108TH CONGRESS

2D SESSION S. 2603

AN ACT

To amend section 227 of the Communications Act of 1934

(47 U.S.C. 227) relating to the prohibition on junk fax

transmissions.

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 TITLE I—JUNK FAXES

2 SEC. 101. SHORT TITLE.

3 This title may be cited as the ‘‘Junk Fax Prevention

4 Act of 2004’’.

5 SEC. 102. PROHIBITION ON FAX TRANSMISSIONS CON6 TAINING UNSOLICITED ADVERTISEMENTS.

7 (a) PROHIBITION.—Section 227(b)(1)(C) of the Com8 munications Act of 1934 (47 U.S.C. 227(b)(1)(C)) is

9 amended to read as follows:

10 ‘‘(C) to use any telephone facsimile ma11 chine, computer, or other device to send, to a

12 telephone facsimile machine, an unsolicited ad13 vertisement, unless—

14 ‘‘(i) the unsolicited advertisement is

15 from a sender with an established business

16 relationship with the recipient;

17 ‘‘(ii) in the case of an unsolicited ad18 vertisement sent based on the established

19 business relationship to a residential tele20 phone facsimile machine, or, after the date

21 of enactment of the Junk Fax Prevention

22 Act of 2004, in the case of an unsolicited

23 advertisement sent based on the estab24 lished business relationship to a business
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1 telephone facsimile machine, such number

2 was obtained by the sender through—

3 ‘‘(I) the voluntary communication

4 of such number, within the context of

5 such established business relationship,

6 from the recipient of the unsolicited

7 advertisement, or

8 ‘‘(II) a directory, advertisement,

9 or site on the World Wide Web to

10 which the recipient voluntarily agreed

11 to make available its facsimile number

12 for public distribution; and

13 ‘‘(iii) the unsolicited advertisement

14 contains a notice meeting the requirements

15 under paragraph (2)(D), except that the

16 exception under clauses (i) and (ii) shall

17 not apply with respect to an unsolicited ad18 vertisement sent to a telephone facsimile

19 machine by a sender to whom a request

20 has been made not to send future unsolic21 ited advertisements to such telephone fac22 simile machine that complies with the re23 quirements under paragraph (2)(E); or’’.
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1 (b) DEFINITION OF ESTABLISHED BUSINESS RELA2 TIONSHIP.—Section 227(a) of the Communications Act of

3 1934 (47 U.S.C. 227(a)) is amended—

4 (1) by redesignating paragraphs (2) through

5 (4) as paragraphs (3) through (5), respectively; and

6 (2) by inserting after paragraph (1) the fol7 lowing:

8 ‘‘(2) The term ‘established business relation9 ship’, for purposes only of subsection (b)(1)(C)(i),

10 shall have the meaning given the term in section

11 64.1200 of title 47, Code of Federal Regulations, as

12 in effect on January 1, 2003, except that—

13 ‘‘(A) such term shall include a relationship

14 between a person or entity and a business sub15 scriber subject to the same terms applicable

16 under such section to a relationship between a

17 person or entity and a residential subscriber;

18 and

19 ‘‘(B) an established business relationship

20 shall be subject to any time limitation estab21 lished pursuant to paragraph (2)(G))’’.

22 (c) REQUIRED NOTICE OF OPT-OUT OPPOR23 TUNITY.—Section 227(b)(2) of the Communications Act

24 of 1934 (47 U.S.C. 227(b)(2)) is amended—
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1 (1) in subparagraph (B), by striking ‘‘and’’ at

2 the end;

3 (2) in subparagraph (C), by striking the period

4 at the end and inserting a semicolon; and

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

6 ‘‘(D) shall provide that a notice contained

7 in an unsolicited advertisement complies with

8 the requirements under this subparagraph only

9 if—

10 ‘‘(i) the notice is clear and con11 spicuous and on the first page of the unso12 licited advertisement;

13 ‘‘(ii) the notice states that the recipi14 ent may make a request to the sender of

15 the unsolicited advertisement not to send

16 any future unsolicited advertisements to a

17 telephone facsimile machine or machines

18 and that failure to comply, within the

19 shortest reasonable time, as determined by

20 the Commission, with such a request meet21 ing the requirements under subparagraph

