II 

★(Star Print) 

Calendar No. 482

108TH CONGRESS 

2D SESSION S. 1932

To provide criminal penalties for unauthorized recording of motion pictures 

in a motion picture exhibition facility, to provide criminal and civil 

penalties for unauthorized distribution of commercial prerelease copyrighted works, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 22, 2003

Mr. CORNYN (for himself, Mrs. FEINSTEIN, Mr. HATCH, Mr. SMITH, Mr. ALEXANDER, Mr. GRAHAM of South Carolina, Mr. KENNEDY, Mr. DURBIN, 

Mr. DEWINE, Mr. BIDEN, and Mr. SCHUMER) introduced the following 

bill; which was read twice and referred to the Committee on the Judiciary 

APRIL 29, 2004

Reported by Mr. HATCH, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL

To provide criminal penalties for unauthorized recording of 

motion pictures in a motion picture exhibition facility, 

to provide criminal and civil penalties for unauthorized 

distribution of commercial prerelease copyrighted works, 

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,
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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Artists’ Rights and 

3 Theft Prevention Act of 2003’’ or the ‘‘ART Act’’. 

4 SEC. 2. CONGRESSIONAL FINDINGS. 

5 Congress finds the following: 

6 (1) Intellectual property, among other things, 

7 represents the ideas, imagination and creativity 

8 needed to innovate long before a product is brought 

9 to market. As such, it is fundamental to the contin10 ued economic, social, and cultural development of so11 ciety and deserves the protection of our laws. 

12 (2) Music, film, software, and all forms of intel13 lectual property represent one of the strongest and 

14 most significant sectors of the United States econ15 omy, as demonstrated by the fact that these indus16 tries—

17 (A) accounted for more than 5 percent of 

18 the United States Gross Domestic Product 

19 (GDP), or $535,100,000,000 in 2001; 

20 (B) employ almost 6 percent of all United 

21 States employment; and 

22 (C) led all major industry sectors in for23 eign sales and exports in 2001. 

24 (3) In an attempt to combat the growing use of 

25 the Internet and technology for the illegal reproduc26 tion and distribution of copyrighted materials, Con-
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1 gress unanimously passed and President Clinton 

2 signed the ‘‘No Electronic Theft’’ or ‘‘NET’’ Act in 

3 1997. The NET Act is designed to strengthen copy4 right and trademark laws and to permit the prosecu5 tion of individuals in cases involving large-scale ille6 gal reproduction or distribution of copyrighted works 

7 where the infringers act willfully. 

8 (4) Under the NET Act’s requirement of eco9 nomic harm, investigations by law enforcement of 

10 copyright infringements are particularly resource in11 tensive and pose significant challenges. In the inter12 est of broader deterrence and in order to facilitate 

13 the prosecution of particularly egregious copyright 

14 violations, it is important to recognize that a signifi15 cant level of economic harm can be reached by the 

16 distribution of so-called ‘‘prerelease’’ commercial 

17 works. 

18 (5) The use of camcorders and other audio19 visual recording devices in movie theaters to make il20 legal copies of films is posing a serious threat to the 

21 motion picture industry. According to a recent in22 dustry study, 92.4 percent of the first copies of mov23 ies available for download on the Internet originate 

24 from camcorders. 
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1 (6) Given the difficulty of enforcement, online 

2 theft of music, film, software, and all forms of intel3 lectual property continues to rise. The negative ef4 fects on this large segment of the United States 

5 economy are significant, as exemplified by almost a 

6 31 percent drop in sales for the music industry from 

7 mid-year 2000 to mid-year 2003, which even critics 

8 of the industry acknowledge to be heavily influenced 

9 by the rampant distribution of pirated music. 

