[108th Congress Public Law 482]
[From the U.S. Government Printing Office]


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[DOCID: f:publ482.108]


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   INTELLECTUAL PROPERTY PROTECTION AND COURTS AMENDMENTS ACT OF 2004

[[Page 118 STAT. 3912]]

Public Law 108-482
108th Congress

                                 An Act


 
     To prevent and punish counterfeiting of copyrighted copies and 
  phonorecords, and for other purposes. <<NOTE: Dec. 23, 2004 -  [H.R. 
                                3632]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Intellectual Property 
Protection and Courts Amendments Act of 2004.>> assembled,

SECTION 1. <<NOTE: 15 USC 1051 note.>> SHORT TITLE.

    This Act may be cited as the ``Intellectual Property Protection and 
Courts Amendments Act of 2004''.

  TITLE <<NOTE: Anti-counterfeiting Amendments Act of 2004.>> I--ANTI-
COUNTERFEITING PROVISIONS

SEC. 101. SHORT <<NOTE: 18 USC 2311 note.>> TITLE.

    This title may be cited as the ``Anti-counterfeiting Amendments Act 
of 2004''.

SEC. 102. PROHIBITION AGAINST TRAFFICKING IN COUNTERFEIT COMPONENTS.

    (a) In General.--Section 2318 of title 18, United States Code, is 
amended--
            (1) by striking the section heading and inserting the 
        following:

``Sec. 2318. Trafficking in counterfeit labels, illicit labels, or 
                        counterfeit documentation or packaging'';

            (2) by striking subsection (a) and inserting the following:

    ``(a) Whoever, in any of the circumstances described in subsection 
(c), knowingly traffics in--
            ``(1) a counterfeit label or illicit label affixed to, 
        enclosing, or accompanying, or designed to be affixed to, 
        enclose, or accompany--
                    ``(A) a phonorecord;
                    ``(B) a copy of a computer program;
                    ``(C) a copy of a motion picture or other 
                audiovisual work;
                    ``(D) a copy of a literary work;
                    ``(E) a copy of a pictorial, graphic, or sculptural 
                work;
                    ``(F) a work of visual art; or
                    ``(G) documentation or packaging; or
            ``(2) counterfeit documentation or packaging,

shall be fined under this title or imprisoned for not more than 5 years, 
or both.'';
            (3) in subsection (b)--

[[Page 118 STAT. 3913]]

                    (A) in paragraph (2), by striking ``and'' after the 
                semicolon;
                    (B) in paragraph (3)--
                          (i) by striking ``and `audiovisual work' 
                      have'' and inserting the following: ```audiovisual 
                      work', `literary work', `pictorial, graphic, or 
                      sculptural work', `sound recording', `work of 
                      visual art', and `copyright owner' have''; and
                          (ii) by striking the period at the end and 
                      inserting a semicolon; and
                    (C) by adding at the end the following:
            ``(4) the term `illicit label' means a genuine certificate, 
        licensing document, registration card, or similar labeling 
        component--
                    ``(A) that is used by the copyright owner to verify 
                that a phonorecord, a copy of a computer program, a copy 
                of a motion picture or other audiovisual work, a copy of 
                a literary work, a copy of a pictorial, graphic, or 
                sculptural work, a work of visual art, or documentation 
                or packaging is not counterfeit or infringing of any 
                copyright; and
                    ``(B) that is, without the authorization of the 
                copyright owner--
                          ``(i) distributed or intended for distribution 
                      not in connection with the copy, phonorecord, or 
                      work of visual art to which such labeling 
                      component was intended to be affixed by the 
                      respective copyright owner; or
                          ``(ii) in connection with a genuine 
                      certificate or licensing document, knowingly 
                      falsified in order to designate a higher number of 
                      licensed users or copies than authorized by the 
                      copyright owner, unless that certificate or 
                      document is used by the copyright owner solely for 
                      the purpose of monitoring or tracking the 
                      copyright owner's distribution channel and not for 
                      the purpose of verifying that a copy or 
                      phonorecord is noninfringing;
            ``(5) the term `documentation or packaging' means 
        documentation or packaging, in physical form, for a phonorecord, 
        copy of a computer program, copy of a motion picture or other 
        audiovisual work, copy of a literary work, copy of a pictorial, 
        graphic, or sculptural work, or work of visual art; and
            ``(6) the term `counterfeit documentation or packaging' 
        means documentation or packaging that appears to be genuine, but 
        is not.'';
            (4) in subsection (c)--
                    (A) by striking paragraph (3) and inserting the 
                following:
            ``(3) the counterfeit label or illicit label is affixed to, 
        encloses, or accompanies, or is designed to be affixed to, 
        enclose, or accompany--
                    ``(A) a phonorecord of a copyrighted sound recording 
                or copyrighted musical work;
                    ``(B) a copy of a copyrighted computer program;
                    ``(C) a copy of a copyrighted motion picture or 
                other audiovisual work;
                    ``(D) a copy of a literary work;
                    ``(E) a copy of a pictorial, graphic, or sculptural 
                work;

