II 

108TH CONGRESS 

1ST 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, and Mr. GRAHAM of South Carolina) introduced the following 

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

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,

3 SECTION 1. SHORT TITLE. 

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

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

6 SEC. 2. CONGRESSIONAL FINDINGS. 

7 Congress finds the following: 
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1 (1) Intellectual property, among other things, 

2 represents the ideas, imagination and creativity 

3 needed to innovate long before a product is brought 

4 to market. As such, it is fundamental to the contin5 ued economic, social, and cultural development of so6 ciety and deserves the protection of our laws. 

7 (2) Music, film, software, and all forms of intel8 lectual property represent one of the strongest and 

9 most significant sectors of the United States econ10 omy, as demonstrated by the fact that these indus11 tries—

12 (A) accounted for more than 5 percent of 

13 the United States Gross Domestic Product 

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

15 (B) employ almost 6 percent of all United 

16 States employment; and 

17 (C) led all major industry sectors in for18 eign sales and exports in 2001. 

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

20 the Internet and technology for the illegal reproduc21 tion and distribution of copyrighted materials, Con22 gress unanimously passed and President Clinton 

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

24 1997. The NET Act is designed to strengthen copy25 right and trademark laws and to permit the prosecu-
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1 tion of individuals in cases involving large-scale ille2 gal reproduction or distribution of copyrighted works 

3 where the infringers act willfully. 

4 (4) Under the NET Act’s requirement of eco5 nomic harm, investigations by law enforcement of 

6 copyright infringements are particularly resource in7 tensive and pose significant challenges. In the inter8 est of broader deterrence and in order to facilitate 

9 the prosecution of particularly egregious copyright 

10 violations, it is important to recognize that a signifi11 cant level of economic harm can be reached by the 

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

13 works. 

14 (5) The use of camcorders and other audio15 visual recording devices in movie theaters to make il16 legal copies of films is posing a serious threat to the 

17 motion picture industry. According to a recent in18 dustry study, 92.4 percent of the first copies of mov19 ies available for download on the Internet originate 

20 from camcorders. 

21 (6) Given the difficulty of enforcement, online 

22 theft of music, film, software, and all forms of intel23 lectual property continues to rise. The negative ef24 fects on this large segment of the United States 

25 economy are significant, as exemplified by almost a 
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1 31 percent drop in sales for the music industry from 

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

3 of the industry acknowledge to be heavily influenced 

4 by the rampant distribution of pirated music. 

5 (7) Federal legislation is necessary and war6 ranted to combat the most egregious forms of online 

7 theft of intellectual property and its significant, neg8 ative economic impact on the United States economy 

9 because—

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

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

12 the Progress of Science and useful Arts, by se13 curing for limited Times to Authors and Inven14 tors the exclusive Right to their respective 

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

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

17 and among the several States.’’; 

18 (B) the importance of the music, film, soft19 ware and other intellectual property-based in20 dustries to the overall health of the United 

21 States economy is well documented and signifi22 cant; and 

23 (C) theft and distribution of intellectual 

24 property across State and international lines oc25 curs on a regular basis.
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1 SEC. 3. CRIMINAL PENALTIES FOR UNAUTHORIZED RE2 CORDING OF MOTION PICTURES IN A MO3 TION PICTURE EXHIBITION FACILITY. 

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

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

6 the following new section: 

7 ‘‘§ 2319B. Unauthorized recording of motion pictures 

8 in a motion picture exhibition facility 

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

10 copyright owner, knowingly uses or attempts to use an 

11 audiovisual recording device in a motion picture exhibition 

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

13 or other audiovisual work protected under title 17, United 

14 States Code, or any part thereof, in a motion picture exhi15 bition facility shall—

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

17 fined under this title, or both; or 

18 ‘‘(2) if the offense is a second or subsequent of19 fense, be imprisoned for no more than 6 years, fined 

20 under this title, or both. 

21 ‘‘(b) FORFEITURE AND DESTRUCTION.—When a per22 son is convicted of a violation of subsection (a), the court 

23 in its judgment of conviction shall, in addition to any pen24 alty provided, order the forfeiture and destruction or other 

25 disposition of all unauthorized copies of motion pictures 

26 or other audiovisual works protected under title 17, 
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1 United States Code, or parts thereof, and any audiovisual 

2 recording devices or other equipment used in connection 

3 with the offense. 

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

5 not prevent any lawfully authorized investigative, protec6 tive, or intelligence activity by an officer, agent, or em7 ployee of the United States, a State, or a political subdivi8 sion of a State, or a person acting pursuant to a contract 

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

10 of a State. 

