[Congressional Record (Bound Edition), Volume 151 (2005), Part 5]
[House]
[Pages 6927-6933]
[From the U.S. Government Publishing Office, www.gpo.gov]




             FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005

  Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass 
the Senate bill (S. 167) to provide for the protection of intellectual 
property rights, and for other purposes.
  The Clerk read as follows:

[[Page 6928]]



                                 S. 167

       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 ``Family Entertainment and 
     Copyright Act of 2005''.

             TITLE I--ARTISTS' RIGHTS AND THEFT PREVENTION

     SEC. 101. SHORT TITLE.

       This title may be cited as the ``Artists' Rights and Theft 
     Prevention Act of 2005'' or the ``ART Act''.

     SEC. 102. 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 a violation of 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.--With reasonable cause, the 
     owner or lessee of a motion picture exhibition facility where 
     a motion picture or other audiovisual work is being 
     exhibited, the authorized agent or employee of such owner or 
     lessee, the licensor of the motion picture or other 
     audiovisual work 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 a violation of this 
     section with respect to that motion picture or audiovisual 
     work for the purpose of questioning or summoning a law 
     enforcement officer; and
       ``(2) shall not be held liable in any civil or criminal 
     action arising out 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, 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) 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.
       ``(g) Definitions.--In this section, the following 
     definitions shall apply:
       ``(1) Title 17 definitions.--The terms `audiovisual work', 
     `copy', `copyright owner', `motion picture', `motion picture 
     exhibition facility', 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.''.
       (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.''.

       (c) Definition.--Section 101 of title 17, United States 
     Code, is amended by inserting after the definition of 
     ``Motion pictures'' the following: ``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.''.

     SEC. 103. CRIMINAL INFRINGEMENT OF A WORK BEING PREPARED FOR 
                   COMMERCIAL DISTRIBUTION.

       (a) Prohibited Acts.--Section 506(a) of title 17, United 
     States Code, is amended to read as follows:
       ``(a) Criminal Infringement.--
       ``(1) In general.--Any person who willfully infringes a 
     copyright shall be punished as provided under section 2319 of 
     title 18, if the infringement was committed--
       ``(A) for purposes of commercial advantage or private 
     financial gain;
       ``(B) by the reproduction or distribution, including 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
       ``(C) by the distribution of a work being prepared for 
     commercial distribution, by making it available on a computer 
     network accessible to members of the public, if such person 
     knew or should have known that the work was intended for 
     commercial distribution.
       ``(2) Evidence.--For purposes of this subsection, evidence 
     of reproduction or distribution of a copyrighted work, by 
     itself, shall not be sufficient to establish willful 
     infringement of a copyright.
       ``(3) Definition.--In this subsection, the term `work being 
     prepared for commercial distribution' means--
       ``(A) a computer program, a musical work, a motion picture 
     or other audiovisual work, or a sound recording, if, at the 
     time of unauthorized distribution--
       ``(i) the copyright owner has a reasonable expectation of 
     commercial distribution; and
       ``(ii) the copies or phonorecords of the work have not been 
     commercially distributed; or
       ``(B) a motion picture, if, at the time of unauthorized 
     distribution, the motion picture--
       ``(i) has been made available for viewing in a motion 
     picture exhibition facility; and
       ``(ii) has not been made available in copies for sale to 
     the general public in the United States in a format intended 
     to permit viewing outside a motion picture exhibition 
     facility.''.
       (b) Criminal Penalties.--Section 2319 of title 18, United 
     States Code, is amended--
       (1) in subsection (a)--
       (A) by striking ``Whoever'' and inserting ``Any person 
     who''; and
       (B) by striking ``and (c) of this section'' and inserting 
     ``, (c), and (d)'';
       (2) in subsection (b), by striking ``section 506(a)(1)'' 
     and inserting ``section 506(a)(1)(A)'';
       (3) in subsection (c), by striking ``section 506(a)(2) of 
     title 17, United States Code'' and inserting ``section 
     506(a)(1)(B) of title 17'';
       (4) by redesignating subsections (d) and (e) as subsections 
     (e) and (f), respectively;
       (5) by adding after subsection (c) the following:
       ``(d) Any person who commits an offense under section 
     506(a)(1)(C) of title 17--
       ``(1) shall be imprisoned not more than 3 years, fined 
     under this title, or both;
       ``(2) shall be imprisoned not more than 5 years, fined 
     under this title, or both, if the offense was committed for 
     purposes of commercial advantage or private financial gain;
       ``(3) shall be imprisoned not more than 6 years, fined 
     under this title, or both, if the offense is a second or 
     subsequent offense; and
       ``(4) shall be imprisoned not more than 10 years, fined 
     under this title, or both, if the offense is a second or 
     subsequent offense under paragraph (2).''; and
       (6) in subsection (f), as redesignated--
       (A) in paragraph (1), by striking ``and'' at the end;
       (B) in paragraph (2), by striking the period at the end and 
     inserting a semicolon; and
       (C) by adding at the end the following:
       ``(3) the term `financial gain' has the meaning given the 
     term in section 101 of title 17; and
       ``(4) the term `work being prepared for commercial 
     distribution' has the meaning given the term in section 
     506(a) of title 17.''.

     SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK BEING 
                   PREPARED FOR COMMERCIAL DISTRIBUTION.

       (a) Preregistration.--Section 408 of title 17, United 
     States Code, is amended by adding at the end the following:
       ``(f) Preregistration of Works Being Prepared for 
     Commercial Distribution.--

[[Page 6929]]

       ``(1) Rulemaking.--Not later than 180 days after the date 
     of enactment of this subsection, the Register of Copyrights 
     shall issue regulations to establish procedures for 
     preregistration of a work that is being prepared for 
     commercial distribution and has not been published.
       ``(2) Class of works.--The regulations established under 
     paragraph (1) shall permit preregistration for any work that 
     is in a class of works that the Register determines has had a 
     history of infringement prior to authorized commercial 
     distribution.
       ``(3) Application for registration.--Not later than 3 
     months after the first publication of a work preregistered 
     under this subsection, the applicant shall submit to the 
     Copyright Office--
       ``(A) an application for registration of the work;
       ``(B) a deposit; and
       ``(C) the applicable fee.
       ``(4) Effect of untimely application.--An action under this 
     chapter for infringement of a work preregistered under this 
     subsection, in a case in which the infringement commenced no 
     later than 2 months after the first publication of the work, 
     shall be dismissed if the items described in paragraph (3) 
     are not submitted to the Copyright Office in proper form 
     within the earlier of--
       ``(A) 3 months after the first publication of the work; or
       ``(B) 1 month after the copyright owner has learned of the 
     infringement.''.
       (b) Infringement Actions.--Section 411(a) of title 17, 
     United States Code, is amended by inserting ``preregistration 
     or'' after ``shall be instituted until''.
       (c) Exclusion.--Section 412 of title 17, United States 
     Code, is amended by inserting after ``section 106A(a)'' the 
     following: ``, an action for infringement of the copyright of 
     a work that has been preregistered under section 408(f) 
     before the commencement of the infringement and that has an 
     effective date of registration not later than the earlier of 
     3 months after the first publication of the work or 1 month 
     after the copyright owner has learned of the infringement,''.

     SEC. 105. FEDERAL SENTENCING GUIDELINES.

       (a) Review and Amendment.--Not later than 180 days after 
     the date of enactment of this Act, the United States 
     Sentencing Commission, pursuant to its authority under 
     section 994 of title 28, United States Code, and in 
     accordance with this section, shall review and, if 
     appropriate, amend the Federal sentencing guidelines and 
     policy statements applicable to persons convicted of 
     intellectual property rights crimes, including any offense 
     under--
       (1) section 506, 1201, or 1202 of title 17, United States 
     Code; or
       (2) section 2318, 2319, 2319A, 2319B, or 2320 of title 18, 
     United States Code.
       (b) Authorization.--The United States Sentencing Commission 
     may amend the Federal sentencing guidelines in accordance 
     with the procedures set forth in section 21(a) of the 
     Sentencing Act of 1987 (28 U.S.C. 994 note) as though the 
     authority under that section had not expired.
       (c) Responsibilities of United States Sentencing 
     Commission.--In carrying out this section, the United States 
     Sentencing Commission shall--
       (1) take all appropriate measures to ensure that the 
     Federal sentencing guidelines and policy statements described 
     in subsection (a) are sufficiently stringent to deter, and 
     adequately reflect the nature of, intellectual property 
     rights crimes;
       (2) determine whether to provide a sentencing enhancement 
     for those convicted of the offenses described in subsection 
     (a), if the conduct involves the display, performance, 
     publication, reproduction, or distribution of a copyrighted 
     work before it has been authorized by the copyright owner, 
     whether in the media format used by the infringing party or 
     in any other media format;
       (3) determine whether the scope of ``uploading'' set forth 
     in application note 3 of section 2B5.3 of the Federal 
     sentencing guidelines is adequate to address the loss 
     attributable to people who, without authorization, broadly 
     distribute copyrighted works over the Internet; and
       (4) determine whether the sentencing guidelines and policy 
     statements applicable to the offenses described in subsection 
     (a) adequately reflect any harm to victims from copyright 
     infringement if law enforcement authorities cannot determine 
     how many times copyrighted material has been reproduced or 
     distributed.

