I 

108TH CONGRESS 

1ST SESSION H. R. 3632

To prevent and punish counterfeiting of copyrighted copies and phonorecords, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 21, 2003

Mr. SMITH of Texas (for himself, Mr. KELLER, Mr. WEXLER, Mr. GOODLATTE, Mr. GALLEGLY, and Mr. CARTER) introduced the following bill; 

which was referred to the Committee on the Judiciary 

A BILL

To prevent and punish counterfeiting of copyrighted copies 

and phonorecords, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Anti-counterfeiting 

5 Amendments of 2003’’. 

6 SEC. 2. PROHIBITION AGAINST TRAFFICKING IN ANTI7 COUNTERFEITING COMPONENTS. 

8 (a) IN GENERAL.—Section 2318 of title 18, United 

9 States Code, is amended—
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1 (1) by striking the section heading and insert2 ing the following: 

3 ‘‘§ 2318. Trafficking in counterfeit labels or counter4 feit documentation or packaging’’; 

5 (2) by striking subsection (a) and inserting the 

6 following: 

7 ‘‘(a) Whoever, in any of the circumstances described 

8 in subsection (c), knowingly traffics in—

9 ‘‘(1) a counterfeit label affixed to, enclosing, or 

10 accompanying, or designed to be affixed to, enclose, 

11 or accompany—

12 ‘‘(A) a phonorecord; 

13 ‘‘(B) a copy of a computer program; 

14 ‘‘(C) a copy of a motion picture or other 

15 audiovisual work; or 

16 ‘‘(D) documentation or packaging; or 

17 ‘‘(2) counterfeit documentation or packaging, 

18 shall be fined under this title or imprisoned for not more 

19 than 5 years, or both.’’; 

20 (3) in subsection (b)—

21 (A) by striking paragraph (1) and insert22 ing the following: 

23 ‘‘(1) the term ‘counterfeit label’ means—

24 ‘‘(A) an identifying label or container that 

25 appears to be genuine, but is not; or 
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1 ‘‘(B) a genuine certificate, licensing docu2 ment, registration card, or similar labeling com3 ponent—

4 ‘‘(i) that is used by the copyright 

5 owner to verify that a phonorecord, a copy 

6 of a computer program, a copy of a motion 

7 picture or other audiovisual work, or docu8 mentation or packaging is not counterfeit 

9 or infringing of any copyright; and 

10 ‘‘(ii) that is, without the authorization 

11 of the copyright owner—

12 ‘‘(I) distributed or intended for 

13 distribution not in connection with the 

14 copy or phonorecord to which such la15 beling component was intended to be 

16 affixed by the respective copyright 

17 owner; or 

18 ‘‘(II) in the case of a computer 

19 program, altered or removed to falsify 

20 the number of authorized copies or 

21 users, type of authorized user, or edi22 tion or version of the computer pro23 gram;’’; 

24 (B) in paragraph (2), by striking ‘‘and’’ at 

25 the end; 
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1 (C) in paragraph (3)—

2 (i) by striking ‘‘and ‘audiovisual work’ 

3 have’’ and inserting the following: ‘‘, 

4 ‘audiovisual work’, ‘sound recording’, and 

5 ‘copyright owner’ have’’; and 

6 (ii) by striking the period at the end 

7 and inserting ‘‘; and’’ ; and 

8 (D) by adding at the end the following: 

9 ‘‘(4) the term ‘documentation or packaging’ 

10 means documentation or packaging for a phono11 record, copy of a computer program, or copy of a 

12 motion picture or other audiovisual work.’’; 

13 (4) in subsection (c)—

14 (A) by striking paragraph (3) and insert15 ing the following: 

16 ‘‘(3) the counterfeit label is affixed to, encloses, 

17 or accompanies, or is designed to be affixed to, en18 close, or accompany—

19 ‘‘(A) a phonorecord of a copyrighted sound 

20 recording; 

21 ‘‘(B) a copy of a copyrighted computer 

22 program; 

23 ‘‘(C) a copy of a copyrighted motion pic24 ture or other audiovisual work; or 
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1 ‘‘(D) copyrighted documentation or pack2 aging; or’’; and 

3 (B) in paragraph (4), by striking ‘‘for a 

4 computer program’’; 

5 (5) in subsection (d), by inserting before the pe6 riod at the end the following: ‘‘, and of any equip7 ment, device, or material used to manufacture, re8 produce, or assemble the counterfeit labels’’; and 

9 (6) by adding at the end the following: 

10 ‘‘(f) CIVIL REMEDIES FOR VIOLATION.—

11 ‘‘(1) IN GENERAL.—Any copyright owner who 

12 is injured, or is threatened with injury, by a viola13 tion of this section may bring a civil action in an ap14 propriate United States district court. 

