PUBLIC LAW 109–9—APR. 27, 2005

FAMILY ENTERTAINMENT AND COPYRIGHT

ACT OF 2005

119 STAT. 218 PUBLIC LAW 109–9—APR. 27, 2005

Public Law 109–9

109th Congress

An Act

To provide for the protection of intellectual property rights, and for other purposes.

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:

‘‘§ 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

17 USC 101 note.

Artists’ Rights

and Theft

Prevention Act

of 2005.

Family

Entertainment

and Copyright

Act of 2005.

17 USC 101 note.

Apr. 27, 2005

[S. 167]

PUBLIC LAW 109–9—APR. 27, 2005 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.’’.

119 STAT. 220 PUBLIC LAW 109–9—APR. 27, 2005

(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—

PUBLIC LAW 109–9—APR. 27, 2005 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) 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—

Deadlines.

119 STAT. 222 PUBLIC LAW 109–9—APR. 27, 2005

‘‘(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;

Deadline.

28 USC 994 note.

PUBLIC LAW 109–9—APR. 27, 2005 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 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

17 USC 101 note.

Family Movie Act

of 2005.

119 STAT. 224 PUBLIC LAW 109–9—APR. 27, 2005

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

2 USC 179l note.

National Film

Preservation Act

of 2005.

Applicability.

Effective date.

Notice.

PUBLIC LAW 109–9—APR. 27, 2005 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

119 STAT. 226 PUBLIC LAW 109–9—APR. 27, 2005

(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’’.

17 USC 101 note.

Preservation of

Orphan Works

Act.

36 USC 101 note.

National Film

Preservation

Foundation

Reauthorization

Act of 2005.

PUBLIC LAW 109–9—APR. 27, 2005 119 STAT. 227

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.

Æ

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.