[United States Statutes at Large, Volume 119, 109th Congress, 1st Session]
[From the U.S. Government Publishing Office, www.gpo.gov]

119 STAT. 218

Public Law 109-9
109th Congress

An Act


 
To provide for the protection of intellectual property rights, and for
other purposes. NOTE: Apr. 27, 2005 -  [S. 167]

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress NOTE: Family Entertainment and
Copyright Act of 2005. 17 USC 101 note. assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Family Entertainment and Copyright
Act of 2005''.

TITLE I--ARTISTS' NOTE: Artists' Rights and Theft Prevention Act of
2005. RIGHTS AND THEFT PREVENTION

SEC. 101. SHORT NOTE: 17 USC 101 note. 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

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119 STAT. 219

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.''.

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119 STAT. 220

(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--

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119 STAT. 221

(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) NOTE: Deadlines. Preregistration of Works Being Prepared
for Commercial Distribution.--
``(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--

[[Page 222]]
119 STAT. 222

``(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 NOTE: 28 USC 994 note. GUIDELINES.

(a) NOTE: Deadline. 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;

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119 STAT. 223

(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 NOTE: Family Movie Act of 2005. FROM
INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO CONTENT IN MOTION PICTURES

SEC. 201. SHORT NOTE: 17 USC 101 note. 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

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119 STAT. 224

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) NOTE: Notice. 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) NOTE: Applicability. Effective date. 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 NOTE: National Film Preservation Act of
2005. of the National Film Preservation Board

SEC. 301. SHORT NOTE: 2 USC 179l note. 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

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119 STAT. 225

(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;
``(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

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119 STAT. 226

(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 NOTE: National Film Preservation
Foundation Reauthorization Act of 2005. of the National Film
Preservation Foundation

SEC. 311. SHORT NOTE: 36 USC 101 note. 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 NOTE: Preservation of Orphan Works Act. OF
ORPHAN WORKS

SEC. 401. SHORT NOTE: 17 USC 101 note. TITLE.

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

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119 STAT. 227

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)''.

Approved April 27, 2005.

LEGISLATIVE HISTORY--S. 167:
---------------------------------------------------------------------------

HOUSE REPORTS: No. 109-33, Pt. 1 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 151 (2005):
Feb. 1, considered and passed Senate.
Apr. 19, considered and passed House.