  TITLE II--EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO 
                       CONTENT IN MOTION PICTURES

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Family Movie Act of 
     2005''.

     SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND 
                   VIDEO CONTENT IN MOTION PICTURES.

       (a) In General.--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 to be used, at the direction of a 
     member of a private household, for such making imperceptible, 
     if no fixed copy of the altered version of the motion picture 
     is created by such computer program or other technology.''; 
     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.
       ``Nothing in paragraph (11) shall be construed to imply 
     further rights under section 106 of this title, or to have 
     any effect on defenses or limitations on rights granted under 
     any other section of this title or under any other paragraph 
     of this section.''.
       (b) 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, nor shall it be construed to restrict 
     the defenses or limitations on rights granted under this Act, 
     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 as described in 
     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. The 
     limitations on liability in subparagraph (A) and this 
     subparagraph shall not apply to a manufacturer, licensee, or 
     licensor of technology that fails to comply with this 
     paragraph.
       ``(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 2005.
       ``(D) Any failure by a manufacturer, licensee, or licensor 
     of technology to qualify for the exemption under 
     subparagraphs (A) and (B) shall not be construed to create an 
     inference that any such party that engages in conduct 
     described in paragraph (11) of section 110 of title 17, 
     United States Code, is liable for trademark infringement by 
     reason of such conduct.''.
       (c) 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 III--NATIONAL FILM PRESERVATION

  Subtitle A--Reauthorization of the National Film Preservation Board

     SEC. 301. SHORT TITLE.

       This subtitle may be cited as the ``National Film 
     Preservation Act of 2005''.

     SEC. 302. REAUTHORIZATION AND AMENDMENT.

       (a) Duties of the Librarian of Congress.--Section 103 of 
     the National Film Preservation Act of 1996 (2 U.S.C. 179m) is 
     amended--
       (1) in subsection (b)--
       (A) by striking ``film copy'' each place that term appears 
     and inserting ``film or other approved copy'';
       (B) by striking ``film copies'' each place that term 
     appears and inserting ``film or other approved copies''; and
       (C) in the third sentence, by striking ``copyrighted'' and 
     inserting ``copyrighted, mass distributed, broadcast, or 
     published''; and
       (2) by adding at the end the following:
       ``(c) Coordination of Program With Other Collection, 
     Preservation, and Accessibility Activities.--In carrying out 
     the comprehensive national film preservation program for 
     motion pictures established under the National Film 
     Preservation Act of 1992, the Librarian, in consultation with 
     the Board established pursuant to section 104, shall--
       ``(1) carry out activities to make films included in the 
     National Film registry more broadly accessible for research 
     and educational purposes, and to generate public awareness 
     and support of the Registry and the comprehensive national 
     film preservation program;

[[Page 6930]]