22 (E) is unlawful;

23 ‘‘(iii) the notice sets forth the require24 ments for a request under subparagraph

25 (E);
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1 ‘‘(iv) the notice includes—

2 ‘‘(I) a domestic contact telephone

3 and facsimile machine number for the

4 recipient to transmit such a request to

5 the sender; and

6 ‘‘(II) a cost-free mechanism for a

7 recipient to transmit a request pursu8 ant to such notice to the sender of the

9 unsolicited advertisement; the Com10 mission shall by rule require the send11 er to provide such a mechanism and

12 may, in the discretion of the Commis13 sion and subject to such conditions as

14 the Commission may prescribe, ex15 empt certain classes of small business

16 senders, but only if the Commission

17 determines that the costs to such class

18 are unduly burdensome given the rev19 enues generated by such small busi20 nesses;

21 ‘‘(v) the telephone and facsimile ma22 chine numbers and the cost-free mecha23 nism set forth pursuant to clause (iv) per24 mit an individual or business to make such
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1 a request during regular business hours;

2 and

3 ‘‘(vi) the notice complies with the re4 quirements of subsection (d);’’.

5 (d) REQUEST TO OPT-OUT OF FUTURE UNSOLIC6 ITED ADVERTISEMENTS.—Section 227(b)(2) of the Com7 munications Act of 1934 (47 U.S.C. 227(b)(2)), as

8 amended by subsection (c), is further amended by adding

9 at the end the following:

10 ‘‘(E) shall provide, by rule, that a request

11 not to send future unsolicited advertisements to

12 a telephone facsimile machine complies with the

13 requirements under this subparagraph only if—

14 ‘‘(i) the request identifies the tele15 phone number or numbers of the telephone

16 facsimile machine or machines to which the

17 request relates;

18 ‘‘(ii) the request is made to the tele19 phone or facsimile number of the sender of

20 such an unsolicited advertisement provided

21 pursuant to subparagraph (D)(iv) or by

22 any other method of communication as de23 termined by the Commission; and

24 ‘‘(iii) the person making the request

25 has not, subsequent to such request, pro-
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1 vided express invitation or permission to

2 the sender, in writing or otherwise, to send

3 such advertisements to such person at such

4 telephone facsimile machine;’’.

5 (e) AUTHORITY TO ESTABLISH NONPROFIT EXCEP6 TION.—Section 227(b)(2) of the Communications Act of

7 1934 (47 U.S.C. 227(b)(2)), as amended by subsections

8 (c) and (d), is further amended by adding at the end the

9 following:

10 ‘‘(F) may, in the discretion of the Commis11 sion and subject to such conditions as the Com12 mission may prescribe, allow professional or

13 trade associations that are tax-exempt nonprofit

14 organizations to send unsolicited advertisements

15 to their members in furtherance of the associa16 tion’s tax-exempt purpose that do not contain

17 the notice required by paragraph (1)(C)(ii), ex18 cept that the Commission may take action

19 under this subparagraph only—

20 ‘‘(i) by regulation issued after public

21 notice and opportunity for public comment;

22 and

23 ‘‘(ii) if the Commission determines

24 that such notice required by paragraph

25 (1)(C)(ii) is not necessary to protect the
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1 ability of the members of such associations

2 to stop such associations from sending any

3 future unsolicited advertisements; and’’.

4 (f) AUTHORITY TO ESTABLISH TIME LIMIT ON ES5 TABLISHED BUSINESS RELATIONSHIP EXCEPTION.—Sec6 tion 227(b)(2) of the Communications Act of 1934 (47

7 U.S.C. 227(b)(2)), as amended by subsections (c), (d),

8 and (e) of this section, is further amended by adding at

9 the end the following:

10 ‘‘(G)(i) may, consistent with clause (ii),

11 limit the duration of the existence of an estab12 lished business relationship to a period after the

13 last occurrence of an action sufficient to estab14 lish such a relationship, but only if—

15 ‘‘(I) the Commission determines that

16 the existence of the exception under para17 graph (1)(C) relating to an established