10 (7) Federal legislation is necessary and war11 ranted to combat the most egregious forms of online 

12 theft of intellectual property and its significant, neg13 ative economic impact on the United States economy 

14 because—

15 (A) Article 1, section 8 of the Constitution 

16 confers upon Congress the power ‘‘[t]o promote 

17 the Progress of Science and useful Arts, by se18 curing for limited Times to Authors and Inven19 tors the exclusive Right to their respective 

20 Writings and Discoveries,’’ as well as the power 

21 ‘‘[t]o regulate Commerce with foreign nations, 

22 and among the several States.’’; 

23 (B) the importance of the music, film, soft24 ware and other intellectual property-based in25 dustries to the overall health of the United 
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1 States economy is well documented and signifi2 cant; and 

3 (C) theft and distribution of intellectual 

4 property across State and international lines oc5 curs on a regular basis. 

6 SEC. 3. CRIMINAL PENALTIES FOR UNAUTHORIZED RE7 CORDING OF MOTION PICTURES IN A MO8 TION PICTURE EXHIBITION FACILITY. 

9 (a) IN GENERAL.—Chapter 113 of title 18, United 

10 States Code, is amended by adding after section 2319A 

11 the following new section: 

12 ‘‘§ 2319B. Unauthorized recording of motion pictures 

13 in a motion picture exhibition facility 

14 ‘‘(a) OFFENSE.—Whoever, without the consent of the 

15 copyright owner, knowingly uses or attempts to use an 

16 audiovisual recording device in a motion picture exhibition 

17 facility to transmit or make a copy of a motion picture 

18 or other audiovisual work protected under title 17, United 

19 States Code, or any part thereof, in a motion picture exhi20 bition facility shall—

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

22 fined under this title, or both; or 

23 ‘‘(2) if the offense is a second or subsequent of24 fense, be imprisoned for no more than 6 years, fined 

25 under this title, or both. 
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1 ‘‘(b) FORFEITURE AND DESTRUCTION.—When a per2 son is convicted of a violation of subsection (a), the court 

3 in its judgment of conviction shall, in addition to any pen4 alty provided, order the forfeiture and destruction or other 

5 disposition of all unauthorized copies of motion pictures 

6 or other audiovisual works protected under title 17, 

7 United States Code, or parts thereof, and any audiovisual 

8 recording devices or other equipment used in connection 

9 with the offense. 

10 ‘‘(c) AUTHORIZED ACTIVITIES.—This section does 

11 not prevent any lawfully authorized investigative, protec12 tive, or intelligence activity by an officer, agent, or em13 ployee of the United States, a State, or a political subdivi14 sion of a State, or a person acting pursuant to a contract 

15 with the United States, a State, or a political subdivision 

16 of a State. 

17 ‘‘(d) VICTIM IMPACT STATEMENT.—

18 ‘‘(1) IN GENERAL.—During the preparation of 

19 the presentence report pursuant to rule 32(c) of the 

20 Federal Rules of Criminal Procedure, victims of an 

21 offense under this section shall be permitted to sub22 mit to the probation officer a victim impact state23 ment that identifies the victim of the offense and the 

24 extent and scope of the injury and loss suffered by 
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1 the victim, including the estimated economic impact 

2 of the offense on that victim. 

3 ‘‘(2) CONTENTS.—A victim impact statement 

4 submitted under this subsection shall include— 

5 ‘‘(A) producers and sellers of legitimate 

6 works affected by conduct involved in the of7 fense; 

8 ‘‘(B) holders of intellectual property rights 

9 in the works described in subparagraph (A); 

10 and 

11 ‘‘(C) the legal representatives of such pro12 ducers, sellers, and holders. 

13 ‘‘(e) DEFINITIONS.—As used in this section, the fol14 lowing definitions shall apply: 

15 ‘‘(1) AUDIOVISUAL WORK, COPY, AND MOTION

16 PICTURE.—The terms ‘audiovisual work’, ‘copy’, and 

17 ‘motion picture’ have, respectively, the meanings 

18 given those terms in section 101 of title 17, United 

19 States Code. 

20 ‘‘(2) AUDIOVISUAL RECORDING DEVICE.—The 

21 term ‘audiovisual recording device’ means a digital 

22 or analog photographic or video camera, or any 

23 other technology capable of enabling the recording or 

24 transmission of a copyrighted motion picture or 

25 other audiovisual work, or any part thereof, regard-
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1 less of whether audiovisual recording is the sole or 

2 primary purpose of the device. 