15 ‘‘(2) DISCRETION OF COURT.—In any action 

16 brought under paragraph (1), the court—

17 ‘‘(A) may grant 1 or more temporary or 

18 permanent injunctions on such terms as the 

19 court determines to be reasonable to prevent or 

20 restrain violations of this section; 

21 ‘‘(B) at any time while the action is pend22 ing, may order the impounding, on such terms 

23 as the court determines to be reasonable, of any 

24 article that is in the custody or control of the 

25 alleged violator and that the court has reason-
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1 able cause to believe was involved in a violation 

2 of this section; and 

3 ‘‘(C) may award to the injured party—

4 ‘‘(i) reasonable attorney fees and 

5 costs; and 

6 ‘‘(ii)(I) actual damages and any addi7 tional profits of the violator, as provided in 

8 paragraph (3); or 

9 ‘‘(II) statutory damages, as provided 

10 in paragraph (4). 

11 ‘‘(3) ACTUAL DAMAGES AND PROFITS.—

12 ‘‘(A) IN GENERAL.—The injured party is 

13 entitled to recover—

14 ‘‘(i) the actual damages suffered by 

15 the injured party as a result of a violation 

16 of this section, as provided in subpara17 graph (B); and 

18 ‘‘(ii) any profits of the violator that 

19 are attributable to a violation of this sec20 tion and are not taken into account in 

21 computing the actual damages. 

22 ‘‘(B) CALCULATION OF DAMAGES.—The 

23 court shall calculate actual damages by multi24 plying—
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1 ‘‘(i) the value of the phonorecords or 

2 copies which are, or are intended to be, af3 fixed with, enclosed in, or accompanied by 

4 any counterfeit labels or counterfeit docu5 mentation or packaging, by 

6 ‘‘(ii) the number of phonorecords or 

7 copies which are, or are intended to be, af8 fixed with, enclosed in, or accompanied by 

9 any counterfeit labels or counterfeit docu10 mentation or packaging. 

11 ‘‘(C) DEFINITION.—For purposes of this 

12 paragraph, the term ‘value of the phonorecord 

13 or copy’ means—

14 ‘‘(i) in the case of a copyrighted 

15 sound recording, the retail value of an au16 thorized phonorecord of that sound record17 ing; 

18 ‘‘(ii) in the case of a copyrighted com19 puter program, the retail value of an au20 thorized copy of that computer program; 

21 and 

22 ‘‘(iii) in the case of a copyrighted mo23 tion picture or other audiovisual work, the 

24 retail value of an authorized copy of that 

25 motion picture or audiovisual work. 
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1 ‘‘(4) STATUTORY DAMAGES.—The injured party 

2 may elect, at any time before final judgment is ren3 dered, to recover, instead of actual damages and 

4 profits, an award of statutory damages for each vio5 lation of this section in a sum of not less than 

6 $2,500 or more than $25,000, as the court considers 

7 appropriate. 

8 ‘‘(5) SUBSEQUENT VIOLATION.—The court may 

9 increase an award of damages under this subsection 

10 by 3 times the amount that would otherwise be 

11 awarded, as the court considers appropriate, if the 

12 court finds that a person has subsequently violated 

13 this section within 3 years after a final judgment 

14 was entered against that person for a violation of 

15 this section. 

16 ‘‘(6) LIMITATION ON ACTIONS.—A civil action 

17 may not be commenced under this section unless it 

18 is commenced within 3 years after the date on which 

19 the claimant discovers the violation. 

20 ‘‘(g) OTHER RIGHTS NOT AFFECTED.—Nothing in 

21 this section shall enlarge, diminish, or otherwise affect li22 ability under section 1201 or 1202 of title 17.’’.

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