18 business relationship has resulted in a sig19 nificant number of complaints to the Com20 mission regarding the sending of unsolic21 ited advertisements to telephone facsimile

22 machines;

23 ‘‘(II) upon review of such complaints

24 referred to in subclause (I), the Commis25 sion has reason to believe that a significant
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1 number of such complaints involve unsolic2 ited advertisements that were sent on the

3 basis of an established business relation4 ship that was longer in duration than the

5 Commission believes is consistent with the

6 reasonable expectations of consumers;

7 ‘‘(III) the Commission determines

8 that the costs to senders of demonstrating

9 the existence of an established business re10 lationship within a specified period of time

11 do not outweigh the benefits to recipients

12 of establishing a limitation on such estab13 lished business relationship; and

14 ‘‘(IV) the Commission determines

15 that, with respect to small businesses, the

16 costs are not unduly burdensome, given the

17 revenues generated by small businesses,

18 and taking into account the number of spe19 cific complaints to the Commission regard20 ing the sending of unsolicited advertise21 ments to telephone facsimile machines by

22 small businesses; and

23 ‘‘(ii) may not commence a proceeding to

24 determine whether to limit the duration of the

25 existence of an established business relationship
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1 before the expiration of the 3-year period that

2 begins on the date of the enactment of the

3 Junk Fax Prevention Act of 2004.’’.

4 (g) UNSOLICITED ADVERTISEMENT.—Section

5 227(a)(5) of the Communications Act of 1934, as so re6 designated by subsection (b)(1), is amended by inserting

7 ‘‘, in writing or otherwise’’ before the period at the end.

8 (h) REGULATIONS.—Except as provided in section

9 227(b)(2)(G)(ii) of the Communications Act of 1934 (as

10 added by subsection (f)), not later than 270 days after

11 the date of enactment of this Act, the Federal Commu12 nications Commission shall issue regulations to implement

13 the amendments made by this section.

14 SEC. 103. FCC ANNUAL REPORT REGARDING JUNK FAX EN15 FORCEMENT.

16 Section 227 of the Communications Act of 1934 (47

17 U.S.C. 227) is amended by adding at the end the fol18 lowing:

19 ‘‘(g) JUNK FAX ENFORCEMENT REPORT.—The Com20 mission shall submit an annual report to Congress regard21 ing the enforcement during the past year of the provisions

22 of this section relating to sending of unsolicited advertise23 ments to telephone facsimile machines, which report shall

24 include—
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1 ‘‘(1) the number of complaints received by the

2 Commission during such year alleging that a con3 sumer received an unsolicited advertisement via tele4 phone facsimile machine in violation of the Commis5 sion’s rules;

6 ‘‘(2) the number of citations issued by the Com7 mission pursuant to section 503 during the year to

8 enforce any law, regulation, or policy relating to

9 sending of unsolicited advertisements to telephone

10 facsimile machines;

11 ‘‘(3) the number of notices of apparent liability

12 issued by the Commission pursuant to section 503

13 during the year to enforce any law, regulation, or

14 policy relating to sending of unsolicited advertise15 ments to telephone facsimile machines;

16 ‘‘(4) for each notice referred to in paragraph

17 (3)—

18 ‘‘(A) the amount of the proposed forfeiture

19 penalty involved;

20 ‘‘(B) the person to whom the notice was

21 issued;

22 ‘‘(C) the length of time between the date

23 on which the complaint was filed and the date

24 on which the notice was issued; and

25 ‘‘(D) the status of the proceeding;
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1 ‘‘(5) the number of final orders imposing for2 feiture penalties issued pursuant to section 503 dur3 ing the year to enforce any law, regulation, or policy

4 relating to sending of unsolicited advertisements to

5 telephone facsimile machines;

6 ‘‘(6) for each forfeiture order referred to in

7 paragraph (5)—

8 ‘‘(A) the amount of the penalty imposed by

9 the order;

10 ‘‘(B) the person to whom the order was

11 issued;

12 ‘‘(C) whether the forfeiture penalty has

13 been paid; and

14 ‘‘(D) the amount paid;