3 ‘‘(3) MOTION PICTURE EXHIBITION FACILITY.—

4 The term ‘motion picture exhibition facility’ means 

5 any theater, screening room, lobby, indoor or out6 door screening venue, ballroom, or other premises 

7 where copyrighted motion pictures or other audio8 visual works are publicly exhibited, regardless of 

9 whether an admission fee is charged.’’. 

10 (b) CHAPTER ANALYSIS.—The chapter analysis for 

11 chapter 113 of title 18, United States Code, is amended 

12 by inserting after the item relating to section 2319A the 

13 following:

‘‘2319B. Unauthorized recording of motion pictures in a motion picture exhibition facility.’’.

14 SEC. 4. CRIMINAL INFRINGEMENT OF A COMMERCIAL 

15 PRERELEASE COPYRIGHTED WORK. 

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

17 amended— 

18 (1) by redesignating subsection (e) as sub19 section (f); and 

20 (2) by adding after subsection (d) the following: 

21 ‘‘(e)(1) For purposes of subsections (b) and (c) of 

22 this section and of section 506(a) of title 17, United 

23 States Code, in the case of a computer program, a non24 dramatic musical work, a motion picture or other audio-
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1 visual work, or a sound recording protected under title 17, 

2 United States Code, that is being prepared for commercial 

3 distribution, it shall be conclusively presumed that a per4 son distributed at least 10 copies or phonorecords of the 

5 work, and that such copies or phonorecords have a total 

6 retail value of more than $2,500, if that person—

7 ‘‘(A) distributes such work by making it avail8 able on a computer network accessible to members 

9 of the public who are able to reproduce the work 

10 through such access without the express consent of 

11 the copyright owner; and 

12 ‘‘(B) knew or should have known that the work 

13 was intended for commercial distribution. 

14 ‘‘(2) For purposes of paragraph (1), a work protected 

15 under title 17, United States Code, is being prepared for 

16 commercial distribution—

17 ‘‘(A) when at the time of unauthorized distribu18 tion, the copyright owner had a reasonable expecta19 tion of substantial commercial distribution and the 

20 work had not yet been so distributed; or 

21 ‘‘(B) in the case of a motion picture, protected 

22 under title 17, United States Code, when at the time 

23 of unauthorized distribution, the work had been 

24 made available for viewing in motion picture exhi25 bition facilities, but had not been made available to 
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1 the general public in the United States in a format 

2 intended to permit viewing outside motion picture 

3 exhibition facilities as defined in section 2319B.’’. 

4 SEC. 5. CIVIL REMEDIES FOR INFRINGEMENT OF A COM5 MERCIAL PRERELEASE COPYRIGHTED WORK. 

6 Section 504(b) of title 17, United States Code, is 

7 amended—

8 (1) by striking the first instance of ‘‘The copy9 right’’ and inserting the following: 

10 ‘‘(1) IN GENERAL.—The copyright’’; and 

11 (2) by adding at the end the following: 

12 ‘‘(2) DAMAGE FOR PRERELEASE INFRINGE13 MENT.—

14 ‘‘(A) IN GENERAL.—In the case of a com15 puter program, a non-dramatic musical work, a 

16 motion picture or other audiovisual work, or a 

17 sound recording protected under title 17, 

18 United States Code, that is being prepared for 

19 commercial distribution, actual damages shall 

20 be presumed conclusively to be no less that 

21 $2,500 per infringement, if a person—

22 ‘‘(i) distributes such work by making 

23 it available on a computer network acces24 sible to members of the public who are able 

25 to reproduce the work through such access 
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1 without the express consent of the copy2 right owner; and 

3 ‘‘(ii) knew or should have known that 

4 the work was intended for commercial dis5 tribution. 