       ``(2) review the comprehensive national film preservation 
     plan, and amend it to the extent necessary to ensure that it 
     addresses technological advances in the preservation and 
     storage of, and access to film collections in multiple 
     formats; and
       ``(3) wherever possible, undertake expanded initiatives to 
     ensure the preservation of the moving image heritage of the 
     United States, including film, videotape, television, and 
     born digital moving image formats, by supporting the work of 
     the National Audio-Visual Conservation Center of the Library 
     of Congress, and other appropriate nonprofit archival and 
     preservation organizations.''.
       (b) National Film Preservation Board.--Section 104 of the 
     National Film Preservation Act of 1996 (2 U.S.C. 179n) is 
     amended--
       (1) in subsection (a)(1) by striking ``20'' and inserting 
     ``22'';
       (2) in subsection (a) (2) by striking ``three'' and 
     inserting ``5'';
       (3) in subsection (d) by striking ``11'' and inserting 
     ``12''; and
       (4) by striking subsection (e) and inserting the following:
       ``(e) Reimbursement of Expenses.--Members of the Board 
     shall serve without pay, but may receive travel expenses, 
     including per diem in lieu of subsistence, in accordance with 
     sections 5702 and 5703 of title 5, United States Code.''.
       (c) National Film Registry.--Section 106 of the National 
     Film Preservation Act of 1996 (2 U.S.C. 179p) is amended by 
     adding at the end the following:
       ``(e) National Audio-Visual Conservation Center.--The 
     Librarian shall utilize the National Audio-Visual 
     Conservation Center of the Library of Congress at Culpeper, 
     Virginia, to ensure that preserved films included in the 
     National Film Registry are stored in a proper manner, and 
     disseminated to researchers, scholars, and the public as may 
     be appropriate in accordance with--
       ``(1) title 17, United States Code; and
       ``(2) the terms of any agreements between the Librarian and 
     persons who hold copyrights to such audiovisual works.''.
       (d) Use of Seal.--Section 107 (a) of the National Film 
     Preservation Act of 1996 (2 U.S.C. 179q(a)) is amended--
       (1) in paragraph (1), by inserting ``in any format'' after 
     ``or any copy''; and
       (2) in paragraph (2), by striking ``or film copy'' and 
     inserting ``in any format''.
       (e) Effective Date.--Section 113 of the National Film 
     Preservation Act of 1996 (2 U.S.C. 179w) is amended by 
     striking ``7'' and inserting ``13''.

     Subtitle B--Reauthorization of the National Film Preservation 
                               Foundation

     SEC. 311. SHORT TITLE.

       This subtitle may be cited as the ``National Film 
     Preservation Foundation Reauthorization Act of 2005''.

     SEC. 312. REAUTHORIZATION AND AMENDMENT.

       (a) Board of Directors.--Section 151703 of title 36, United 
     States Code, is amended--
       (1) in subsection (b)(2)(A), by striking ``nine'' and 
     inserting ``12''; and
       (2) in subsection (b)(4), by striking the second sentence 
     and inserting ``There shall be no limit to the number of 
     terms to which any individual may be appointed.''.
       (b) Powers.--Section 151705 of title 36, United States 
     Code, is amended in subsection (b) by striking ``District of 
     Columbia'' and inserting ``the jurisdiction in which the 
     principal office of the corporation is located''.
       (c) Principal Office.--Section 151706 of title 36, United 
     States Code, is amended by inserting ``, or another place as 
     determined by the board of directors'' after ``District of 
     Columbia''.
       (d) Authorization of Appropriations.--Section 151711 of 
     title 36, United States Code, is amended by striking 
     subsections (a) and (b) and inserting the following:
       ``(a) Authorization of Appropriations.--There are 
     authorized to be appropriated to the Library of Congress 
     amounts necessary to carry out this chapter, not to exceed 
     $530,000 for each of the fiscal years 2005 through 2009. 
     These amounts are to be made available to the corporation to 
     match any private contributions (whether in currency, 
     services, or property) made to the corporation by private 
     persons and State and local governments.
       ``(b) Limitation Related to Administrative Expenses.--
     Amounts authorized under this section may not be used by the 
     corporation for management and general or fundraising 
     expenses as reported to the Internal Revenue Service as part 
     of an annual information return required under the Internal 
     Revenue Code of 1986.''.

                 TITLE IV--PRESERVATION OF ORPHAN WORKS

     SEC. 401. SHORT TITLE.

       This title may be cited as the ``Preservation of Orphan 
     Works Act''.

     SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND 
                   ARCHIVES.

