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[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3632 Enrolled Bill (ENR)]

        H.R.3632

                       One Hundred Eighth Congress

                                 of the

                        United States of America

                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Tuesday,
           the twentieth day of January, two thousand and four

                                 An Act

 
     To prevent and punish counterfeiting of copyrighted copies and 
                  phonorecords, 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 ``Intellectual Property Protection and 
Courts Amendments Act of 2004''.

                TITLE I--ANTI-COUNTERFEITING PROVISIONS

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Anti-counterfeiting Amendments Act 
of 2004''.

SEC. 102. PROHIBITION AGAINST TRAFFICKING IN COUNTERFEIT COMPONENTS.

    (a) In General.--Section 2318 of title 18, United States Code, is 
amended--
        (1) by striking the section heading and inserting the 
    following:

``Sec. 2318. Trafficking in counterfeit labels, illicit labels, or 
            counterfeit documentation or packaging'';

        (2) by striking subsection (a) and inserting the following:
    ``(a) Whoever, in any of the circumstances described in subsection 
(c), knowingly traffics in--
        ``(1) a counterfeit label or illicit label affixed to, 
    enclosing, or accompanying, or designed to be affixed to, enclose, 
    or accompany--
            ``(A) a phonorecord;
            ``(B) a copy of a computer program;
            ``(C) a copy of a motion picture or other audiovisual work;
            ``(D) a copy of a literary work;
            ``(E) a copy of a pictorial, graphic, or sculptural work;
            ``(F) a work of visual art; or
            ``(G) documentation or packaging; or
        ``(2) counterfeit documentation or packaging,
shall be fined under this title or imprisoned for not more than 5 
years, or both.'';
        (3) in subsection (b)--
            (A) in paragraph (2), by striking ``and'' after the 
        semicolon;
            (B) in paragraph (3)--
                (i) by striking ``and `audiovisual work' have'' and 
            inserting the following: ```audiovisual work', `literary 
            work', `pictorial, graphic, or sculptural work', `sound 
            recording', `work of visual art', and `copyright owner' 
            have''; and
                (ii) by striking the period at the end and inserting a 
            semicolon; and
            (C) by adding at the end the following:
        ``(4) the term `illicit label' means a genuine certificate, 
    licensing document, registration card, or similar labeling 
    component--
            ``(A) that is used by the copyright owner to verify that a 
        phonorecord, a copy of a computer program, a copy of a motion 
        picture or other audiovisual work, a copy of a literary work, a 
        copy of a pictorial, graphic, or sculptural work, a work of 
        visual art, or documentation or packaging is not counterfeit or 
        infringing of any copyright; and
            ``(B) that is, without the authorization of the copyright 
        owner--
                ``(i) distributed or intended for distribution not in 
            connection with the copy, phonorecord, or work of visual 
            art to which such labeling component was intended to be 
            affixed by the respective copyright owner; or
                ``(ii) in connection with a genuine certificate or 
            licensing document, knowingly falsified in order to 
            designate a higher number of licensed users or copies than 
            authorized by the copyright owner, unless that certificate 
            or document is used by the copyright owner solely for the 
            purpose of monitoring or tracking the copyright owner's 
            distribution channel and not for the purpose of verifying 
            that a copy or phonorecord is noninfringing;
        ``(5) the term `documentation or packaging' means documentation 
    or packaging, in physical form, for a phonorecord, copy of a 
    computer program, copy of a motion picture or other audiovisual 
    work, copy of a literary work, copy of a pictorial, graphic, or 
    sculptural work, or work of visual art; and
        ``(6) the term `counterfeit documentation or packaging' means 
    documentation or packaging that appears to be genuine, but is 
    not.'';
        (4) in subsection (c)--
            (A) by striking paragraph (3) and inserting the following:
        ``(3) the counterfeit label or illicit label is affixed to, 
    encloses, or accompanies, or is designed to be affixed to, enclose, 
    or accompany--
            ``(A) a phonorecord of a copyrighted sound recording or 
        copyrighted musical work;
            ``(B) a copy of a copyrighted computer program;
            ``(C) a copy of a copyrighted motion picture or other 
        audiovisual work;
            ``(D) a copy of a literary work;
            ``(E) a copy of a pictorial, graphic, or sculptural work;
            ``(F) a work of visual art; or
            ``(G) copyrighted documentation or packaging; or''; and
            (B) in paragraph (4), by striking ``for a computer 
