Senate Judiciary Committee Approves Large Collection of Copyright Bills
October 7, 2004. The Senate Judiciary Committee approved a package of copyright bills at a meeting late on Thursday, October 9, 2004. This composite bill is titled the "Intellectual Property Protection Act of 2004", or "IPPA". See, text of bill [44 pages in PDF], and text of bill, in HTML, with hyperlinked table of contents, and U.S.Code hyperlinks.
The Committee approved this package, without a hearing, without public debate, without public notice, and without a roll call vote. Although, this procedure is not unusual for controversial bills late in a Congress.
Nominally, the Committee approved a non-controversial bill to amend patent law to promote collaborative research. However, the Committee amended the bill by adding numerous provisions to amend copyright law that have both significant support, and opposition.
This bill, the "Intellectual Property Protection Act of 2004" or "IPPA", includes versions of the "EnFORCE Act", "PIRATE Act", "Home Movie Act", and "Piracy Deterrence and Education Act". As amended, the bill also includes several less controversial bills, including the "National Film Preservation Act of 2004", "National Film Preservation Foundation Reauthorization Act of 2004, and the "Preservation of Orphan Works Act". And, it includes the collaborate research bill, the "CREATE Act".
The IPPA does not include several intellectual property bills. For example, it does not include any version of S 2560, the "Inducing Infringement of Copyrights Act of 2004", or HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003". The House has not approved S 2560. The House approved HR 1561 on March 3, 2004 by a vote of 379-28. See, Roll Call No. 38. This bill contains increases in user fees that implement the U.S. Patent and Trademark Office's (USPTO) 21st Century Strategic Plan. It also provides for U.S. outsourcing of patent searches, and an end to the diversion of user fees to subsidize other government programs. See, story titled "House Passes USPTO Fee Bill", also published in TLJ Daily E-Mail Alert No. 849, March 4, 2004.
Brief Summary of the Bill.
Title I of the bill is the "Cooperative Research and Technology Enhancement (CREATE) Act of 2004", as previously approved by both the House and the Senate.
Title II is the "Piracy Deterrence and Education Act of 2004", which is a revised version of HR 4007 EH, which includes the "Family Movie Act".
Title III is the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004", or "PIRATE Act".
Title IV is the "National Film Preservation Act of 2004" and the "National Film Preservation Foundation Reauthorization Act of 2004".
Title V is the "Preservation of Orphan Works Act".
Title VI is the "Enhancing Federal Obscenity Reporting and Copyright Enforcement Act of 2004", also known as the "EnFORCE Act".
Summary of Title I: "CREATE Act". Title I of the IPPA is the "Cooperative Research and Technology Enhancement (CREATE) Act". It contains language already approved by the House as HR 2391, and the Senate as S 2192.
It amends Section 103(c) of the Patent Act, which is codified at 35 U.S.C. § 103, to address the August 8, 1997 opinion of the U.S. Court of Appeals for the Federal Circuit in OddzOn Products, Inc. v. Just Toys, Inc., which ruled that derived prior art may serve as evidence of obviousness. See, story titled "House Passes CREATE Act" in TLJ Daily E-Mail Alert No. 854, March 11, 2004.
Summary of Title II: "Home Movie Act" and "Piracy Deterrence and Education Act".
The House approved HR 4077, the "Piracy Deterrence and Education Act of 2004 ", by a voice vote, on September 28, 2004. See, story titled "House Approves Copyright Bill" in TLJ Daily E-Mail Alert No. 986, September 29, 2004.
This bill began as HR 2514, which was introduced on June 19, 2003. See, stories titled "Representatives Smith & Berman Introduce Internet Piracy Education Bill" in TLJ Daily E-Mail Alert No. 686, June 24, 2003, and "House CIIP Subcommittee Holds Hearing on Piracy Deterrence and Education Act" in TLJ Daily E-Mail Alert No. 701, July 18, 2003.
Rep. Lamar Smith (R-TX), Rep. Howard Berman (D-CA), and Rep. John Conyers (D-MI) then introduced a revised version, HR 4007, on March 31, 2004.
