Sen. Hatch   Sen. Leahy

HR 2391, "Intellectual Property Protection Act of 2004".
Approved by the Senate Judiciary Committee on October 7, 2004.
Amendment in the nature of a substitute offered by Sen. Orrin Hatch (R-UT) and Sen. Patrick Leahy (D-VT).

Editor's Notes:
  • TLJ received a PDF copy of the bill as approved by the Senate Judiciary Committee from the Committee.
  • TLJ converted this PDF document into HTML.
  • TLJ created and hyperlinked the Table of Contents.
  • TLJ omitted header information, and the deleted language of HR 2391 EH.
  • TLJ added hyperlinks for U.S. Code sections.
  • TLJ deleted double spacing, line numbering, and pagination.
  • TLJ changed fonts.

Table of Contents

TITLE I -- COOPERATIVE RESEARCH AND TECHNOLOGY ENHANCEMENT
SEC. 101. SHORT TITLE.
SEC. 102. COLLABORATIVE EFFORTS ON CLAIMED INVENTIONS.
SEC. 103. EFFECTIVE DATE.

TITLE II -- PIRACY DETERRENCE IN EDUCATION
SEC. 201. SHORT TITLE.
SEC. 202. FINDINGS.
SEC. 203. VOLUNTARY PROGRAM OF DEPARTMENT OF JUSTICE.
SEC. 204. DESIGNATION AND TRAINING OF AGENTS IN COMPUTER HACKING AND INTELLECTUAL PROPERTY UNITS.
SEC. 205. EDUCATION PROGRAM.
SEC. 206. ACTIONS BY THE GOVERNMENT OF THE UNITED STATES.
SEC. 207. AUTHORIZED APPROPRIATIONS.
SEC. 208. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING OF MOTION PICTURES IN A MOTION PICTURE EXHIBITION FACILITY.
SEC. 209. SENSE OF CONGRESS ON NEED TO TAKE STEPS TO PREVENT ILLEGAL ACTIVITY ON PEER-TO-PEER SERVICES.
SEC. 210. ENHANCEMENT OF CRIMINAL COPYRIGHT INFRINGEMENT.
SEC. 211. AMENDMENT OF FEDERAL SENTENCING GUIDELINES REGARDING THE INFRINGEMENT OF COPYRIGHTED WORKS AND RELATED CRIMES.
SEC. 212. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO CONTENT IN MOTION PICTURES.

TITLE III -- PROTECTING INTELLECTUAL RIGHTS AGAINST THEFT AND EXPROPRIATION
SEC. 301. SHORT TITLE.
SEC. 302. AUTHORIZATION OF CIVIL COPYRIGHT ENFORCEMENT BY ATTORNEY GENERAL.
SEC. 303. AUTHORIZATION OF FUNDING FOR TRAINING AND PILOT PROGRAM.

TITLE IV -- NATIONAL FILM PRESERVATION ACT OF 2004
Subtitle A -- Reauthorization of the National Film Preservation Board
SEC. 401. SHORT TITLE.
SEC. 402. REAUTHORIZATION AND AMENDMENT.
Subtitle B -- Reauthorization of the National Film Preservation Foundation
SEC. 411. SHORT TITLE.
SEC. 412. REAUTHORIZATION AND AMENDMENT.

TITLE V -- PRESERVATION OF ORPHAN WORKS
SEC. 501. SHORT TITLE.
SEC. 502. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND ARCHIVES.

TITLE VI -- ENHANCING FEDERAL OBSCENITY REPORTING AND COPYRIGHT ENFORCEMENT
SEC. 601. SHORT TITLE.
SEC. 602. HARMLESS ERRORS IN REGISTRATION CERTIFICATES.
SEC. 603. COMPUTATION OF STATUTORY DAMAGES.
SEC. 604. REPORT TO CONGRESS.



108TH CONGRESS
2D SESSION

H.R. 2391
 

[header information omitted]

[deleted HR 2391 language omitted]


TITLE I—COOPERATIVE RESEARCH AND TECHNOLOGY ENHANCEMENT
 

SEC. 101. SHORT TITLE.

This title may be cited as the ‘‘Cooperative Research and Technology Enhancement (CREATE) Act of 2004’’.

SEC. 102. COLLABORATIVE EFFORTS ON CLAIMED INVENTIONS.