       Section 108(i) of title 17, United States Code, is amended 
     by striking ``(b) and (c)'' and inserting ``(b), (c), and 
     (h)''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Wisconsin (Mr. Sensenbrenner) and the gentleman from California (Mr. 
Berman) 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 S. 167, 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, S. 167 includes several intellectual property-related 
measures that were considered during the previous Congress, but were 
unable to be acted on by both Houses prior to adjournment.
  Notably, this legislation addresses the growing desire of parents to 
be able to control what their children see in the privacy of their own 
homes. One component of this legislation, the Family Movie Act, 
clarifies that existing copyright and trademark law cannot be used to 
prevent a parent from utilizing available technology to skip over 
portions of a movie they may find objectionable.
  The legislation also addresses the rampant piracy problem facing our 
Nation's creative community. New technologies have made theft and 
duplication of copyrighted works easier than ever before. The number of 
pirated films continues to increase, causing severe harm to the bottom 
line of our Nation's copyright holders. Additionally, the theft, 
duplication and mass distribution of copyrighted works represents a 
drain on our economy, shrinking the global demand for legitimately 
acquired works.
  By setting forth Federal criminal penalties, this legislation 
addresses the serious problem of individuals using camcorders to record 
recently released movies that are then copied and sold on the black 
market. Additionally, this legislation establishes criminal penalties 
for the distribution of a copyrighted computer program, musical work or 
motion picture by making it available on a computer network accessible 
to members of the public if the person knew, or should have known, that 
the work was a copyrighted work intended for commercial distribution.
  Finally, this legislation reauthorizes the Film Preservation Board at 
the Library of Congress and corrects a technical error in the Sonny 
Bono Copyright Term Extension Act that had the unintended effect of 
limiting the ability of libraries and archives to access older 
copyrighted works.
  Mr. Speaker, I urge the Members to support this legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. BERMAN. Mr. Speaker, I yield myself 6 minutes.
  Mr. Speaker, I rise in support of S. 167, and I ask my colleagues to 
join me in voting to pass this worthy legislation.
  Prior to reporting S. 167 by voice vote last month, the Committee on 
the Judiciary gave the bill all due deliberation. The provisions in 
this bill and its precursor, H.R. 4077, which passed the House last 
year, were the subject of multiple subcommittee hearings and markups.
  Through the extensive consideration given on the provisions of S. 
167, the Committee on the Judiciary has agreed to a bill that makes 
important contributions to the fight against the proliferation of 
pirated copyrighted works and that encourages the preservation and 
protection of creative content.

                              {time}  1430

  In addition to providing us with entertainment and education in the 
form of movies, sound recordings, software, books, computer games and 
other products, the core copyright industries account for over 6 
percent of U.S. gross domestic product. Businesses that rely on 
copyright employ more than 11 million U.S. workers. Robust protection 
for creativity supports everyone from the most famous artist to the 
completely unknown set designer.
  Unfortunately, copyright piracy has become a grave threat to the 
livelihoods of all copyright creators. We live

[[Page 6931]]