[[Page 118 STAT. 3914]]

                    ``(F) a work of visual art; or
                    ``(G) copyrighted documentation or packaging; or''; 
                and
                    (B) in paragraph (4), by striking ``for a computer 
                program''; and
            (5) in subsection (d)--
                    (A) by inserting ``or illicit labels'' after 
                ``counterfeit labels'' each place it appears; and
                    (B) by inserting before the period at the end the 
                following: ``, and of any equipment, device, or material 
                used to manufacture, reproduce, or assemble the 
                counterfeit labels or illicit labels''.

    (b) Civil Remedies.--Section 2318 of title 18, United States Code, 
is further amended by adding at the end the following:
    ``(f) Civil Remedies.--
            ``(1) In general.--Any copyright owner who is injured, or is 
        threatened with injury, by a violation of subsection (a) may 
        bring a civil action in an appropriate United States district 
        court.
            ``(2) Discretion of court.--In any action brought under 
        paragraph (1), the court--
                    ``(A) may grant 1 or more temporary or permanent 
                injunctions on such terms as the court determines to be 
                reasonable to prevent or restrain a violation of 
                subsection (a);
                    ``(B) at any time while the action is pending, may 
                order the impounding, on such terms as the court 
                determines to be reasonable, of any article that is in 
                the custody or control of the alleged violator and that 
                the court has reasonable cause to believe was involved 
                in a violation of subsection (a); and
                    ``(C) may award to the injured party--
                          ``(i) reasonable attorney fees and costs; and
                          ``(ii)(I) actual damages and any additional 
                      profits of the violator, as provided in paragraph 
                      (3); or
                          ``(II) statutory damages, as provided in 
                      paragraph (4).
            ``(3) Actual damages and profits.--
                    ``(A) In general.--The injured party is entitled to 
                recover--
                          ``(i) the actual damages suffered by the 
                      injured party as a result of a violation of 
                      subsection (a), as provided in subparagraph (B) of 
                      this paragraph; and
                          ``(ii) any profits of the violator that are 
                      attributable to a violation of subsection (a) and 
                      are not taken into account in computing the actual 
                      damages.
                    ``(B) Calculation of damages.--The court shall 
                calculate actual damages by multiplying--
                          ``(i) the value of the phonorecords, copies, 
                      or works of visual art which are, or are intended 
                      to be, affixed with, enclosed in, or accompanied 
                      by any counterfeit labels, illicit labels, or 
                      counterfeit documentation or packaging, by
                          ``(ii) the number of phonorecords, copies, or 
                      works of visual art which are, or are intended to 
                      be, affixed with, enclosed in, or accompanied by 
                      any counterfeit labels, illicit labels, or 
                      counterfeit documentation or packaging.