6 ‘‘(B) WORK PREPARED FOR DISTRIBU7 TION.—For purposes of subparagraph (A), a 

8 work protected under this title is being pre9 pared for commercial distribution—

10 ‘‘(i) when at the time of unauthorized 

11 distribution, the copyright owner had a 

12 reasonable expectation of substantial com13 mercial distribution and the work had not 

14 yet been so distributed; or 

15 ‘‘(ii) in the case of a motion picture, 

16 protected under this title, when at the time 

17 of unauthorized distribution, the work had 

18 been made available for viewing in motion 

19 picture exhibition facilities, but had not 

20 been made available to the general public 

21 in the United States in a format intended 

22 to permit viewing outside motion picture 

23 exhibition facilities as defined in section 

24 2319B of title 18.’’. 
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1 SEC. 6. SENTENCING GUIDELINES. 

2 (a) IN GENERAL.—Not later than 180 days after the 

3 date of enactment of this Act, the United States Sen4 tencing Commission shall—

5 (1) review the Federal sentencing guidelines 

6 with respect to offenses involving the illegal repro7 duction and distribution of copyrighted works in vio8 lation of Federal law, including violations of section 

9 2319 and section 2319B of title 18, United States 

10 Code; 

11 (2) amend the Federal sentencing guidelines, as 

12 necessary, to provide for increased penalties for of13 fenses involving the illegal reproduction and distribu14 tion of works protected under title 17, United States 

15 Code, in a manner that reflects the serious nature 

16 of, and need to deter, such offenses; 

17 (3) submit a report to Congress that details its 

18 findings and amendments; and 

19 (4) take such other action that the Commission 

20 considers necessary to carry out this Act. 

21 (b) CONSULTATION.—In carrying out this section, 

22 the United States Sentencing Commission shall seek input 

23 from the Department of Justice, copyright owners, and 

24 other interested parties. 
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1 SEC. 7. AUTHORIZATION. 

2 There is authorized to be appropriated to the Depart3 ment of Justice an additional $5,000,000 for each of fiscal 

4 years 2005, 2006, 2007, 2008, and 2009 to prosecute vio5 lations of section 2319 of title 18, United States Code.

6 Strike all after the enacting clause and insert the fol7 lowing: 

8 SECTION 1. SHORT TITLE. 

9 This Act may be cited as the ‘‘Artists’ Rights and Theft 

10 Prevention Act of 2004’’ or the ‘‘ART Act’’. 

11 SEC. 2. CONGRESSIONAL FINDINGS. 

12 Congress finds the following: 

13 (1) Intellectual property— 

14 (A) represents the ideas, imagination and 

15 creativity needed to innovate long before a prod16 uct is brought to market; 

17 (B) is fundamental to the continued eco18 nomic, social, and cultural development of soci19 ety; and 

20 (C) deserves the protection of our laws. 

21 (2) Music, film, software, and all other forms of 

22 intellectual property represent one of the strongest 

23 and most significant sectors of the United States 

24 economy, as demonstrated by the fact that these in25 dustries— 
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1 (A) accounted for more than 5 percent of 

2 the United States Gross Domestic Product, or 

3 $535,100,000,000 in 2001; 

4 (B) represent almost 6 percent of all United 

5 States employment; and 

6 (C) led all major industry sectors in foreign 

7 sales and exports in 2001. 

8 (3) In an attempt to combat the growing use of 

9 the Internet and technology for the illegal reproduc10 tion and distribution of copyrighted materials, Con11 gress unanimously passed and President Clinton 

12 signed the ‘‘No Electronic Theft (NET) Act’’ in 1997. 

13 The NET Act is designed to strengthen copyright and 

14 trademark laws and to permit the prosecution of in15 dividuals in cases involving large-scale illegal repro16 duction or distribution of copyrighted works where the 

17 infringers act willfully. 

18 (4) Under the No Electronic Theft (NET) Act’s 

19 economic harm requirement, investigations by law en20 forcement of copyright infringements are particularly 

21 resource intensive and pose significant challenges. In 

22 the interest of broader deterrence and in order to fa23 cilitate the prosecution of particularly egregious copy24 right violations, it is important to recognize that a 
15

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1 significant level of economic harm can be reached by 

2 the distribution of prerelease commercial works. 