in an environment where consumers want their choice of entertainment to 
be available at any time, in any place, in any format. While copyright 
owners are excited by the new opportunities to allow greater access to 
their works, they must battle with those that give away their products 
for free.
  Pirates have taken over the ship of distribution and now provide 
users with sound recordings before they are released, copies of movies 
for $1 on the street, and pirated computer software as part of the sale 
of computers. Without adequate copyright protection, the developers and 
creators of new and original works have no protection from the rampant 
theft of their work that goes on every day. While not a magic bullet, 
S. 167 will play a valuable role in addressing the piracy problem. Last 
year's bill provided more expansive protection. However, S. 167 
contains important disincentives to the making of unauthorized use of a 
copyrighted work. It isolates a number of areas necessary to preserve 
the integrity of the works.
  It has become clear that pirates are most harmful when a creator 
delivers a new or highly anticipated product. Title I of S. 167 is 
designed to prevent the pirates from obtaining an initial copy of a 
motion picture through camcording or distributing by computer network a 
work being prepared for commercial distribution. Section 102 clarifies 
that it is a felony to surreptitiously record a movie in a theater. 
This section deals with the growing phenomenon of copyright thieves who 
use portable digital video recorders to record movies of theater 
screens during public exhibitions. Organized piracy rings then 
distribute copies of these surreptitious recordings both online and on 
the streets.
  This section also provides immunity for a movie theater owner who 
detains a person who is camcording the movie. It also allows those 
affected by the crime to file a victim impact statement to illustrate 
the loss accrued by the piracy. This, hopefully, will deter those who 
contribute to the ease with which pirated material is obtained.
  Even more detrimental to copyright owners than camcording a movie in 
the theaters is the effect of distributing an unauthorized copy of a 
movie or sound recording as it is prepared for commercial distribution. 
Distributing a film before final edits are made can undermine artistic 
integrity and can also harm the film's commercial prospects because the 
release is typically coordinated with a marketing effort. Sections 103 
and 104 provide for enhanced penalties for prerelease of a work being 
prepared for commercial distribution. Furthermore, it requires the 
Copyright Office to establish rules for preregistration of works. We 
need to address the problems generated when new works are leaked and 
pirated before they are made available for sale, the prerelease 
problem.
  For example, today, any basement can become a top-of-the-line 
recording studio, so the law and Copyright Office regulations must 
reflect the realities of the fast-paced creative entertainment 
businesses. Unauthorized prereleases are unfair to an artist because 
his or her song is circulating even before it is in its final form. 
Just as we edit letters and speeches, we must allow songwriters to 
tweak and refine their works. They deserve to have the tools to 
penalize those who thrive on the ability to leak a song or CD before it 
is available in stores or other legitimate avenues of commerce.
  This bill also addresses consumer concerns related to preserving 
content in orphan works, those works not available in the marketplace 
at a reasonable price. In section 402 of the bill, we have amended the 
Copyright Act to enable libraries and archives to reproduce, 
distribute, perform, and display all orphan works in the course of 
their preservation, scholarly and research activities.
  Furthermore, sections 302 and 312 ensure that the National Film 
Preservation Board and the National Film Preservation Foundation are 
reauthorized. These groups help maintain our history of film, which 
helps foster the creative process.
  Title III of S. 167 did generate some concern during the hearings 
held by the Committee on the Judiciary because it resolves a legal 
question at the heart of a pending Federal litigation. The Family Movie 
Act inappropriately intervenes in this pending legislation, shields one 
specific company from liability for altering the viewed performance.
  Directors should have the ability to control the content they create. 
Although I personally oppose this section, I, like many Members of the 
Committee on the Judiciary, believe that the bulk of the anti-piracy 
provisions contained in S. 167 are essential and therefore support the 
bill as a whole.
  The provisions included in S. 167 are derived from a more expansive 
bill passed by the House last year, H.R. 4077, which contained multiple 
sections designed to give additional resources statutory authority and 
incentives to law enforcement authorities to make them productive 
participants in the anti-piracy battle.
  There were also several provisions addressing the problem of 
copyright infringing files being illegally offered for distribution 
through peer-to-peer file-swapping networks. I urge the committee and 
my colleagues to include these provisions in future legislation.
  It is worth noting that, while not universally embraced, S. 167 has 
gained widespread consensus support. Groups as diverse as the Video 
Software Dealers Association, the American Association of Law 
Libraries, and the American Medical Association have written in 
support. On balance, S. 167 is an important advancement in the ongoing 
effort to battle copyright piracy, 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 6 minutes to the gentleman 
from Texas (Mr. Smith).
  Mr. SMITH of Texas. Mr. Speaker, first of all I want to thank the 
gentleman from Wisconsin (Mr. Sensenbrenner), the chairman of the 
Committee on the Judiciary, for yielding me this time.
  Mr. Speaker, this legislation contains four main components: first, 
the Family Movie Act, which I first introduced in the last Congress, 
will enable parents to skip over or mute the sex, violence, and 
profanity in movies they find objectionable for their children.
  Second, the Art Act will create new penalties for those who camcord 
movies in public theaters and who willfully infringe copyright law by 
distributing copies of prerelease works, movies or otherwise, online.
  Third, a reauthorization of the Film Preservation Board will protect 
older works that would otherwise deteriorate.
  Finally, a technical fix to the Sonny Bono Copyright Term Extension 
Act will ensure that libraries and archives have continued access to 
works during the last 20 years of a copyright term.
  As for the Family Movie Act, it lets parents decide for themselves 
what their children see and hear on television. These days, I do not 
think anyone would even consider buying a DVD player that does not come 
with a remote control; yet there are some who would deny parents the 
right to use the equivalent electronic device that would protect their 
children from sex, violence, and profanity in movies watched at home.
  Raising children may be the toughest job in the world. Parents need 
all the help they can get, and they should be able to determine what 
their children see on the screen. Yes, we parents might mute dialogue 
that others deem crucial, or we might fast forward over scenes that 
others consider essential, but that is irrelevant. Parents should be 
able to mute or skip over anything they want if they feel it is in the 
best interest of their children.
  Just as the author of a book should not be able to force someone to 
read that book in any particular manner or order, a studio or director 
should not be able to force our children to watch a movie in a 
particular way. No one can argue with a straight face it should be 
against the law to skip over a few pages or even entire chapters of a 
book. So, too, it should not be illegal to skip over a few words or 
scenes in a movie.