[[Page 118 STAT. 3915]]

                    ``(C) Definition.--For purposes of this paragraph, 
                the `value' of a phonorecord, copy, or work of visual 
                art is--
                          ``(i) in the case of a copyrighted sound 
                      recording or copyrighted musical work, the retail 
                      value of an authorized phonorecord of that sound 
                      recording or musical work;
                          ``(ii) in the case of a copyrighted computer 
                      program, the retail value of an authorized copy of 
                      that computer program;
                          ``(iii) in the case of a copyrighted motion 
                      picture or other audiovisual work, the retail 
                      value of an authorized copy of that motion picture 
                      or audiovisual work;
                          ``(iv) in the case of a copyrighted literary 
                      work, the retail value of an authorized copy of 
                      that literary work;
                          ``(v) in the case of a pictorial, graphic, or 
                      sculptural work, the retail value of an authorized 
                      copy of that work; and
                          ``(vi) in the case of a work of visual art, 
                      the retail value of that work.
            ``(4) Statutory damages.--The injured party may elect, at 
        any time before final judgment is rendered, to recover, instead 
        of actual damages and profits, an award of statutory damages for 
        each violation of subsection (a) in a sum of not less than 
        $2,500 or more than $25,000, as the court considers appropriate.
            ``(5) Subsequent violation.--The court may increase an award 
        of damages under this subsection by 3 times the amount that 
        would otherwise be awarded, as the court considers appropriate, 
        if the court finds that a person has subsequently violated 
        subsection (a) within 3 years after a final judgment was entered 
        against that person for a violation of that subsection.
            ``(6) Limitation on actions.--A civil action may not be 
        commenced under section unless it is commenced within 3 years 
        after the date on which the claimant discovers the violation of 
        subsection (a).''.

    (c) Conforming Amendment.--The item relating to section 2318 in the 
table of sections for chapter 113 of title 18, United States Code, is 
amended to read as follows:

``2318. Trafficking in counterfeit labels, illicit labels, or 
           counterfeit documentation or packaging.''.

SEC. 103. OTHER <<NOTE: 18 USC 2318 note.>> RIGHTS NOT AFFECTED.

    (a) Chapters 5 and 12 of Title 17; Electronic Transmissions.--The 
amendments made by this title--
            (1) shall not enlarge, diminish, or otherwise affect any 
        liability or limitations on liability under sections 512, 1201 
        or 1202 of title 17, United States Code; and
            (2) shall not be construed to apply--
                    (A) in any case, to the electronic transmission of a 
                genuine certificate, licensing document, registration 
                card, similar labeling component, or documentation or 
                packaging described in paragraph (4) or (5) of section 
                2318(b) of title 18, United States Code, as amended by 
                this title; and

[[Page 118 STAT. 3916]]

                    (B) in the case of a civil action under section 
                2318(f) of title 18, United States Code, to the 
                electronic transmission of a counterfeit label or 
                counterfeit documentation or packaging defined in 
                paragraph (1) or (6) of section 2318(b) of title 18, 
                United States Code.

    (b) Fair Use.--The amendments made by this title shall not affect 
the fair use, under section 107 of title 17, United States Code, of a 
genuine certificate, licensing document, registration card, similar 
labeling component, or documentation or packaging described in paragraph 
(4) or (5) of section 2318(b) of title 18, United States Code, as 
amended by this title.

   TITLE II--FRAUDULENT <<NOTE: Fraudulent Online Identity Sanctions 
Act.>> ONLINE IDENTITY SANCTIONS

SEC. 201. SHORT <<NOTE: 15 USC 1051 note.>> TITLE.

    This title may be cited as the ``Fraudulent Online Identity 
Sanctions Act''.

SEC. 202. AMENDMENT TO TRADEMARK ACT OF 1946.

    Section 35 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. 1117), is amended by adding at the 
end the following new subsection:
    ``(e) In the case of a violation referred to in this section, it 
shall be a rebuttable presumption that the violation is willful for 
purposes of determining relief if the violator, or a person acting in 
concert with the violator, knowingly provided or knowingly caused to be 
provided materially false contact information to a domain name 
registrar, domain name registry, or other domain name registration 
authority in registering, maintaining, or renewing a domain name used in 
connection with the violation. Nothing in this subsection limits what 
may be considered a willful violation under this section.''.

SEC. 203. AMENDMENT TO TITLE 17, UNITED STATES CODE.