15 ‘‘(7) for each case in which a person has failed

16 to pay a forfeiture penalty imposed by such a final

17 order, whether the Commission referred such matter

18 for recovery of the penalty; and

19 ‘‘(8) for each case in which the Commission re20 ferred such an order for recovery—

21 ‘‘(A) the number of days from the date the

22 Commission issued such order to the date of

23 such referral;

24 ‘‘(B) whether an action has been com25 menced to recover the penalty, and if so, the
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1 number of days from the date the Commission

2 referred such order for recovery to the date of

3 such commencement; and

4 ‘‘(C) whether the recovery action resulted

5 in collection of any amount, and if so, the

6 amount collected.’’.

7 SEC. 104. GAO STUDY OF JUNK FAX ENFORCEMENT.

8 (a) IN GENERAL.—The Comptroller General of the

9 United States shall conduct a study regarding complaints

10 received by the Federal Communications Commission con11 cerning unsolicited advertisements sent to telephone fac12 simile machines, which study shall determine—

13 (1) the mechanisms established by the Commis14 sion to receive, investigate, and respond to such

15 complaints;

16 (2) the level of enforcement success achieved by

17 the Commission regarding such complaints;

18 (3) whether complainants to the Commission

19 are adequately informed by the Commission of the

20 responses to their complaints; and

21 (4) whether additional enforcement measures

22 are necessary to protect consumers, including rec23 ommendations regarding such additional enforce24 ment measures.
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1 (b) ADDITIONAL ENFORCEMENT REMEDIES.—In

2 conducting the analysis and making the recommendations

3 required under subsection (a)(4), the Comptroller General

4 shall specifically examine—

5 (1) the adequacy of existing statutory enforce6 ment actions available to the Commission;

7 (2) the adequacy of existing statutory enforce8 ment actions and remedies available to consumers;

9 (3) the impact of existing statutory enforcement

10 remedies on senders of facsimiles;

11 (4) whether increasing the amount of financial

12 penalties is warranted to achieve greater deterrent

13 effect; and

14 (5) whether establishing penalties and enforce15 ment actions for repeat violators or abusive viola16 tions similar to those established under section 1037

17 of title 18, United States Code, would have a greater

18 deterrent effect.

19 (c) REPORT.—Not later than 270 days after the date

20 of the enactment of this Act, the Comptroller General shall

21 submit a report on the results of the study under this sec22 tion to Committee on Energy and Commerce of the House

23 of Representatives and the Committee on Commerce,

24 Science, and Transportation of the Senate.
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1 TITLE II—PROFESSIONAL

2 BOXING SAFETY

3 SEC. 201. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This title may be cited as the

5 ‘‘Professional Boxing Amendments Act of 2004’’.

6 (b) TABLE OF CONTENTS.—The table of contents for

7 this title is as follows:

Sec. 201. Short title; table of contents.

Sec. 202. Amendment of Professional Boxing Safety Act of 1996.

Sec. 203. Definitions.

Sec. 204. Purposes.

Sec. 205. United States Boxing Commission approval, or ABC or commission

sanction, required for matches.

Sec. 206. Safety standards.

Sec. 207. Registration.

Sec. 208. Review.

Sec. 209. Reporting.

Sec. 210. Contract requirements.

Sec. 211. Coercive contracts.

Sec. 212. Sanctioning organizations.

Sec. 213. Required disclosures by sanctioning organizations.

Sec. 214. Required disclosures by promoters and broadcasters.

Sec. 215. Judges and referees.

Sec. 216. Medical registry.

Sec. 217. Conflicts of interest.

Sec. 218. Enforcement.

Sec. 219. Repeal of deadwood.

Sec. 220. Recognition of tribal law.

Sec. 221. Establishment of United States Boxing Commission.

Sec. 222. Study and report on definition of promoter.

Sec. 223. Effective date.

8 SEC. 202. AMENDMENT OF PROFESSIONAL BOXING SAFETY

9 ACT OF 1996.

10 Except as otherwise expressly provided, whenever in

11 this title an amendment or repeal is expressed in terms

12 of an amendment to, or repeal of, a section or other provi13 sion, the reference shall be considered to be made to a
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1 section or other provision of the Professional Boxing Safe2 ty Act of 1996 (15 U.S.C. 6301 et seq.).