[[Page 6932]]

The Family Movie Act ensures that parents have such rights.
  In fact, the Registrar of Copyrights testified that such actions by 
parents are not in violation of existing copyright law. But needless 
litigation continues on this issue. It is time for the rights of 
parents not to be tied up in the courts any longer.
  Turning to other provisions within this bill, millions of pirated 
movies, music, software, games, and other copyrighted files are now 
available for a free download by certain peer-to-peer networks. Many of 
these files are the latest movies, music, software, and games that have 
yet to be released to the public in legal copies. Title I of the 
legislation focuses on these prereleased copies of works that are 
distributed on computer networks before they are available in legal 
copies to the public.
  Such activity is clearly wrong; yet existing law does not create a 
penalty targeted at this activity. Title I creates a minimum penalty of 
3 years in jail for those who undertake such activity. Combined with 
the camcording provisions in title I, this legislation will impose new 
and significant penalties on organized groups that camcord movies on 
the first day of their release and then distribute pirated DVDs the 
following day on streets worldwide.
  Title III of the legislation reauthorizes the Film Preservation Board 
at the Library of Congress. Title IV corrects a technical error in the 
Sonny Bono Copyright Term Extension Act that had the result of limiting 
library and archive access to older works.
  Mr. Speaker, this legislation represents a combination of important 
public policy objectives. I encourage my colleagues to support the 
measure and send it to the President's desk for his signature.
  Mr. BERMAN. Mr. Speaker, I am pleased to yield 5 minutes to my 
colleague, the gentlewoman from California (Ms. Watson), the founder 
and chair of the Congressional Entertainment Caucus, and a very 
diligent fighter for the protection of intellectual property and the 
vibrancy of an industry very important to our area and to the country.
  Ms. WATSON. Mr. Speaker, I rise in support of S. 167, the Family 
Entertainment and Copyright Act of 2005, which strengthens our Nation's 
intellectual property rights system and further protects and rewards 
our Nation's artists for their creative products.
  I supported this bill during the last Congress, and I look forward to 
seeing its eventual enactment in the coming weeks. This bill closes 
several significant gaps in our copyright laws that have contributed to 
the epidemic of digital piracy today. It outlaws camcording of movies 
off of theater screens by making it a Federal crime. It also empowers 
judges to impose up to 5-year prison terms for persons convicted of 
distributing copyrighted songs and movies on file-sharing networks for 
financial gain. I believe these provisions create crucial tools to 
combat the theft and redistribution of valuable intellectual property.
  With our movie industry losing about $3 billion to piracy every year, 
it is time that Congress demonstrates its support for our Nation's 
creators and artists by strengthening protection of copyrighted 
products. In addition, the bill strengthens our Nation's film heritage 
by reauthorizing the National Film Preservation Board and the National 
Film Preservation Foundation that have worked successfully to preserve 
historically or culturally significant films. Their fine work will 
ensure our collective artistic heritage will be preserved for 
generations to come.
  Finally, I want to point out that despite my overall support for the 
bill, I disagree with title II of the legislation, which shields 
companies that make movie-filtering systems from liability for 
copyrighting infringements. The intent of the movie-filtering 
technology is to sanitize movies to protect children. While I support a 
family-friendly entertainment, I believe this method is not only a 
violation of film makers' copyright protections but also an 
infringement of their artistic vision.
  Just yesterday, the Washington Post reported that companies 
sanitizing films removed 24 minutes from the part of the movie ``Saving 
Private Ryan'' depicting the landing at Omaha Beach on D-Day and 
eliminated racial epithets uttered by police officials against African 
American boxer Rubin Carter in ``The Hurricane.'' Both are central to 
the themes of the movies. Such editing may be done in the name of 
protecting children, but often reflect our political or ideological 
biases of the censors. I want to make it clear that my general support 
of the bill is no way an endorsement of film sanitization.
  Mr. Speaker, I urge my colleagues to support S. 167, and it is my 
hope that we will keep the dialogue open regarding the ever-changing 
landscape of technology, censorship, and creativity in our country.

