II 

108TH CONGRESS 

2D SESSION S. 2242

To prevent and punish counterfeiting and copyright piracy, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 26, 2004

Mr. BIDEN (for himself and Mr. NELSON of Nebraska) introduced the following bill; which was read twice and referred to the Committee on the 

Judiciary 

A BILL

To prevent and punish counterfeiting and copyright piracy, 

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 ‘‘Anticounterfeiting Act 

5 of 2004’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 

8 (1) American innovation, and the protection of 

9 that innovation by the government, has been a crit-
2

•S 2242 IS 

1 ical component of the economic growth of this Na2 tion throughout the history of the Nation; 

3 (2) copyright-based industries represent one of 

4 the most valuable economic assets of this country, 

5 contributing over 5 percent of the gross domestic 

6 product of the United States and creating significant 

7 job growth and tax revenues; 

8 (3) the American intellectual property sector 

9 employs approximately 4,300,000 people, rep10 resenting over 3 percent of total United States em11 ployment; 

12 (4) the proliferation of organized criminal coun13 terfeiting enterprises threatens the economic growth 

14 of United States copyright industries; 

15 (5) the American intellectual property sector 

16 has invested millions of dollars to develop highly so17 phisticated authentication features that assist con18 sumers and law enforcement in distinguishing gen19 uine intellectual property products and packaging 

20 from counterfeits; 

21 (6) in order to thwart these industry efforts, 

22 counterfeiters traffic in, and tamper with, genuine 

23 authentication features, for example, by obtaining 

24 genuine authentication features through illicit means 
3

•S 2242 IS 

1 and then commingling these features with counter2 feit software or packaging; 

3 (7) Federal law does not provide adequate civil 

4 and criminal remedies to combat tampering activities 

5 that directly facilitate counterfeiting crimes; and 

6 (8) in order to strengthen Federal enforcement 

7 against counterfeiting of copyrighted works, Con8 gress must enact legislation that— 

9 (A) prohibits trafficking in, and tampering 

10 with, authentication features of copyrighted 

11 works; and 

12 (B) permits aggrieved parties an appro13 priate civil cause of action. 

14 SEC. 3. PROHIBITION AGAINST TRAFFICKING IN ILLICIT 

15 AUTHENTICATION FEATURES. 

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

17 States Code, is amended— 

18 (1) by striking the heading and inserting 

19 ‘‘Trafficking in counterfeit labels, illicit 

20 authentication features, or counterfeit 

21 documentation or packaging’’; 

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

23 following: 

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

25 in subsection (c), knowingly traffics in— 
4

•S 2242 IS 

1 ‘‘(1) a counterfeit label affixed to, or designed 

2 to be affixed to— 

3 ‘‘(A) a phonorecord; 

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

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

6 audiovisual work; or 

7 ‘‘(D) documentation or packaging; 

8 ‘‘(2) an illicit authentication feature affixed to 

9 or embedded in, or designed to be affixed to or em10 bedded in— 

11 ‘‘(A) a phonorecord; 

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

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

14 audiovisual work; or 

15 ‘‘(D) documentation or packaging; or 

16 ‘‘(3) counterfeit documentation or packaging, 

17 shall be fined under this title or imprisoned for not 

18 more than 5 years, or both.’’; 

19 (3) in subsection (b)— 

20 (A) in paragraph (2), by striking ‘‘and’’ at 

21 the end; 

22 (B) in paragraph (3)— 

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

24 have’’ and inserting the following: ‘‘, 
5

•S 2242 IS 

1 ‘audiovisual work’, and ‘copyright owner’ 

2 have’’; and

3 (ii) by striking the period at the end 

4 and inserting a semicolon; and 

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

6 ‘‘(4) the term ‘authentication feature’ means 

7 any hologram, watermark, certification, symbol, 

8 code, image, sequence of numbers or letters, or other 

9 physical feature that either individually or in com10 bination with another feature is used by the respec11 tive copyright owner to verify that a phonorecord, a 

12 copy of a computer program, a copy of a motion pic13 ture or other audiovisual work, or documentation or 

14 packaging is not counterfeit or otherwise infringing 

15 of any copyright; 

16 ‘‘(5) the term ‘documentation or packaging’ 

17 means documentation or packaging for a phono18 record, copy of a computer program, or copy of a 

19 motion picture or other audiovisual work; and 

20 ‘‘(6) the term ‘illicit authentication feature’ 

21 means an authentication feature, that— 

22 ‘‘(A) without the authorization of the re23 spective copyright owner has been tampered 

24 with or altered so as to facilitate the reproduc25 tion or distribution of— 
6

•S 2242 IS 

1 ‘‘(i) a phonorecord; 

2 ‘‘(ii) a copy of a computer program; 

3 ‘‘(iii) a copy of a motion picture or 

4 other audiovisual work; or 

5 ‘‘(iv) documentation or packaging; 