Section 103(c) of title 35, United States Code, is amended to read as follows:

SEC. 103. EFFECTIVE DATE.

(a) IN GENERAL.—The amendments made by this title shall apply to any patent granted on or after the date of the enactment of this Act.

(b) SPECIAL RULE.—The amendments made by this title shall not affect any final decision of a court or the United States Patent and Trademark Office rendered before the date of the enactment of this Act, and shall not affect the right of any party in any action pending before the United States Patent and Trademark Office or a court on the date of the enactment of this Act to have that party’s rights determined on the basis of the provisions of title 35, United States Code, in effect on the day before the date of the enactment of this Act.
 

TITLE II -- PIRACY DETERRENCE IN EDUCATION
 

SEC. 201. SHORT TITLE.

This title may be cited as the ‘‘Piracy Deterrence and Education Act of 2004’’.

SEC. 202. FINDINGS.

Congress finds as follows:

(1) The Internet, while changing the way our society communicates, has also changed the nature of many crimes, including the theft of intellectual property.

(2) Trafficking in infringing copyrighted works through increasingly sophisticated electronic means, including peer-to-peer file trading networks, Internet chat rooms, and news groups, threatens lost jobs, lost income for creators, lower tax revenue, and higher prices for honest purchasers.

(3) The most popular peer-to-peer file trading software programs have been downloaded by computer users over 600,000,000 times. At any one time there are over 3,000,000 users simultaneously using just one of these services. Each month, on average, over 2,300,000,000 digital-media files are transferred among users of peer-to-peer systems.

(4) Many computer users simply believe that they will not be caught or prosecuted for their conduct.

(5) The security and privacy threats posed by certain peer-to-peer networks extend beyond users inadvertently enabling a hacker to access files. Millions of copies of one of the most popular peer-to-peer networks contain software that could allow an independent company to take over portions of users’ computers and Internet connections and has the capacity to keep track of users’ online habits.

(6) In light of these considerations, Federal law enforcement agencies should actively pursue criminals who steal the copyrighted works of others, and prevent such activity through enforcement and awareness. The public should be educated about the security and privacy risks associated with being connected to certain peer-to-peer networks.

SEC. 203. VOLUNTARY PROGRAM OF DEPARTMENT OF JUSTICE.

(a) VOLUNTARY PROGRAM.—The Attorney General is authorized to establish a program under which the Department of Justice, in cases where persons who are subscribers of Internet service providers appear to the Department of Justice to be engaging in copyright infringing conduct in the course of using such Internet service, would send to the Internet service providers warning letters that warn such persons of the penalties for such copyright infringement. The Internet service providers may forward the warning letters to such persons.

(b) LIMITATIONS ON PROGRAM.—

(c) REIMBURSEMENT OF INTERNET SERVICE PROVIDERS.—The Department of Justice shall reimburse Internet service providers for all reasonable direct costs incurred by such service providers in identifying the proper recipients of the warning letters under subsection (a) and forwarding the letters.

(d) REPORTS TO CONGRESS.—The Attorney General shall submit to Congress a report on the program established under subsection (a) both at the time the program is initiated and at the conclusion of the program.

(e) INADMISSIBILITY OF EVIDENCE.—The fact that an Internet service provider participated in the program under subsection (a), received a warning letter from the Department of Justice, was aware of the contents of the warning letter, or forwarded the warning letter to a subscriber, shall not be admissible in any legal proceeding brought against the Internet service provider.

(f) CONSTRUCTION.—Nothing in this section shall be construed to affect the ability of a court to consider, in a legal proceeding brought against an Internet service provider, notifications of claimed infringement as described in section 512(c)(3) of title 17, United States Code, or any other relevant evidence, other than that described in subsection (e).

SEC. 204. DESIGNATION AND TRAINING OF AGENTS IN COMPUTER HACKING AND INTELLECTUAL PROPERTY UNITS.

(a) DESIGNATION OF AGENTS IN CHIPS UNITS.—The Attorney General shall ensure that any unit in the Department of Justice responsible for investigating computer hacking or responsible for investigating intellectual property crimes is assigned at least one agent to support such unit for the purpose of investigating crimes relating to the theft of intellectual property.

(b) TRAINING.—The Attorney General shall ensure that each agent assigned under subsection (a) has received training in the investigation and enforcement of intellectual property crimes.

SEC. 205. EDUCATION PROGRAM.

