESOURCES TO INVESTIGATE AND 
                   PROSECUTE CRIMINAL ACTIVITY INVOLVING 
                   COMPUTERS.

       (a) Additional Funding for Resources.--
       (1) Authorization.--In addition to amounts otherwise 
     authorized for resources to investigate and prosecute 
     criminal activity involving computers, there are authorized 
     to be appropriated for each of the fiscal years 2008 through 
     2011--
       (A) $10,000,000 to the Director of the Federal Bureau of 
     Investigation; and
       (B) $10,000,000 to the Attorney General for the Criminal 
     Division of the Department of Justice.
       (2) Availability.--Any amounts appropriated under paragraph 
     (1) shall remain available until expended.
       (b) Use of Additional Funding.--Funds made available under 
     subsection (a) shall be used by the Director of the Federal 
     Bureau of Investigation and the Attorney General, for the 
     Federal Bureau of Investigation and the Criminal Division of 
     the Department of Justice, respectively, to--
       (1) hire and train law enforcement officers to--
       (A) investigate crimes committed through the use of 
     computers and other information technology, including through 
     the use of the Internet; and
       (B) assist in the prosecution of such crimes; and
       (2) procure advanced tools of forensic science to 
     investigate, prosecute, and study such crimes.

     SEC. 5. REGISTRATION IN CIVIL INFRINGEMENT ACTIONS.

       (a) Limitation to Civil Actions; Harmless Error.--Section 
     411 of title 17, United States Code, is amended--
       (1) in the section heading, by inserting ``civil'' before 
     ``infringement'';
       (2) in subsection (a)--
       (A) in the first sentence, by striking ``no action'' and 
     inserting ``no civil action''; and
       (B) in the second sentence, by striking ``an action'' and 
     inserting ``a civil action'';
       (3) in subsection (b)--
       (A) by redesignating that subsection as subsection (c); and
       (B) by striking ``506 and sections 509 and'' and inserting 
     ``505 and section''; and
       (4) by inserting after subsection (a) the following:
       ``(b)(1) A certificate of registration satisfies the 
     requirements of this section and section 412, regardless of 
     whether the certificate contains any inaccurate information, 
     unless--
       ``(A) the inaccurate information was included on the 
     application for copyright registration with knowledge that it 
     was inaccurate; and
       ``(B) the inaccurate information, if known, would have 
     caused the Register of Copyrights to refuse registration.
       ``(2) In any case in which inaccurate information described 
     under paragraph (1) is alleged, the court shall request the 
     Register of Copyrights to advise the court whether the 
     inaccurate information, if known, would have caused the 
     Register of Copyrights to refuse registration.'';''.
       (b) Technical and Conforming Amendments.--
       (1) Section 412 of title 17, United States Code, is amended 
     by striking ``411(b)'' and inserting ``411(c)''.
       (2) The item relating to section 411 in the table of 
     sections for chapter 4 of title 17, United States Code, is 
     amended to read as follows:

``411. Registration and civil infringement actions.''.

     SEC. 6. CIVIL REMEDIES FOR INFRINGEMENT.

       (a) In General.--Section 503(a) of title 17, United States 
     Code, is amended--
       (1) by striking ``and of all plates'' and inserting ``, of 
     all plates''; and
       (2) by striking the period and inserting ``, and of records 
     documenting the manufacture, sale, or receipt of things 
     involved in such violation. The court shall enter an 
     appropriate protective order with respect to discovery of any 
     records that have been seized. The protective order shall 
     provide for appropriate procedures to assure that 
     confidential information contained in such records is not 
     improperly disclosed to any party.''.
       (b) Protective Orders for Seized Records.--Section 
     34(d)(1)(A) of the Act entitled ``An Act to provide for the 
     registration and protection of trademarks used in commerce, 
     to carry out the provisions of certain international 
     conventions, and for other purposes.'', approved July 5, 1946 
     (commonly referred to as the Trademark Act of 1946) (15 
     U.S.C. 1116(d)(1)(A)) is amended by adding ``The court shall 
     enter an appropriate protective order with respect to 
     discovery of any records that have been seized. The 
     protective order shall provide for appropriate procedures to 
     assure that confidential information contained in such 
     records is not improperly disclosed to any party.'' after the 
     first sentence.