3 (5) The use of camcorders and other audiovisual 

4 recording devices in movie theaters to make illegal 

5 copies of films is posing a serious threat to the motion 

6 picture industry. According to a recent industry 

7 study, 92.4 percent of the first copies of movies avail8 able for download on the Internet originate from 

9 camcorders. 

10 (6) Given the difficulty of enforcement, online 

11 theft of music, film, software, and all forms of intel12 lectual property continues to rise. The negative effects 

13 on this large segment of the United States economy 

14 are significant, as exemplified by almost a 31 percent 

15 drop in sales for the music industry from the middle 

16 of 2000 to the middle of 2003. 

17 (7) Federal legislation is necessary and war18 ranted to combat the most egregious forms of online 

19 theft of intellectual property and its significant, nega20 tive economic impact on the United States economy 

21 because— 

22 (A) Article 1, section 8 of the United States 

23 Constitution gives Congress the power ‘‘[t]o pro24 mote the Progress of Science and useful Arts, by 

25 securing for limited Times to Authors and In-
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1 ventors the exclusive Right to their respective 

2 Writings and Discoveries,’’ as well as the power 

3 ‘‘[t]o regulate Commerce with foreign nations, 

4 and among the several States.’’; 

5 (B) the importance of the music, film, soft6 ware and other intellectual property-based indus7 tries to the overall health of the United States 

8 economy is well documented and significant; and 

9 (C) theft and unauthorized distribution of 

10 intellectual property across State and inter11 national lines occurs on a regular basis. 

12 SEC. 3. CRIMINAL PENALTIES FOR UNAUTHORIZED RE13 CORDING OF MOTION PICTURES IN A MOTION 

14 PICTURE EXHIBITION FACILITY. 

15 (a) IN GENERAL.—Chapter 113 of title 18, United 

16 States Code, is amended by adding after section 2319A the 

17 following new section: 

18 ‘‘§ 2319B. Unauthorized recording of motion pictures 

19 in a motion picture exhibition facility 

20 ‘‘(a) OFFENSE.—Any person who, without the author21 ization of the copyright owner, knowingly uses or attempts 

22 to use an audiovisual recording device to transmit or make 

23 a copy of a motion picture or other audiovisual work pro24 tected under title 17, or any part thereof, from a perform-
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1 ance of such work in a motion picture exhibition facility, 

2 shall— 

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

4 fined under this title, or both; or 

5 ‘‘(2) if the offense is a second or subsequent of6 fense, be imprisoned for no more than 6 years, fined 

7 under this title, or both. 

8 ‘‘(b) FORFEITURE AND DESTRUCTION.—When a per9 son is convicted of a violation of subsection (a), the court 

10 in its judgment of conviction shall, in addition to any pen11 alty provided, order the forfeiture and destruction or other 

12 disposition of all unauthorized copies of motion pictures or 

13 other audiovisual works protected under title 17, or parts 

14 thereof, and any audiovisual recording devices or other 

15 equipment used in connection with the offense. 

16 ‘‘(c) AUTHORIZED ACTIVITIES.—This section does not 

17 prevent any lawfully authorized investigative, protective, or 

18 intelligence activity by an officer, agent, or employee of the 

19 United States, a State, or a political subdivision of a State, 

20 or a person acting under a contract with the United States, 

21 a State, or a political subdivision of a State. 

22 ‘‘(d) IMMUNITY FOR THEATERS.—With reasonable 

23 cause, the owner or lessee of a facility where a motion pic24 ture is being exhibited, the authorized agent or employee 
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1 of such owner or lessee, the licensor of the motion picture 

2 being exhibited, or the agent or employee of such licensor— 

3 ‘‘(1) may detain, in a reasonable manner and 

4 for a reasonable time, any person suspected of a viola5 tion of this section for the purpose of questioning or 

6 summoning a law enforcement officer; and 

7 ‘‘(2) shall not be held liable in any civil or 

8 criminal action arising out of a detention under 

9 paragraph (1). 