(a) ESTABLISHMENT.—There shall be established within the Office of the Associate Attorney General of the United States an Internet Use Education Program.

(b) PURPOSE.—The purpose of the Internet Use Education Program shall be to—

(c) SECTOR SPECIFIC MATERIALS.—The Internet Use Educational Program shall, to the extent appropriate, develop materials appropriate to Internet users in different sectors of the general public where criminal copyright infringement is a concern. The Attorney General shall consult with appropriate interested parties in developing such sector-specific materials.

(d) CONSULTATIONS.—The Attorney General shall consult with the Register of Copyrights and the Secretary of Commerce in developing the Internet Use Education Program under this section.

(e) PROHIBITION ON USE OF CERTAIN FUNDS.—The program created under this section shall not use funds or resources of the Department of Justice allocated for criminal investigation or prosecution.

(f) ADDITIONAL PROHIBITION ON THE USE OF FUNDS.—The program created under this section shall not use any funds or resources of the Department of Justice allocated for the Civil Rights Division of the Department, including any funds allocated for the enforcement of civil rights or the Voting Rights Act of 1965.

SEC. 206. ACTIONS BY THE GOVERNMENT OF THE UNITED STATES.

Section 411(a) of title 17, United States Code, is amended in the first sentence by striking ‘‘Except for’’ and inserting ‘‘Except for an action brought by the Government of the United States or by any agency or instrumentality thereof, or’’.

SEC. 207. AUTHORIZED APPROPRIATIONS.

There are authorized to be appropriated to the Department of Justice for fiscal year 2005 not less than $15,000,000 for the investigation and prosecution of violations of title 17, United States Code.

SEC. 208. 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:

(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:

SEC. 209. SENSE OF CONGRESS ON NEED TO TAKE STEPS TO PREVENT ILLEGAL ACTIVITY ON PEER-TO-PEER SERVICES.

(a) FINDINGS.—Congress finds as follows:

(b) SENSE OF CONGRESS.—It is the sense of Congress that—

SEC. 210. ENHANCEMENT OF CRIMINAL COPYRIGHT INFRINGEMENT.

(a) CRIMINAL INFRINGEMENT.—Section 506 of title 17, United States Code, is amended—

(b) PENALTIES.—Section 2319 of title 18, United States Code, is amended—

(c) CIVIL REMEDIES FOR INFRINGEMENT OF A WORK BEING PREPARED FOR COMMERCIAL DISTRIBUTION.—

SEC. 211. AMENDMENT OF FEDERAL SENTENCING GUIDELINES REGARDING THE INFRINGEMENT OF COPYRIGHTED WORKS AND RELATED CRIMES.

(a) AMENDMENT TO THE SENTENCING GUIDELINES.—Pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall review and, if appropriate, amend the sentencing guidelines and policy statements applicable to persons convicted of intellectual property rights crimes, including sections 2318, 2319, 2319A, 2319B, 2320 of title 18, United States Code, and sections 506, 1201, and 1202 of title 17, United States Code.

(b) FACTORS.—In carrying out this section, the Sentencing Commission shall—

(c) PROMULGATION.—The Commission may promulgate the guidelines or amendments under this section in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that Act had not expired.

SEC. 212. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO CONTENT IN MOTION PICTURES.

(a) SHORT TITLE.—This section may be cited as the ‘‘Family Movie Act of 2004’’.

(b) EXEMPTION FROM COPYRIGHT AND TRADEMARK INFRINGEMENT FOR SKIPPING OF AUDIO OR VIDEO CONTENT OF MOTION PICTURES.—Section 110 of title 17, United States Code, is amended—

(c) EXEMPTION FROM TRADEMARK INFRINGEMENT.—Section 32 of the Trademark Act of 1946 (15 U.S.C. 1114) is amended by adding at the end the following:

(d) DEFINITION.—In this section, the term ‘‘Trademark Act of 1946’’ means the Act entitled ‘‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’’, approved July 5, 1946 (15 U.S.C. 1051 et seq.).
 

TITLE III—PROTECTING INTELLECTUAL RIGHTS AGAINST THEFT AND EXPROPRIATION
 

SEC. 301. SHORT TITLE.

This title may be cited as the ‘‘Protecting Intellectual Rights Against Theft and Expropriation Act of 2004’’.

SEC. 302. AUTHORIZATION OF CIVIL COPYRIGHT ENFORCEMENT BY ATTORNEY GENERAL.