     SEC. 7. CRIMINAL INFRINGEMENT.

       (a) Forfeiture and Destruction; Restitution.--Section 
     506(b) of title 17, United States Code, is amended to read as 
     follows:
       ``(b) Forfeiture, Destruction, and Restitution.--
     Forfeiture, destruction, and restitution relating to this 
     section shall be subject to section 2323 of title 18, to the 
     extent provided in that section, in addition to any other 
     similar remedies provided by law.''.
       (b) Seizures and Forfeitures.--
       (1) Repeal.--Section 509 of title 17, United States Code, 
     is repealed.
       (2) Technical and conforming amendment.--The table of 
     sections for chapter 5 of title 17, United States Code, is 
     amended by striking the item relating to section 509.

     SEC. 8. IMPORTATION AND EXPORTATION.

       (a) Importation and Exportation of Infringing Items.--
     Section 602(a) of title 17, United States Code, is amended--
       (1) by redesignating paragraphs (1), (2), and (3) as 
     subparagraphs (A), (B), and (C);
       (2) in the first sentence, by striking ``Importation'' and 
     inserting ``(1) Importation'';
       (3) by striking ``106, actionable'' and inserting ``106 and 
     is actionable'';
       (4) by striking ``This subsection does not apply to--'' and 
     inserting the following:
       ``(2) Importation into the United States or exportation 
     from the United States, without the authority of the owner of 
     copyright under this title, of copies or phonorecords, the 
     making of which either constituted an infringement of 
     copyright or would have constituted an infringement of 
     copyright if this title had been applicable, is an 
     infringement of the exclusive right to distribute copies or 
     phonorecords under section 106 and is actionable under 
     sections 501 and 506.
       ``(3) This subsection does not apply to--'';
       (5) in subparagraph (A), as redesignated, by inserting ``or 
     exportation'' after ``importation'';
       (6) in subparagraph (B), as redesignated--
       (A) by striking ``, for the private use of the importer'' 
     and inserting ``or exportation, for the private use of the 
     importer or exporter''; and
       (B) by inserting ``or departing from the United States'' 
     after ``outside the United States''.
       (b) Technical and Conforming Amendments.--(1) The section 
     heading for section 602 of title 17, United States Code, is 
     amended by inserting ``or exportation'' after 
     ``importation''.
       (2) The table of sections for chapter 6 of title 17, United 
     States Code, is amended by inserting ``or exportation'' after 
     ``importation''.
       (3) The heading for chapter 6 of title 17, United States 
     Code, is amended to read as follows:

       ``CHAPTER 6--MANUFACTURING REQUIREMENTS, IMPORTATION, AND 
                             EXPORTATION''.

       (4) The item relating to chapter 6 in the table of chapters 
     for title 17, United States Code, is amended to read as 
     follows:

``6.  Manufacturing Requirements, Importation, and Exportatio601''.....

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

       Section 1201 of title 17, United States Code, is amended--
       (1) in subsection (a)--
       (A) in paragraph (2), by striking ``import,''; and
       (B) in paragraph (3)--
       (i) in subparagraph (A), by striking ``and'' after the 
     semicolon;
       (ii) in subparagraph (B), by striking the period and 
     inserting ``; and'';
       (iii) by redesignating subparagraph (B) as subparagraph 
     (C), and inserting after subparagraph (A) the following:
       ``(B) the term `financial gain' includes receipt, or 
     expectation of receipt, of anything of value, including the 
     receipt of other copyrighted works;''; and
       (iv) by adding at the end the following:
       ``(C) the term `traffic in' means to transport, transfer, 
     or otherwise dispose of, to another, for purposes of 
     commercial advantage or private financial gain, or to make, 
     import, export, obtain control of, or possess, with intent to 
     so transport, transfer, or otherwise dispose of.''; and
       (2) in subsection (b)--
       (A) in paragraph (1), by striking ``import,''; and
       (B) in paragraph (2)--
       (i) in subparagraph (A), by striking ``and'' after the 
     semicolon;
       (ii) in subparagraph (B), by striking the period and 
     inserting ``; and'';
       (iii) by redesignating subparagraph (B) as subparagraph 
     (C), and inserting after subparagraph (A) the following:
       ``(B) the term `financial gain' includes receipt, or 
     expectation of receipt, of anything of value, including the 
     receipt of other copyrighted works;''; and
       (iv) by adding at the end the following:

[[Page S14066]]

       ``(D) the term `traffic in' means to transport, transfer, 
     or otherwise dispose of, to another, or to make, import, 
     export, obtain control of, or possess, with intent to so 
     transport, transfer, or otherwise dispose of.''.

     SEC. 10. FORFEITURE UNDER ECONOMIC ESPIONAGE ACT.

       Section 1834 of title 18, United States Code, is amended to 
     read as follows:

     ``Sec. 1834. Criminal forfeiture

       ``Forfeiture, destruction, and restitution relating to this 
     chapter shall be subject to section 2323, to the extent 
     provided in that section, in addition to any other similar 
     remedies provided by law.''.

     SEC. 11. TRAFFICKING IN COUNTERFEIT LABELS, ILLICIT LABELS, 
                   OR COUNTERFEIT DOCUMENTATION OR PACKAGING FOR 
                   WORKS THAT CAN BE COPYRIGHTED.

       Section 2318 of title 18, United States Code, is amended as 
     follows:
       (1) Subsection (a) is amended----
       (A) by redesignating subparagraphs (A) through (G) as 
     clauses (i) through (vii), respectively;
       (B) by redesignating paragraphs (1) and (2) as 
     subparagraphs (A) and (B), respectively; and
       (C) by striking ``Whoever'' and inserting ``(1) Whoever''.
       (2) Section 2318(d) is amended to read as follows:
       ``(d) Forfeiture and Destruction of Property; 
     Restitution.--Forfeiture, destruction, and restitution 
     relating to this section shall be subject to section 2323, to 
     the extent provided in that section, in addition to any other 
     similar remedies provided by law.''.
       (3) Section 2318 is further amended by striking subsection 
     (e) and redesignating subsection (f) as subsection (e).

     SEC. 12. UNAUTHORIZED RECORDING OF MOTION PICTURES.

       Section 2319B(b) of title 18, United States Code, is 
     amended to read as follows:
       ``(b) Forfeiture and Destruction of Property; 
     Restitution.--Forfeiture, destruction, and restitution 
     relating to this section shall be subject to section 2323, to 
     the extent provided in that section, in addition to any other 
     similar remedies provided by law.''.

     SEC. 13. TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES.

       Section 2320(b) of title 18, United States Code, is amended 
     to read as follows:
       ``(b) Forfeiture and Destruction of Property; 
     Restitution.--Forfeiture, destruction, and restitution 
     relating to this section shall be subject to section 2323, to 
     the extent provided in that section, in addition to any other 
     similar remedies provided by law.''.

     SEC. 14. FORFEITURE, DESTRUCTION, AND RESTITUTION.

       (a) In General.--Chapter 113 of title 18, United States 
     Code, is amended by adding at the end the following:

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

       ``(a) Civil Forfeiture.--
       ``(1) Property subject to forfeiture.--The following 
     property is subject to forfeiture to the United States:
       ``(A) Any article the making or trafficking of which is 
     prohibited under section 506 or 1204 of title 17, or section 
     2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this 
     title.
       ``(B) Any property used, or intended to be used, in any 
     manner or part to commit or facilitate the commission of an 
     offense referred to in subparagraph (A).
       ``(C) Any property constituting or derived from any 
     proceeds obtained directly or indirectly as a result of the 
     commission of an offense referred to in subparagraph (A).
       ``(2) Procedures.--The provisions of chapter 46 relating to 
     civil forfeitures shall extend to any seizure or civil 
     forfeiture under this section. At the conclusion of the 
     forfeiture proceedings, unless otherwise requested by an 
     agency of the United States, the court shall order that any 
     property forfeited under paragraph (1) be destroyed, or 
     otherwise disposed of according to law.
       ``(b) Criminal Forfeiture.--
       ``(1) Property subject to forfeiture.--The court, in 
     imposing sentence on a person convicted of an offense under 
     section 506 or 1204 of title 17, or section 2318, 2319, 
     2319A, 2319B, or 2320, or chapter 90, of this title, shall 
     order, in addition to any other sentence imposed, that the 
     person forfeit to the United States any property subject to 
     forfeiture under subsection (a) for that offense.
       ``(2) Procedures.--
       ``(A) In general.--The forfeiture of property under 
     paragraph (1), including any seizure and disposition of the 
     property and any related judicial or administrative 
     proceeding, shall be governed by the procedures set forth in 
     section 413 of the Comprehensive Drug Abuse Prevention and 
     Control Act of 1970 (21 U.S.C. 853), other than subsection 
     (d) of that section.
       ``(B) Destruction.--At the conclusion of the forfeiture 
     proceedings, the court, unless otherwise requested by an 
     agency of the United States--
       ``(i) shall order that any forfeited article or component 
     of an article bearing or consisting of a counterfeit mark be 
     destroyed or otherwise disposed of according to law; and
       ``(ii) shall order that any infringing items or other 
     property described in subsection (a)(1)(A) and forfeited 
     under paragraph (1) of this subsection be destroyed or 
     otherwise disposed of according to law.
       ``(c) Restitution.--When a person is convicted of an 
     offense under section 506 or 1204 of title 17 or section 
     2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this 
     title, the court, pursuant to sections 3556, 3663A, and 3664 
     of this title, shall order the person to pay restitution to 
     any victim of the offense as an offense against property 
     referred to in section 3663A(c)(1)(A)(ii) of this title.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 113 of title 18, United States Code, is 
     amended by adding at the end the following:

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

     SEC. 15. TECHNICAL AND CONFORMING AMENDMENTS.

       (a) Amendments to Title 17, United States Code.--
       (1) Section 109 (b)(4) of title 17, United States Code, is 
     amended by striking ``505, and 509'' and inserting ``and 
     505''.
       (2) Section 111 of title 17, United States Code, is 
     amended--
       (A) in subsection (b), by striking ``and 509'';
       (B) in subsection (c)--
       (i) in paragraph (2), by striking ``and 509'';
       (ii) in paragraph (3), by striking ``sections 509 and 510'' 
     and inserting ``section 510''; and
       (iii) in paragraph (4), by striking ``and section 509''; 
     and
       (C) in subsection (e)--
       (i) in paragraph (1), by striking ``sections 509 and 510'' 
     and inserting ``section 510''; and
       (ii) in paragraph (2), by striking ``and 509''.
       (3) Section 115(c) of title 17, United States Code, is 
     amended--
       (A) in paragraph (3)(G)(i), by striking ``and 509''; and
       (B) in paragraph (6), by striking ``and 509''.
       (4) Section 119(a) of title 17, United States Code, is 
     amended--
       (A) in paragraph (6), by striking ``sections 509 and 510'' 
     and inserting ``section 510'';
       (B) in paragraph (7)(A), by striking ``and 509'';
       (C) in paragraph (8), by striking ``and 509''; and
       (D) in paragraph (13), by striking ``and 509''.
       (5) Section 122 of title 17, United States Code, is 
     amended--
       (A) in subsection (d), by striking ``and 509'';
       (B) in subsection (e), by striking ``sections 509 and 510'' 
     and inserting ``section 510''; and
       (C) in subsection (f)(1), by striking ``and 509''.
       (6) Section 411(b) of title 17, United States Code, is 
     amended by striking ``sections 509 and 510'' and inserting 
     ``section 510''.
       (b) Other Amendments.--Section 596(c)(2)(c) of the Tariff 
     Act of 1950 (19 U.S.C. 1595a(c)(2)(c)) is amended by striking 
     ``or 509''.
                                 ______