        program''; and
        (5) in subsection (d)--
            (A) by inserting ``or illicit labels'' after ``counterfeit 
        labels'' each place it appears; and
            (B) by inserting before the period at the end the 
        following: ``, and of any equipment, device, or material used 
        to manufacture, reproduce, or assemble the counterfeit labels 
        or illicit labels''.
    (b) Civil Remedies.--Section 2318 of title 18, United States Code, 
is further amended by adding at the end the following:
    ``(f) Civil Remedies.--
        ``(1) In general.--Any copyright owner who is injured, or is 
    threatened with injury, by a violation of subsection (a) may bring 
    a civil action in an appropriate United States district court.
        ``(2) Discretion of court.--In any action brought under 
    paragraph (1), the court--
            ``(A) may grant 1 or more temporary or permanent 
        injunctions on such terms as the court determines to be 
        reasonable to prevent or restrain a violation of subsection 
        (a);
            ``(B) at any time while the action is pending, may order 
        the impounding, on such terms as the court determines to be 
        reasonable, of any article that is in the custody or control of 
        the alleged violator and that the court has reasonable cause to 
        believe was involved in a violation of subsection (a); and
            ``(C) may award to the injured party--
                ``(i) reasonable attorney fees and costs; and
                ``(ii)(I) actual damages and any additional profits of 
            the violator, as provided in paragraph (3); or
                ``(II) statutory damages, as provided in paragraph (4).
        ``(3) Actual damages and profits.--
            ``(A) In general.--The injured party is entitled to 
        recover--
                ``(i) the actual damages suffered by the injured party 
            as a result of a violation of subsection (a), as provided 
            in subparagraph (B) of this paragraph; and
                ``(ii) any profits of the violator that are 
            attributable to a violation of subsection (a) and are not 
            taken into account in computing the actual damages.
            ``(B) Calculation of damages.--The court shall calculate 
        actual damages by multiplying--
                ``(i) the value of the phonorecords, copies, or works 
            of visual art which are, or are intended to be, affixed 
            with, enclosed in, or accompanied by any counterfeit 
            labels, illicit labels, or counterfeit documentation or 
            packaging, by
                ``(ii) the number of phonorecords, copies, or works of 
            visual art which are, or are intended to be, affixed with, 
            enclosed in, or accompanied by any counterfeit labels, 
            illicit labels, or counterfeit documentation or packaging.
            ``(C) Definition.--For purposes of this paragraph, the 
        `value' of a phonorecord, copy, or work of visual art is--
                ``(i) in the case of a copyrighted sound recording or 
            copyrighted musical work, the retail value of an authorized 
            phonorecord of that sound recording or musical work;
                ``(ii) in the case of a copyrighted computer program, 
            the retail value of an authorized copy of that computer 
            program;
                ``(iii) in the case of a copyrighted motion picture or 
            other audiovisual work, the retail value of an authorized 
            copy of that motion picture or audiovisual work;
                ``(iv) in the case of a copyrighted literary work, the 
            retail value of an authorized copy of that literary work;
                ``(v) in the case of a pictorial, graphic, or 
            sculptural work, the retail value of an authorized copy of 
            that work; and
                ``(vi) in the case of a work of visual art, the retail 
            value of that work.
        ``(4) Statutory damages.--The injured party may elect, at any 
    time before final judgment is rendered, to recover, instead of 
    actual damages and profits, an award of statutory damages for each 
    violation of subsection (a) in a sum of not less than $2,500 or 
    more than $25,000, as the court considers appropriate.
        ``(5) Subsequent violation.--The court may increase an award of 
    damages under this subsection by 3 times the amount that would 
    otherwise be awarded, as the court considers appropriate, if the 
    court finds that a person has subsequently violated subsection (a) 
    within 3 years after a final judgment was entered against that 
    person for a violation of that subsection.
        ``(6) Limitation on actions.--A civil action may not be 
    commenced under section unless it is commenced within 3 years after 
    the date on which the claimant discovers the violation of 
    subsection (a).''.
    (c) Conforming Amendment.--The item relating to section 2318 in the 
table of sections for chapter 113 of title 18, United States Code, is 
amended to read as follows:
``2318. Trafficking in counterfeit labels, illicit labels, or 
          counterfeit documentation or packaging.''.