6 in violation of the rights of the copyright owner 

7 under title 17; 

8 ‘‘(B) is genuine, but has been distributed, 

9 or is intended for distribution, without the au10 thorization of the respective copyright owner; or 

11 ‘‘(C) appears to be genuine, but is not.’’; 

12 (4) in subsection (c)— 

13 (A) by striking paragraph (3) and insert14 ing the following: 

15 ‘‘(3) the counterfeit label or illicit authentica16 tion feature is affixed to, is embedded in, or en17 closes, or is designed to be affixed to, to be embed18 ded in, or to enclose— 

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 
7

•S 2242 IS 

1 ‘‘(D) documentation or packaging; or’’; 

2 and 

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

4 computer program’’; 

5 (5) in subsection (d)— 

6 (A) by inserting ‘‘or illicit authentication 

7 features’’ after ‘‘counterfeit labels’’ each place 

8 it appears; 

9 (B) by inserting ‘‘or illicit authentication 

10 features’’ after ‘‘such labels’’; and 

11 (C) by inserting before the period at the 

12 end the following: ‘‘, and of any equipment, de13 vice, or materials used to manufacture, repro14 duce, or assemble the counterfeit labels or illicit 

15 authentication features’’; and 

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

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

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

19 is injured by a violation of this section or is threat20 ened with injury, may bring a civil action in an ap21 propriate United States district court. 

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

23 brought under paragraph (1), the court— 

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

25 permanent injunctions on such terms as the 
8

•S 2242 IS 

1 court determines to be reasonable to prevent or 

2 restrain violations of this section;

3 ‘‘(B) at any time while the action is pend4 ing, may order the impounding, on such terms 

5 as the court determines to be reasonable, of any 

6 article that is in the custody or control of the 

7 alleged violator and that the court has reason8 able cause to believe was involved in a violation 

9 of this section; and 

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

11 ‘‘(i) reasonable attorney fees and 

12 costs; and 

13 ‘‘(ii)(I) actual damages and any addi14 tional profits of the violator, as provided 

15 by paragraph (3); or 

16 ‘‘(II) statutory damages, as provided 

17 by paragraph (4). 

18 ‘‘(3) ACTUAL DAMAGES AND PROFITS.— 

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

20 entitled to recover— 

21 ‘‘(i) the actual damages suffered by 

22 the injured party as a result of a violation 

23 of this section, as provided by subpara24 graph (B); and 
9

•S 2242 IS 

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

2 are attributable to a violation of this sec3 tion and are not taken into account in 

4 computing the actual damages. 

5 ‘‘(B) CALCULATION OF DAMAGES.—The 

6 court shall calculate actual damages by multi7 plying— 

8 ‘‘(i) the value of the phonorecords or 

9 copies to which counterfeit labels, illicit au10 thentication features, or counterfeit docu11 mentation or packaging were affixed or 

12 embedded, or designed to be affixed or em13 bedded; by 

14 ‘‘(ii) the number of phonorecords or 

15 copies to which counterfeit labels, illicit au16 thentication features, or counterfeit docu17 mentation or packaging were affixed or 

18 embedded, or designed to be affixed or em19 bedded, unless such calculation would un20 derestimate the actual harm suffered by 

21 the copyright owner. 

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

23 paragraph, the term ‘value of the phonorecord 

24 or copy’ means— 
10

•S 2242 IS 

1 ‘‘(i) the retail value of an authorized 

2 phonorecord of a copyrighted sound record3 ing; 

4 ‘‘(ii) the retail value of an authorized 

5 copy of a copyrighted computer program; 

6 or 

7 ‘‘(iii) the retail value of a copy of a 

8 copyrighted motion picture or other audio9 visual work. 

10 ‘‘(4) STATUTORY DAMAGES.—The injured party 

11 may elect, at any time before final judgment is ren12 dered, to recover, instead of actual damages and 

13 profits, an award of statutory damages for each vio14 lation of this section in a sum of not less than 

15 $2,500 or more than $25,000, as the court considers 

16 appropriate. 

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

18 increase an award of damages under this subsection 

19 by 3 times the amount that would otherwise be 

20 awarded, as the court considers appropriate, if the 

21 court finds that a person has subsequently violated 

22 this section within 3 years after a final judgment 

23 was entered against that person for a violation of 

24 this section. 
11

•S 2242 IS 

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

2 may not be commenced under this section unless it 

3 is commenced within 3 years after the date on which 

4 the claimant discovers the violation. 

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

6 this section shall enlarge, diminish, or otherwise affect li7 ability under section 1201 or 1202 of title 17.’’. 

8 (b) TECHNICAL AND CONFORMING AMENDMENT.—

9 The item relating to section 2318 in the table of sections 

10 at the beginning of chapter 113 of title 18, United States 

11 Code, is amended by inserting ‘‘or illicit authentication 

12 features’’ after ‘‘counterfeit labels’’.

Æ