                              {time}  1445

  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Utah (Mr. Cannon).
  Mr. CANNON. Mr. Speaker, I rise today in support of S. 167. I commend 
the gentleman from Texas (Mr. Smith) for introducing the House 
counterpart of this legislation, and I commend the gentleman from 
Wisconsin (Chairman Sensenbrenner) and the gentleman from California 
(Mr. Berman) for their continued diligence in bringing this legislation 
to the floor.
  Mr. Speaker, included in Title II of this legislation is the Family 
Movie Act of 2005. This title clarifies the Copyright Act so families, 
in the privacy of their homes, can use technology that allows them to 
skip or mute objectionable content in legally purchased or rented DVDs. 
Parents should have the right to watch any movie they want and to skip 
over or mute any content they find objectionable. This legislation will 
allow parents to have the final say in what their children watch in the 
privacy of their homes, and parents should have the option to protect 
their children from the sex, violence, profanity and other 
objectionable material found in movies that are produced in Hollywood 
these days.
  This legislation allows them to do so by clarifying the exemption in 
the copyright infringement law allowing people to skip, mute or avoid 
scenes on DVDs. This legislation does not allow for the modifying of 
the underlying content of the movie, it merely allows fast forwarding 
or muting portions of the movie or sound track.
  Thanks to this legislation, parents can control the content their 
children view without having to hold a finger on the remote control and 
anticipate scenes they might find objectionable.
  Mr. Speaker, technology that helps parents accomplish this goal 
should be applauded. S. 167 will allow for technology innovation to 
flourish without having to face continued legal challenges. This bill 
is an ideal solution that can be used by families in the home, and does 
not require limits to be placed on content the studios develop.
  I support this legislation. I urge the support of my colleagues.
  Mr. BERMAN. Mr. Speaker, I yield myself 2 minutes.
  Mr. Speaker, my better judgment notwithstanding, the arguments on 
this one aspect of the bill on which the majority and I disagree 
requires me to make just a couple of points.
  There is no one who thinks parents do not have and should not have 
the right to skip over, pass up or omit scenes of any video production 
they think are inappropriate for their children to see. No one debates 
that. No one debates they have the right to do that.
  What some of us do debate is the right of a commercial enterprise to 
peddle a technology which fundamentally alters the creator's work any 
more than some publisher has the right to take an unabridged version of 
a book that is under copyright, in order to excerpt and take out 
objectionable patches of that book, and then make a commercial profit 
without the permission of the copyright owner in peddling that book. 
That is the issue underlying our opposition to the Family Movie Act.
  Parents should have all of these rights, including the right to just 
say ``no'' to their kids watching a movie or

[[Page 6933]]

reading a book that is not appropriate. There is no dispute about that. 
This is a dispute about a particular type of technology that this bill 
seeks to immunize from liability for employing some young people to 
decide what someone else should see and not see. But I will not get 
myself too worked up about a bill that I plan to actively support.
  Mr. CONYERS. Mr. Speaker, I rise in support of this legislation with 
reservations about one part. At the outset, I strongly support efforts 
to make it more difficult to steal content and to encourage 
preservation of historic content.
  As I have said before, the content industries are a boon to our 
economy, providing this country's number one export. Their products, 
which include music, movies, books, and software, survive on the 
protection given by copyright law. Without protection from rampant 
copying and other infringement, creators would have no reason to keep 
creating and investing in new content.
  The success of copyrighted content, however is also its Achilles' 
Heel. People now camcord movies in theaters to sell online or in DVD 
format. They obtain pre-release copies of content and sell it online. 
Of course, this is illegal because it is done without the permission of 
the content owners and without payment to them. This bill clarifies 
that these two acts are illegal even if technology makes it easy and 
fast and cheap. While I believe we should do more to stop piracy, S. 
167 is a step in the right direction.
  Having said that, I would like to clarify one issue. The civil 
enforcement said of the pre-release provision imposes a statute of 
limitations on certain copyright lawsuits. Because it imposes the limit 
only for infringements that occur no more than two months after pre-
registered content is first distributed, it is clear that the bill does 
not impose any time limit on filing lawsuits for infringements that 
occur more than two months after distribution.
  The bill also contains two provisions that will encourage the 
preservation of historically-significant content. First, it 
reauthorizes the National Film Preservation Board and National Film 
Preservation Foundation, which review initiatives to ensure the 
preservation of valued films and issue grants to libraries and other 
institutions that can save films from degradation. The Directors Guild 
of America and the Academy of Motion Picture Arts and Sciences have 
applauded these efforts. The program expired in 2003, so S. 167 extends 
it until 2009.
  The second preservation piece, the ``Preservation of Orphan Works 
Act,'' will empower libraries and archives to make additional copies of 
musical works, movies, and other content.
  My one objection to S. 167, however, is with the ``Family Movie 
Act,'' which would allow private companies to sell movie editing 
software without permission from the filmmakers. This was proposed in 
response to a lawsuit between one company and filmmakers. From our 
consideration of this provision last year, we know this section inserts 
Congress into a private dispute and will take away the copyrights and 
artistic rights of filmmakers to the financial benefit of one private 
company. It is important to note that the bill does not immunize those 
who make fixed copies of edited content; such copies would still be 
illegal, as they are today, and the legislative history should reflect 
that.
  I urge my colleagues to vote ``yes'' on this legislation.
  Mr. BERMAN. 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 Senate bill, S. 167.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the Senate bill was passed.
  A motion to reconsider was laid on the table.

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