10 ‘‘(e) VICTIM IMPACT STATEMENT.— 

11 ‘‘(1) IN GENERAL.—During the preparation of 

12 the presentence report under rule 32(c) of the Federal 

13 Rules of Criminal Procedure, victims of an offense 

14 under this section shall be permitted to submit to the 

15 probation officer a victim impact statement that iden16 tifies the victim of the offense and the extent and 

17 scope of the injury and loss suffered by the victim, in18 cluding the estimated economic impact of the offense 

19 on that victim. 

20 ‘‘(2) CONTENTS.—A victim impact statement 

21 submitted under this subsection shall include— 

22 ‘‘(A) producers and sellers of legitimate 

23 works affected by conduct involved in the offense; 

24 ‘‘(B) holders of intellectual property rights 

25 in the works described in subparagraph (A); and 
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1 ‘‘(C) the legal representatives of such pro2 ducers, sellers, and holders. 

3 ‘‘(f) DEFINITIONS.—In this section, the following defi4 nitions shall apply: 

5 ‘‘(1) TITLE 17 DEFINITIONS.—The terms ‘audio6 visual work’, ‘copy’, ‘copyright owner’, ‘motion pic7 ture’, ‘motion picture exhibition facility’, and ‘trans8 mit’ have, respectively, the meanings given those 

9 terms in section 101 of title 17. 

10 ‘‘(2) AUDIOVISUAL RECORDING DEVICE.—The 

11 term ‘audiovisual recording device’ means a digital or 

12 analog photographic or video camera, or any other 

13 technology or device capable of enabling the recording 

14 or transmission of a copyrighted motion picture or 

15 other audiovisual work, or any part thereof, regard16 less of whether audiovisual recording is the sole or 

17 primary purpose of the device.’’. 

18 (b) CLERICAL AMENDMENT.—The table of sections at 

19 the beginning of chapter 113 of title 18, United States Code, 

20 is amended by inserting after the item relating to section 

21 2319A the following:

‘‘2319B. Unauthorized recording of motion pictures in a motion picture exhibition facility.’’.

22 (c) DEFINITION.—Section 101 of title 17, United 

23 States Code, is amended by inserting after the definition 

24 of ‘‘Motion pictures’’ the following: 
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1 ‘‘The term ‘motion picture exhibition facility’ means 

2 a movie theater, screening room, or other venue that is being 

3 used primarily for the exhibition of a copyrighted motion 

4 picture, if such exhibition is open to the public or is made 

5 to an assembled group of viewers outside of a normal circle 

6 of a family and its social acquaintances.’’. 

7 SEC. 4. CRIMINAL INFRINGEMENT OF A WORK BEING PRE8 PARED FOR COMMERCIAL DISTRIBUTION. 

9 (a) PROHIBITED ACTS.—Section 506(a) of title 17, 

10 United States Code, is amended to read as follows: 

11 ‘‘(a) CRIMINAL INFRINGEMENT.— 

12 ‘‘(1) IN GENERAL.—Any person who willfully in13 fringes a copyright shall be punished as provided 

14 under section 2319 of title 18, if the infringement was 

15 committed— 

16 ‘‘(A) for purposes of commercial advantage 

17 or private financial gain; 

18 ‘‘(B) by the reproduction or distribution, 

19 including by electronic means, during any 180–

20 day period, of 1 or more copies or phonorecords 

21 of 1 or more copyrighted works, which have a 

22 total retail value of more than $1,000; or 

23 ‘‘(C) by the distribution of a work being 

24 prepared for commercial distribution, by making 

25 it available on a computer network accessible to 
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1 members of the public, if such person knew or 

2 should have known that the work was intended 

3 for commercial distribution. 

4 ‘‘(2) EVIDENCE.—For purposes of this sub5 section, evidence of reproduction or distribution of a 

6 copyrighted work, by itself, shall not be sufficient to 

7 establish willful infringement of a copyright. 