11 ‘‘(d) VICTIM IMPACT STATEMENT.—

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

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

14 Federal Rules of Criminal Procedure, victims of an 

15 offense under this section shall be permitted to sub16 mit to the probation officer a victim impact state17 ment that identifies the victim of the offense and the 

18 extent and scope of the injury and loss suffered by 

19 the victim, including the estimated economic impact 

20 of the offense on that victim. 

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

22 submitted under this subsection shall include— 

23 ‘‘(A) producers and sellers of legitimate 

24 works affected by conduct involved in the of25 fense; 
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1 ‘‘(B) holders of intellectual property rights 

2 in the works described in subparagraph (A); 

3 and 

4 ‘‘(C) the legal representatives of such pro5 ducers, sellers, and holders. 

6 ‘‘(e) DEFINITIONS.—As used in this section, the fol7 lowing definitions shall apply: 

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

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

10 ‘motion picture’ have, respectively, the meanings 

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

12 States Code. 

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

14 term ‘audiovisual recording device’ means a digital 

15 or analog photographic or video camera, or any 

16 other technology capable of enabling the recording or 

17 transmission of a copyrighted motion picture or 

18 other audiovisual work, or any part thereof, regard19 less of whether audiovisual recording is the sole or 

20 primary purpose of the device. 

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

22 The term ‘motion picture exhibition facility’ means 

23 any theater, screening room, lobby, indoor or out24 door screening venue, ballroom, or other premises 

25 where copyrighted motion pictures or other audio-
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1 visual works are publicly exhibited, regardless of 

2 whether an admission fee is charged.’’. 

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

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

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

6 following:

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

7 SEC. 4. CRIMINAL INFRINGEMENT OF A COMMERCIAL 

8 PRERELEASE COPYRIGHTED WORK. 

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

10 amended— 

11 (1) by redesignating subsection (e) as sub12 section (f); and 

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

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

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

16 States Code, in the case of a computer program, a non17 dramatic musical work, a motion picture or other audio18 visual work, or a sound recording protected under title 17, 

19 United States Code, that is being prepared for commercial 

20 distribution, it shall be conclusively presumed that a per21 son distributed at least 10 copies or phonorecords of the 

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

23 retail value of more than $2,500, if that person—
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1 ‘‘(A) distributes such work by making it avail2 able on a computer network accessible to members 

3 of the public who are able to reproduce the work 

4 through such access without the express consent of 

5 the copyright owner; and 

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

7 was intended for commercial distribution. 

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

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

10 commercial distribution—

11 ‘‘(A) when at the time of unauthorized distribu12 tion, the copyright owner had a reasonable expecta13 tion of substantial commercial distribution and the 

14 work had not yet been so distributed; or 

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

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

17 of unauthorized distribution, the work had been 

18 made available for viewing in motion picture exhi19 bition facilities, but had not been made available to 

20 the general public in the United States in a format 

21 intended to permit viewing outside motion picture 

22 exhibition facilities as defined in section 2319B.’’. 
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1 SEC. 5. CIVIL REMEDIES FOR INFRINGEMENT OF A COM2 MERCIAL PRERELEASE COPYRIGHTED WORK. 

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

4 amended—

5 (1) by striking the first instance of ‘‘The copy6 right’’ and inserting the following: 

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

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

9 ‘‘(2) DAMAGE FOR PRERELEASE INFRINGE10 MENT.—

11 ‘‘(A) IN GENERAL.—In the case of a com12 puter program, a non-dramatic musical work, a 

13 motion picture or other audiovisual work, or a 

14 sound recording protected under title 17, 

15 United States Code, that is being prepared for 

16 commercial distribution, actual damages shall 

17 be presumed conclusively to be no less that 

18 $2,500 per infringement, if a person—

19 ‘‘(i) distributes such work by making 

20 it available on a computer network acces21 sible to members of the public who are able 

22 to reproduce the work through such access 

23 without the express consent of the copy24 right owner; and 
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1 ‘‘(ii) knew or should have known that 

2 the work was intended for commercial dis3 tribution. 

4 ‘‘(B) WORK PREPARED FOR DISTRIBU5 TION.—For purposes of subparagraph (A), a 

6 work protected under this title is being pre7 pared for commercial distribution—

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

9 distribution, the copyright owner had a 

10 reasonable expectation of substantial com11 mercial distribution and the work had not 

12 yet been so distributed; or 

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

14 protected under this title, when at the time 

15 of unauthorized distribution, the work had 

16 been made available for viewing in motion 

17 picture exhibition facilities, but had not 

18 been made available to the general public 

19 in the United States in a format intended 

20 to permit viewing outside motion picture 

21 exhibition facilities as defined in section 

22 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.

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