SEC. 103. OTHER RIGHTS NOT AFFECTED.

    (a) Chapters 5 and 12 of Title 17; Electronic Transmissions.--The 
amendments made by this title--
        (1) shall not enlarge, diminish, or otherwise affect any 
    liability or limitations on liability under sections 512, 1201 or 
    1202 of title 17, United States Code; and
        (2) shall not be construed to apply--
            (A) in any case, to the electronic transmission of a 
        genuine certificate, licensing document, registration card, 
        similar labeling component, or documentation or packaging 
        described in paragraph (4) or (5) of section 2318(b) of title 
        18, United States Code, as amended by this title; and
            (B) in the case of a civil action under section 2318(f) of 
        title 18, United States Code, to the electronic transmission of 
        a counterfeit label or counterfeit documentation or packaging 
        defined in paragraph (1) or (6) of section 2318(b) of title 18, 
        United States Code.
    (b) Fair Use.--The amendments made by this title shall not affect 
the fair use, under section 107 of title 17, United States Code, of a 
genuine certificate, licensing document, registration card, similar 
labeling component, or documentation or packaging described in 
paragraph (4) or (5) of section 2318(b) of title 18, United States 
Code, as amended by this title.

             TITLE II--FRAUDULENT ONLINE IDENTITY SANCTIONS

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Fraudulent Online Identity 
Sanctions Act''.

SEC. 202. AMENDMENT TO TRADEMARK ACT OF 1946.

    Section 35 of 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 (commonly referred to as the 
``Trademark Act of 1946''; 15 U.S.C. 1117), is amended by adding at the 
end the following new subsection:
    ``(e) In the case of a violation referred to in this section, it 
shall be a rebuttable presumption that the violation is willful for 
purposes of determining relief if the violator, or a person acting in 
concert with the violator, knowingly provided or knowingly caused to be 
provided materially false contact information to a domain name 
registrar, domain name registry, or other domain name registration 
authority in registering, maintaining, or renewing a domain name used 
in connection with the violation. Nothing in this subsection limits 
what may be considered a willful violation under this section.''.

SEC. 203. AMENDMENT TO TITLE 17, UNITED STATES CODE.

    Section 504(c) of title 17, United States Code, is amended by 
adding at the end the following new paragraph:
        ``(3) (A) In a case of infringement, it shall be a rebuttable 
    presumption that the infringement was committed willfully for 
    purposes of determining relief if the violator, or a person acting 
    in concert with the violator, knowingly provided or knowingly 
    caused to be provided materially false contact information to a 
    domain name registrar, domain name registry, or other domain name 
    registration authority in registering, maintaining, or renewing a 
    domain name used in connection with the infringement.
        ``(B) Nothing in this paragraph limits what may be considered 
    willful infringement under this subsection.
        ``(C) For purposes of this paragraph, the term `domain name' 
    has the meaning given that term in section 45 of 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 (commonly referred to as the `Trademark Act of 1946'; 15 
    U.S.C. 1127).''.

SEC. 204. AMENDMENT TO TITLE 18, UNITED STATES CODE.

    (a) Sentencing Enhancement.--Section 3559 of title 18, United 
States Code, is amended by adding at the end the following:
    ``(f)(1) If a defendant who is convicted of a felony offense (other 
than offense of which an element is the false registration of a domain 
name) knowingly falsely registered a domain name and knowingly used 
that domain name in the course of that offense, the maximum 
imprisonment otherwise provided by law for that offense shall be 
doubled or increased by 7 years, whichever is less.
    ``(2) As used in this section--
        ``(A) the term `falsely registers' means registers in a manner 
    that prevents the effective identification of or contact with the 
    person who registers; and
        ``(B) the term `domain name' has the meaning given that term is 
    section 45 of 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 (commonly referred to as 
    the `Trademark Act of 1946') (15 U.S.C. 1127).''.
    (b) United States Sentencing Commission.--
        (1) Directive.--Pursuant to its authority under section 994(p) 
    of title 28, United States Code, and in accordance with this 
    section, the United States Sentencing Commission shall review and 
    amend the sentencing guidelines and policy statements to ensure 
    that the applicable guideline range for a defendant convicted of 
    any felony offense carried out online that may be facilitated 
    through the use of a domain name registered with materially false 
    contact information is sufficiently stringent to deter commission 
    of such acts.
        (2) Requirements.--In carrying out this subsection, the 
    Sentencing Commission shall provide sentencing enhancements for 
    anyone convicted of any felony offense furthered through knowingly 
    providing or knowingly causing to be provided materially false 
    contact information to a domain name registrar, domain name 
    registry, or other domain name registration authority in 
    registering, maintaining, or renewing a domain name used in 
    connection with the violation.
        (3) Definition.--For purposes of this subsection, the term 
    ``domain name'' has the meaning given that term in section 45 of 
    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 (commonly referred to as the 
    ``Trademark Act of 1946''; 15 U.S.C. 1127).

SEC. 205. CONSTRUCTION.

    (a) Free Speech and Press.--Nothing in this title shall enlarge or 
diminish any rights of free speech or of the press for activities 
related to the registration or use of domain names.
    (b) Discretion of Courts in Determining Relief.--Nothing in this 
title shall restrict the discretion of a court in determining damages 
or other relief to be assessed against a person found liable for the 
infringement of intellectual property rights.
    (c) Discretion of Courts in Determining Terms of Imprisonment.--
Nothing in this title shall be construed to limit the discretion of a 
court to determine the appropriate term of imprisonment for an offense 
under applicable law.

                           TITLE III--COURTS

SEC. 301. ADDITIONAL PLACE OF HOLDING COURT IN THE DISTRICT OF 
              COLORADO.

    Section 85 of title 28, United States Code, is amended by inserting 
``Colorado Springs,'' after ``Boulder,''.

SEC. 302. PLACE OF HOLDING COURT IN THE NORTHERN DISTRICT OF NEW YORK.

    Section 112(a) of title 28, United States Code, is amended by 
inserting ``Plattsburgh,'' after ``Malone,''.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.
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