8 ‘‘(3) DEFINITION.—In this subsection, the term 

9 ‘work being prepared for commercial distribution’ 

10 means— 

11 ‘‘(A) a computer program, a musical work, 

12 a motion picture or other audiovisual work, or 

13 a sound recording, if at the time of unauthorized 

14 distribution— 

15 ‘‘(i) the copyright owner has a reason16 able expectation of commercial distribution; 

17 and 

18 ‘‘(ii) the copies or phonorecords of the 

19 work have not been commercially distrib20 uted; or 

21 ‘‘(B) a motion picture, if at the time of un22 authorized distribution, the motion picture— 

23 ‘‘(i) has been made available for view24 ing in a motion picture exhibition facility; 

25 and 
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1 ‘‘(ii) has not been made available in 

2 copies for sale to the general public in the 

3 United States in a format intended to per4 mit viewing outside a motion picture exhi5 bition facility.’’. 

6 (b) CRIMINAL PENALTIES.—Section 2319 of title 18, 

7 United States Code, is amended— 

8 (1) in subsection (a)— 

9 (A) by striking ‘‘Whoever’’ and inserting 

10 ‘‘Any person who’’; and 

11 (B) by striking ‘‘and (c) of this section’’ 

12 and inserting ‘‘, (c), and (d)’’; 

13 (2) in subsection (b), by striking ‘‘section 

14 506(a)(1)’’ and inserting ‘‘section 506(a)(1)(A)’’; 

15 (3) in subsection (c), by striking ‘‘section 

16 506(a)(2) of title 17, United States Code’’ and insert17 ing ‘‘section 506(a)(1)(B) of title 17’’; 

18 (4) by redesignating subsections (d) and (e) as 

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

20 (5) by adding after subsection (c) the following: 

21 ‘‘(d) Any person who commits an offense under section 

22 506(a)(1)(C) of title 17— 

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

24 fined under this title, or both; 
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1 ‘‘(2) shall be imprisoned not more than 5 years, 

2 fined under this title, or both, if the offense was com3 mitted for purposes of commercial advantage or pri4 vate financial gain; 

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

6 fined under this title, or both, if the offense is a sec7 ond or subsequent offense; and 

8 ‘‘(4) shall be imprisoned not more than 10 years, 

9 fined under this title, or both, if the offense is a sec10 ond or subsequent offense under paragraph (2).’’; and 

11 (6) in subsection (f), as redesignated— 

12 (A) in paragraph (1), by striking ‘‘and’’ at 

13 the end; 

14 (B) in paragraph (2), by striking the period 

15 at the end and inserting a semicolon; and 

16 (C) by adding at the end the following: 

17 ‘‘(3) the term ‘financial gain’ has the meaning 

18 given the term in section 101 of title 17; and 

19 ‘‘(4) the term ‘work being prepared for commer20 cial distribution’ has the meaning given the term in 

21 section 506(a) of title 17.’’. 
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1 SEC. 5. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK 

2 BEING PREPARED FOR COMMERCIAL DIS3 TRIBUTION. 

4 (a) PREREGISTRATION.—Section 408 of title 17, 

5 United States Code, is amended by adding at the end the 

6 following: 

7 ‘‘(f) PREREGISTRATION OF WORKS BEING PREPARED

8 FOR COMMERCIAL DISTRIBUTION.— 

9 ‘‘(1) RULEMAKING.—Not later than 180 days 

10 after the date of enactment of this Act, the Register 

11 of Copyrights shall issue regulations to establish pro12 cedures for preregistration of a work that is being 

13 prepared for commercial distribution and has not 

14 been published. 

15 ‘‘(2) CLASS OF WORKS.—The regulations estab16 lished under paragraph (1) shall permit 

17 preregistration for any work that is in a class of 

18 works that the Register determines has had a history 

19 of infringement prior to authorized commercial dis20 tribution. 

21 ‘‘(3) APPLICATION FOR REGISTRATION.—Not 

22 later than 3 months after the first publication of the 

23 work, the applicant shall submit to the Copyright Of24 fice— 

25 ‘‘(A) an application for registration of the 

26 work; 
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1 ‘‘(B) a deposit; and 

2 ‘‘(C) the applicable fee. 