(a) IN GENERAL.—Chapter 5 of title 17, United States Code, is amended by inserting after section 506 the following:

(b) DAMAGES AND PROFITS.—Section 504 of title 17, United States Code, is amended—

(c) TECHNICAL AND CONFORMING AMENDMENT.—

The table of sections for chapter 5 of title 17, United States Code, is amended by inserting after the item relating to section 506 the following:

SEC. 303. AUTHORIZATION OF FUNDING FOR TRAINING AND PILOT PROGRAM.

(a) TRAINING AND PILOT PROGRAM.—Not later than 180 days after enactment of this Act, the Attorney General shall develop a program to ensure effective implementation and use of the authority for civil enforcement of the copyright laws by—

(b) ANNUAL REPORT.—The report under subsection (a)(3) may be included in the annual performance report of the Department of Justice and shall include—

(c) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated $2,000,000 for fiscal year 2005 to carry out this section.
 

TITLE IV—NATIONAL FILM PRESERVATION ACT OF 2004
 

Subtitle A -- Reauthorization of the National Film Preservation Board

SEC. 401. SHORT TITLE.

This subtitle may be cited as the ‘‘National Film Preservation Act of 2004’’.

SEC. 402. 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—

(b) NATIONAL FILM PRESERVATION BOARD.—Section 104 of the National Film Preservation Act of 1996 (2 U.S.C. 179n) is amended—

(c) NATIONAL FILM REGISTRY.—Section 106 of the National Film Preservation Act of 1996 (2 U.S.C. 179q) is amended by adding at the end the following:

(d) USE OF SEAL.—Section 107 (a) of the National Film Preservation Act of 1996 (2 U.S.C. 179q) is amended—

(e) AUTHORIZATION OF APPROPRIATIONS.—Section 112 of the National Film Preservation Act of 1996 (2 U.S.C. 179v) is amended by striking ‘‘$250,000’’ and inserting ‘‘$200,000’’.

(f) EFFECTIVE DATE.—Section 113 of the National Film Preservation Act of 1996 (2 U.S.C. 179w) is amended by striking ‘‘7’’ and inserting ‘‘11’’.

Subtitle B -- Reauthorization of the National Film Preservation Foundation

SEC. 411. SHORT TITLE.

This subtitle may be cited as the ‘‘National Film Preservation Foundation Reauthorization Act of 2004’’.

SEC. 412. REAUTHORIZATION AND AMENDMENT.

(a) BOARD OF DIRECTORS.—Section 151703 of title 36, United States Code, is amended—

(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:

TITLE V—PRESERVATION OF ORPHAN WORKS
 

SEC. 501. SHORT TITLE.

This title may be cited as the ‘‘Preservation of Orphan Works Act’’.

SEC. 502. 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)’’.
 

TITLE VI—ENHANCING FEDERAL OBSCENITY REPORTING AND COPYRIGHT ENFORCEMENT
 

SEC. 601. SHORT TITLE.

This title may be cited as the ‘‘Enhancing Federal Obscenity Reporting and Copyright Enforcement Act of 2004’’.

SEC. 602. HARMLESS ERRORS IN REGISTRATION CERTIFICATES.

(a) IN GENERAL.—Section 411 of title 17, United States Code, is amended—

(b) TECHNICAL AND CONFORMING AMENDMENT.—

Section 412 of title 17, United States Code, is amended by striking ‘‘section 411(b)’’ and inserting ‘‘section 411(c)’’.

SEC. 603. COMPUTATION OF STATUTORY DAMAGES.

Section 504(c)(1) of title 17, United States Code, is amended in the second sentence by inserting before the period ‘‘, except that the court in its discretion may determine that such parts are separate works if the court concludes that they are distinct works having independent economic value’’.

SEC. 604. REPORT TO CONGRESS.

The Attorney General shall include in the report of the Attorney General to Congress on the business of the Department of Justice, prepared under section 522 of title 28, United States Code, the number of misdemeanor prosecutions and the number of felony prosecutions under sections 1462, 1464, 1465, 1466, 1466A, 1470, 2252, 2252A, 2252B, 2260, 2318, 2319, 2319A, and 2320 of title 18, United States Code, commenced and concluded during the last preceding fiscal year, including, in the case of those offenses where applicable, detailed information concerning—