The House Judiciary Committee amended and approved HR 4077 on September 8, 2004. This mark up added the language of HR 4586, the "Family Movie Act of 2004", which is also known as the ClearPlay bill. See, story titled "House Judiciary Committee Approves Intellectual Property Bills" in TLJ Daily E-Mail Alert No. 973, September 9, 2004.
Title II of the IPPA is HR 4007 EH, as enacted by the House on September 28, 2004, with some changes.
§ 212 of the IPPA (§ 112 of HR 4007 EH) contains the "Family Movie Act". This provision, which is included with the ClearPlay technology in mind, adds a new ¶ 11 to 17 U.S.C. § 110 (which provides exceptions to the exclusive rights of copyright).
It provides that "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 for such use at the direction of a member of a private household, if (A) no fixed copy of the altered version of the motion picture is created by such computer program or other technology; and (B) no changes, deletions or additions are made by such computer program or other technology to commercial advertisements, or to network or station promotional announcements, that would otherwise be performed or displayed before, during or after the performance of the motion picture."
It adds that "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."
The House Subcommittee on Courts, the Internet and Intellectual Property held a hearing on this topic on May 20, 2004. See, story titled "House CIIP Subcommittee Holds Hearing on DVD Filtering Technology" in TLJ Daily E-Mail Alert No. 903, May 21, 2004.
§ 203 of the IPPA (§ 103 of HR 4007 EH) creates a voluntary program at the Department of Justice (DOJ) to provide notices to apparent infringers. It provides that the DOJ may establish a program, in which the DOJ "in cases where persons who are subscribers of Internet service providers appear to be engaging in copyright infringing conduct in the course of using that Internet service, would send to the Internet Service providers notices that warn such persons of the penalties for such copyright infringement. The Internet service providers may forward the notices to such persons."
§ 204 of the IPPA (§ 104 of HR 4007 EH) pertains to the DOJ's computer hacking and intellectual property units (CHIPs), which exist in only a few of the many U.S. Attorneys Offices. This section requires that any DOJ unit "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."
§ 205 of the IPPA (§ 105 of HR 4007 EH) creates a public education program at the DOJ, to "educate the general public concerning the value of copyrighted works and the effects of the theft of such works on those who create them".
§ 206 of the IPPA (§ 106 of HR 4007 EH) amends 17 U.S.C. § 411, which establishes registration of a copyright as a prerequisite for filing a claim for copyright infringement. Some pirates now obtain and distribute works before they are completed, or after completion but before the Copyright Office has issued a certificate of registration. Moreover, this early piracy can cause tremendous economic harm to the ultimate copyright holder. § 206 of the IPPA allows federal prosecutors to take action against these early pirates without having to wait for the completion of the registration process.
§ 207 of the IPPA (§ 107 of HR 4007 EH) authorizes the appropriation of $15 Million for "the investigation and prosecution of violations of title 17, United States Code" -- that is, the copyright laws.
§ 208 of the IPPA (§ 108 of HR 4007 EH) criminalizes using camcorders to copy movies in motion picture exhibition facilities, such as movie theatres. This is aimed at those who take camcorders into movie theatres and surreptitiously copy movies, thereby enabling pirates to obtain and market copies of movies as soon as they are shown in theatres.
This language was also contained in § 3 of S 1932, the "Artists' Rights and Theft Prevention Act of 2004", or ART Act, which was approved by the Senate on June 25, 2004. See also, stories titled "Senators Introduce Bill to Increase Protection of Pre-Released Movies and Other Unpublished Works" in TLJ Daily E-Mail Alert No. 786, November 25, 2003, and "Senate Judiciary Committee Approves Four Intellectual Property Bills" in TLJ Daily E-Mail Alert No. 888, April 30, 2004.
§ 209 of the IPPA (§ 109 of HR 4007 EH) recites Congressional findings regarding peer to peer systems. It creates no new law. It states, for example, that "Massive volumes of illegal activity, including the distribution of child pornography, viruses, and confidential personal information, and copyright infringement occur on publicly accessible peer-to-peer file sharing services every day."
