II

105TH CONGRESS

1ST SESSION S. 1044

To amend the provisions of titles 17 and 18, United States Code, to provide

greater copyright protection by amending criminal copyright infringement

provisions, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 21, 1997

Mr. LEAHY (for himself and Mr. KYL) introduced the following bill; which was

read twice and referred to the Committee on the Judiciary

A BILL

To amend the provisions of titles 17 and 18, United States

Code, to provide greater copyright protection by amending criminal copyright infringement provisions, 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 ‘‘Criminal Copyright

5 Improvement Act of 1997’’.

6 SEC. 2. CRIMINAL INFRINGEMENT OF COPYRIGHTS.

7 (a) DEFINITION OF FINANCIAL GAIN.—Section 101

8 of title 17, United States Code, is amended by inserting
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1 after the undesignated paragraph relating to the term

2 ‘‘display’’, the following new paragraph:

3 ‘‘The term ‘financial gain’ includes receipt of

4 anything of value, including the receipt of other

5 copyrighted works.’’.

6 (b) CRIMINAL OFFENSES.—Section 506(a) of title

7 17, United States Code, is amended to read as follows:

8 ‘‘(a) CRIMINAL INFRINGEMENT.—Any person who in9 fringes a copyright willfully either—

10 ‘‘(1) for purposes of commercial advantage or

11 private financial gain; or

12 ‘‘(2) by the reproduction or distribution, includ13 ing by electronic means, during any 180-day period,

14 of 10 or more copies, of 1 or more copyrighted

15 works, and the total retail value of the copyrighted

16 work or the total retail value of the copies of such

17 work is $5,000 or more,

18 shall be punished as provided under section 2319 of title

19 18.’’.

20 (c) LIMITATION ON CRIMINAL PROCEEDINGS.—Sec21 tion 507(a) of title 17, United States Code, is amended

22 by striking ‘‘three’’ and inserting ‘‘five’’.

23 (d) CRIMINAL INFRINGEMENT OF A COPYRIGHT.—

24 Section 2319 of title 18, United States Code, is

25 amended—
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1 (1) in subsection (b)—

2 (A) in the matter preceding paragraph (1),

3 by striking ‘‘subsection (a) of this section’’ and

4 inserting ‘‘section 506(a)(1) of title 17’’;

5 (B) in paragraph (1)—

6 (i) by inserting ‘‘including by elec7 tronic means,’’ after ‘‘if the offense con8 sists of the reproduction or distribution,’’;

9 and

10 (ii) by striking ‘‘with a retail value of

11 more than $2,500’’ and inserting ‘‘which

12 have a total retail value of more than

13 $5,000’’; and

14 (C) in paragraph (3) by inserting before

15 the semicolon ‘‘under this subsection’’; and

16 (2) by redesignating subsection (c) as sub17 section (e) and inserting after subsection (b) the

18 following:

19 ‘‘(c) Any person who commits an offense under sec20 tion 506(a)(2) of title 17—

21 ‘‘(1) shall be imprisoned not more than 3 years,

22 or fined in the amount set forth in this title, or both,

23 if the offense consists of the reproduction or dis24 tribution, including by electronic means, during any

25 180-day period, of 10 or more copies of 1 or more
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1 copyrighted works, and the total retail value of the

2 copyrighted work or the total retail value of the cop3 ies of such work is $10,000 or more;

4 ‘‘(2) shall be imprisoned not more than 1 year

5 or fined in the amount set forth in this title, or both,

6 if the offense consists of the reproduction or dis7 tribution, including by electronic means during any

8 180-day period, of 10 or more copies of 1 or more

9 copyrighted works, and the total retail value of the

10 copyrighted works or the total retail value of the

11 copies of such works is $5,000 or more; and

12 ‘‘(3) shall be imprisoned not more than 6 years,

13 or fined in the amount set forth in this title, or both,

14 if the offense is a second or subsequent felony of15 fense under paragraph (1).

16 ‘‘(d)(1) During preparation of the presentence report

17 pursuant to rule 32(c) of the Federal Rules of Criminal

18 Procedure, victims of the offense shall be permitted to

19 submit, and the probation officer shall receive, a victim

20 impact statement that identifies the victim of the offense

21 and the extent and scope of the injury and loss suffered

22 by the victim, including the estimated economic impact of

23 the offense on that victim.