3 ‘‘(4) EFFECT OF UNTIMELY APPLICATION.—An 

4 action for infringement under this chapter shall be 

5 dismissed, and no award of statutory damages or at6 torney fees shall be made for a preregistered work, if 

7 the items described in paragraph 3 are not submitted 

8 to the Copyright Office in proper form within the ear9 lier of— 

10 ‘‘(A) 3 months after the first publication of 

11 the work; or 

12 ‘‘(B) 1 month after the copyright owner has 

13 learned of the infringement.’’. 

14 (b) INFRINGEMENT ACTIONS.—Section 411(a) of title 

15 17, United States Code, is amended by inserting 

16 ‘‘preregistration or’’ after ‘‘shall be instituted until’’. 

17 (c) EXCLUSION.—Section 412 of title 17, United States 

18 Code, is amended by inserting ‘‘, an action for infringement 

19 of the copyright of a work that has been preregistered under 

20 section 408(f) before the commencement of the infringe21 ment,’’ after ‘‘section 106A(a)’’. 

22 SEC. 6. FEDERAL SENTENCING GUIDELINES. 

23 (a) REVIEW AND AMENDMENT.—Not later than 180 

24 days after the date of enactment of this Act, the United 

25 States Sentencing Commission, pursuant to its authority 
26

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1 under section 994 of title 28, United States Code, and in 

2 accordance with this section, shall review and, if appro3 priate, amend the Federal sentencing guidelines and policy 

4 statements applicable to persons convicted of intellectual 

5 property rights crimes, including any offense under— 

6 (1) section 506, 1201, or 1202 of title 17, United 

7 States Code; or 

8 (2) section 2318, 2319, 2319A, 2319B, or 2320 

9 of title 18, United States Code. 

10 (b) AUTHORIZATION.—The United States Sentencing 

11 Commission may amend the Federal sentencing guidelines 

12 in accordance with the procedures set forth in section 21(a) 

13 of the Sentencing Act of 1987 (28 U.S.C. 994 note) as 

14 though the authority under that section had not expired. 

15 (c) RESPONSIBILITIES OF UNITED STATES SEN16 TENCING COMMISSION.—In carrying out this subsection, the 

17 United States Sentencing Commission shall— 

18 (1) take all appropriate measures to ensure that 

19 the Federal sentencing guidelines and policy state20 ments described in subsection (a) are sufficiently 

21 stringent to deter, and adequately reflect the nature 

22 of, intellectual property rights crimes; 

23 (2) determine whether to provide a sentencing 

24 enhancement for those convicted of the offenses de25 scribed in subsection (a), if the conduct involves the 
27

S 1932 RS1S 

1 display, performance, publication, reproduction, or 

2 distribution of a copyrighted work before it has been 

3 authorized by the copyright owner, whether in the 

4 media format used by the infringing party or in any 

5 other media format; 

6 (3) determine whether the scope of ‘‘uploading’’ 

7 set forth in application note 3 of section 2B5.3 of the 

8 Federal sentencing guidelines is adequate to address 

9 the loss attributable to people who broadly distribute 

10 copyrighted works without authorization over the 

11 Internet; and 

12 (4) determine whether the sentencing guidelines 

13 and policy statements applicable to the offenses de14 scribed in subsection (a) adequately reflect any harm 

15 to victims from copyright infringement if law enforce16 ment authorities cannot determine how many times 

17 copyright material has been reproduced or distrib18 uted. 

19 SEC. 7. AUTHORIZATION OF APPROPRIATIONS. 

20 There are authorized to be appropriated to the Depart21 ment of Justice $5,000,000 for each of the fiscal years 2005, 

22 2006, 2007, 2008, and 2009 to prosecute violations of intel23 lectual property rights as set forth under sections 2318, 

24 2319, 2319A, 2319B, and 2320 of title 18, United States 

25 Code. 
Calendar No. 482

108TH CONGRESS 

2D SESSION S. 1932

A BILL

To provide criminal penalties for unauthorized recording of motion pictures in a motion picture 

exhibition facility, to provide criminal and civil penalties for unauthorized distribution of commercial prerelease copyrighted works, and for other purposes. 

APRIL 29, 2004

Reported with an amendment