§ 210 of the IPPA (which revises § 110 of HR 4007 EH) pertains to criminal copyright infringement. It amends 17 U.S.C. § 506 to expand the scope of criminal copyright infringement to include certain electronic distribution of copies, amends 18 U.S.C. § 2319 to increase criminal penalties for various crimes related to copyright infringement, and amends 17 U.S.C. § 408 to provide for preregistration of works that are being prepared for commercial distribution and that have not been published.
§ 211 of the IPPA (§ 111 of HR 4007 EH) revises federal sentencing guidelines for crimes related to copyright infringement.
The IPPA likely drops the section of HR 4077 EH that designates the oak tree as the national tree. No draft of the IPPA that TLJ has reviewed includes the oak tree section. However, Committee staff and others have represented to TLJ that the oak tree section is in IPPA.
As a result of the haste and secrecy in which the IPPA was negotiated, Committee staff remained uncertain as to its content on Friday, October 8. In addition to the oak tree issue, one staff assistant to Sen. Leahy asserted that the IPPA contains a section pertaining to the National Institute of Standards and Technology (NIST), and e-mailed TLJ draft NIST language. This assertion is inconsistent with all drafts and other information that TLJ has obtained regarding the contents of the IPPA. Also, the Senate Judiciary Committee does not have jurisdiction over the NIST.
Summary of Title III: "PIRATE Act". Title III of the IPPA is the "Protecting Intellectual Rights Against Theft and Expropriation Act of 2004", or "PIRATE Act".
This is based upon the stand alone bill, S 2237, also titled the "PIRATE Act".
The bill has two provisions. First, § 302 would authorize the Department of Justice (DOJ) to bring civil actions for copyright infringement for conduct that already constitutes criminal copyright infringement under 17 U.S.C. § 506. This would accomplish two things. It would make it easier to prevail, because, among other things, the civil action would have a lower burden of proof. It would also provide a less punitive action for youthful P2P music pirates.
Second, § 303 would establish a training program (and authorize funding of $2,000,000) to educate DOJ and U.S. Attorneys Office personnel in copyright enforcement matters.
Sen. Leahy and Sen. Hatch introduced this bill on March 25, 2004. See, story titled "Leahy and Hatch Introduce Bill to Give DOJ Authority to Bring Civil Actions for Copyright Infringement" in TLJ Daily E-Mail Alert No. 866, March 30, 2004. The Senate Judiciary Committee approved it on April 29, 2004. See, story titled "Senate Judiciary Committee Approves Four Intellectual Property Bills" in TLJ Daily E-Mail Alert No. 888, April 30, 2004. The full Senate approved it on June 25, 2004. See, story titled "Senate Passes PIRATE Act to Enable DOJ to Bring Civil Actions for Copyright Infringement" in TLJ Daily E-Mail Alert No. 927, June 28, 2004.
Summary of Title VI: "EnFORCE Act". Title VI is the "Enhancing Federal Obscenity Reporting and Copyright Enforcement Act of 2004", or "EnFORCE Act".
It is based upon the stand alone bill, S 1933, also titled the "EnFORCE Act". Title VI is a subset of S 1933 as introduced. It deletes a provision that would have amended 17 U.S.C. § 115 regarding mechanical license negotiations for physical product configurations. It also deletes a provision regarding DOJ staffing to investigate intellectual property crimes. However, similar language is included in the IPPA in Title II in § 204.
§ 602 amends 17 U.S.C. § 411, regarding the registration of copyrights with the Copyright Office. It adds a new subsection that provides that "A certificate of registration shall satisfy the requirements of this section and section 412 irrespective of any inaccurate information therein, unless -- (A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and (B) the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration."
§ 603 amends 17 U.S.C. § 504 regarding remedies for copyright infringement. Subsection 504(c)(1) pertains to actual damages and profits. It provides that "For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work." The IPPA amends subsection 504(c)(1) to provide the exception 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".
Sen. Orrin Hatch (R-UT),
Sen. Dianne Feinstein (D-CA) and
Sen. John Cornyn (R-TX) introduced S
1933 on November 21, 2003. See, story titled "Sen. Hatch Introduces Bill With
Numerous Amendments to Copyright Act" in
TLJ Daily E-Mail
Alert No. 791, December 3, 2003. The Committee amended and approved S 1933
on May 20, 2004.