    Section 504(c) of title 17, United States Code, is amended by adding 
at the end the following new paragraph:
            ``(3) (A) In a case of infringement, it shall be a 
        rebuttable presumption that the infringement was committed 
        willfully for purposes of determining relief if the violator, or 
        a person acting in concert with the violator, knowingly provided 
        or knowingly caused to be provided materially false contact 
        information to a domain name registrar, domain name registry, or 
        other domain name registration authority in registering, 
        maintaining, or renewing a domain name used in connection with 
        the infringement.
            ``(B) Nothing in this paragraph limits what may be 
        considered willful infringement under this subsection.
            ``(C) For purposes of this paragraph, the term `domain name' 
        has the meaning given that term in section 45 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'

[[Page 118 STAT. 3917]]

        approved July 5, 1946 (commonly referred to as the `Trademark 
        Act of 1946'; 15 U.S.C. 1127).''.

SEC. 204. AMENDMENT TO TITLE 18, UNITED STATES CODE.

    (a) Sentencing Enhancement.--Section 3559 of title 18, United States 
Code, is amended by adding at the end the following:
    ``(f)(1) If a defendant who is convicted of a felony offense (other 
than offense of which an element is the false registration of a domain 
name) knowingly falsely registered a domain name and knowingly used that 
domain name in the course of that offense, the maximum imprisonment 
otherwise provided by law for that offense shall be doubled or increased 
by 7 years, whichever is less.
    ``(2) As used in this section--
            ``(A) the term `falsely registers' means registers in a 
        manner that prevents the effective identification of or contact 
        with the person who registers; and
            ``(B) the term `domain name' has the meaning given that term 
        is section 45 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. 1127).''.

    (b) United States Sentencing <<NOTE: 28 USC 994 
note.>> Commission.--
            (1) Directive.--Pursuant <<NOTE: Guidelines.>> to its 
        authority under section 994(p) of title 28, United States Code, 
        and in accordance with this section, the United States 
        Sentencing Commission shall review and amend the sentencing 
        guidelines and policy statements to ensure that the applicable 
        guideline range for a defendant convicted of any felony offense 
        carried out online that may be facilitated through the use of a 
        domain name registered with materially false contact information 
        is sufficiently stringent to deter commission of such acts.
            (2) Requirements.--In carrying out this subsection, the 
        Sentencing Commission shall provide sentencing enhancements for 
        anyone convicted of any felony offense furthered through 
        knowingly providing or knowingly causing to be provided 
        materially false contact information to a domain name registrar, 
        domain name registry, or other domain name registration 
        authority in registering, maintaining, or renewing a domain name 
        used in connection with the violation.
            (3) Definition.--For purposes of this subsection, the term 
        ``domain name'' has the meaning given that term in section 45 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. 1127).

SEC. 205. <<NOTE: 15 USC 1117 note.>> CONSTRUCTION.

    (a) Free Speech and Press.--Nothing in this title shall enlarge or 
diminish any rights of free speech or of the press for activities 
related to the registration or use of domain names.
    (b) Discretion of Courts in Determining Relief.--Nothing in this 
title shall restrict the discretion of a court in determining damages or 
other relief to be assessed against a person found liable for the 
infringement of intellectual property rights.

[[Page 118 STAT. 3918]]

    (c) Discretion of Courts in Determining Terms of Imprisonment.--
Nothing in this title shall be construed to limit the discretion of a 
court to determine the appropriate term of imprisonment for an offense 
under applicable law.

                            TITLE III--COURTS

SEC. 301. ADDITIONAL PLACE OF HOLDING COURT IN THE DISTRICT OF COLORADO.

    Section 85 of title 28, United States Code, is amended by inserting 
``Colorado Springs,'' after ``Boulder,''.

SEC. 302. PLACE OF HOLDING COURT IN THE NORTHERN DISTRICT OF NEW YORK.

    Section 112(a) of title 28, United States Code, is amended by 
inserting ``Plattsburgh,'' after ``Malone,''.

    Approved December 23, 2004.

LEGISLATIVE HISTORY--H.R. 3632 (S. 2227):
---------------------------------------------------------------------------

HOUSE REPORTS: No. 108-600 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 150 (2004):
            Sept. 21, considered and passed House.
            Dec. 8, considered and passed Senate.

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