24 ‘‘(2) Persons permitted to submit victim impact

25 statements shall include—
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1 ‘‘(A) producers and sellers of legitimate works

2 affected by conduct involved in the offense;

3 ‘‘(B) holders of intellectual property rights in

4 such works; and

5 ‘‘(C) the legal representatives of such produc6 ers, sellers, and holders.’’.

7 (e) UNAUTHORIZED FIXATION AND TRAFFICKING OF

8 LIVE MUSICAL PERFORMANCES.—Section 2319A of title

9 18, United States Code, is amended—

10 (1) by redesignating subsections (d) and (e) as

11 subsections (e) and (f), respectively; and

12 (2) by inserting after subsection (c) the

13 following:

14 ‘‘(d) VICTIM IMPACT STATEMENT.—(1) During prep15 aration of the presentence report pursuant to rule 32(c)

16 of the Federal Rules of Criminal Procedure, victims of the

17 offense shall be permitted to submit, and the probation

18 officer shall receive, a victim impact statement that identi19 fies the victim of the offense and the extent and scope

20 of the injury and loss suffered by the victim, including

21 the estimated economic impact of the offense on that

22 victim.

23 ‘‘(2) Persons permitted to submit victim impact

24 statements shall include—
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1 ‘‘(A) producers and sellers of legitimate works

2 affected by conduct involved in the offense;

3 ‘‘(B) holders of intellectual property rights in

4 such works; and

5 ‘‘(C) the legal representatives of such produc6 ers, sellers, and holders.’’.

7 (f) TRAFFICKING IN COUNTERFEIT GOODS OR SERV8 ICES.—Section 2320 of title 18, United States Code, is

9 amended—

10 (1) by redesignating subsection (d) as sub11 section (f) and transferring such subsection to the

12 end of the section;

13 (2) by redesignating subsection (e) as sub14 section (d); and

15 (3) by inserting after subsection (d) (as redesig16 nated by paragraph (2) of this subsection) the

17 following:

18 ‘‘(e)(1) During preparation of the presentence report

19 pursuant to rule 32(c) of the Federal Rules of Criminal

20 Procedure, victims of the offense shall be permitted to

21 submit, and the probation officer shall receive, a victim

22 impact statement that identifies the victim of the offense

23 and the extent and scope of the injury and loss suffered

24 by the victim, including the estimated economic impact of

25 the offense on that victim.
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1 ‘‘(2) Persons permitted to submit victim impact

2 statements shall include—

3 ‘‘(A) producers and sellers of legitimate goods

4 or services affected by conduct involved in the

5 offense;

6 ‘‘(B) holders of intellectual property rights in

7 such goods or services; and

8 ‘‘(C) the legal representatives of such produc9 ers, sellers, and holders.’’.

10 (g) DIRECTIVE TO SENTENCING COMMISSION.—

11 (1) IN GENERAL.—Under the authority of the

12 Sentencing Reform Act of 1984 (Public Law 98–

13 473; 98 Stat. 1987) and section 21 of the Sentenc14 ing Act of 1987 (Public Law 100–182; 101 Stat.

15 1271; 18 U.S.C. 994 note) (including the authority

16 to amend the sentencing guidelines and policy state17 ments), the United States Sentencing Commission

18 shall ensure that the applicable guideline range for

19 a defendant convicted of a crime against intellectual

20 property (including offenses set forth at section

21 506(a) of title 17, United States Code, and sections

22 2319, 2319A and 2320 of title 18, United States

23 Code)—

24 (A) is sufficiently stringent to deter such a

25 crime;
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1 (B) adequately reflects the additional con2 siderations set forth in paragraph (2) of this

3 subsection; and

4 (C) takes into account more than minimal

5 planning and other aggravating factors.

6 (2) IMPLEMENTATION.—In implementing para7 graph (1), the Sentencing Commission shall ensure

8 that the guidelines provide for consideration of the

9 retail value of the legitimate items that are infringed

10 upon and the quantity of items so infringed.

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