3 SEC. 203. DEFINITIONS.

4 (a) IN GENERAL.—Section 2 (15 U.S.C. 6301) is

5 amended to read as follows:

6 ‘‘SEC. 2. DEFINITIONS.

7 ‘‘In this Act:

8 ‘‘(1) COMMISSION.—The term ‘Commission’

9 means the United States Boxing Commission.

10 ‘‘(2) BOUT AGREEMENT.—The term ‘bout

11 agreement’ means a contract between a promoter

12 and a boxer that requires the boxer to participate in

13 a professional boxing match for a particular date.

14 ‘‘(3) BOXER.—The term ‘boxer’ means an indi15 vidual who fights in a professional boxing match.

16 ‘‘(4) BOXING COMMISSION.—The term ‘boxing

17 commission’ means an entity authorized under State

18 or tribal law to regulate professional boxing

19 matches.

20 ‘‘(5) BOXER REGISTRY.—The term ‘boxer reg21 istry’ means any entity certified by the Commission

22 for the purposes of maintaining records and identi23 fication of boxers.
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1 ‘‘(6) BOXING SERVICE PROVIDER.—The term

2 ‘boxing service provider’ means a promoter, man3 ager, sanctioning body, licensee, or matchmaker.

4 ‘‘(7) CONTRACT PROVISION.—The term ‘con5 tract provision’ means any legal obligation between

6 a boxer and a boxing service provider.

7 ‘‘(8) INDIAN LANDS; INDIAN TRIBE.—The

8 terms ‘Indian lands’ and ‘Indian tribe’ have the

9 meanings given those terms by paragraphs (4) and

10 (5), respectively, of section 4 of the Indian Gaming

11 Regulatory Act (25 U.S.C. 2703).

12 ‘‘(9) LICENSEE.—The term ‘licensee’ means an

13 individual who serves as a trainer, corner man, sec14 ond, or cut man for a boxer.

15 ‘‘(10) MANAGER.—The term ‘manager’ means a

16 person other than a promoter who, under contract,

17 agreement, or other arrangement with a boxer, un18 dertakes to control or administer, directly or indi19 rectly, a boxing-related matter on behalf of that

20 boxer, including a person who is a booking agent for

21 a boxer.

22 ‘‘(11) MATCHMAKER.—The term ‘matchmaker’

23 means a person that proposes, selects, and arranges

24 for boxers to participate in a professional boxing

25 match.
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1 ‘‘(12) PHYSICIAN.—The term ‘physician’ means

2 a doctor of medicine legally authorized to practice

3 medicine by the State in which the physician per4 forms such function or action and who has training

5 and experience in dealing with sports injuries, par6 ticularly head trauma.

7 ‘‘(13) PROFESSIONAL BOXING MATCH.—The

8 term ‘professional boxing match’ means a boxing

9 contest held in the United States between individ10 uals for financial compensation. The term ‘profes11 sional boxing match’ does not include a boxing con12 test that is regulated by a duly recognized amateur

13 sports organization, as approved by the Commission.

14 ‘‘(14) PROMOTER.—The term ‘promoter’—

15 ‘‘(A) means the person primarily respon16 sible for organizing, promoting, and producing

17 a professional boxing match; but

18 ‘‘(B) does not include a hotel, casino, re19 sort, or other commercial establishment hosting

20 or sponsoring a professional boxing match

21 unless—

22 ‘‘(i) the hotel, casino, resort, or other

23 commercial establishment is primarily re24 sponsible for organizing, promoting, and

25 producing the match; and
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1 ‘‘(ii) there is no other person primarily

2 responsible for organizing, promoting, and

3 producing the match.

4 ‘‘(15) PROMOTIONAL AGREEMENT.—The term

5 ‘promotional agreement’ means a contract, for the

6 acquisition of rights relating to a boxer’s participa7 tion in a professional boxing match or series of box8 ing matches (including the right to sell, distribute,

9 exhibit, or license the match or matches), with—

10 ‘‘(A) the boxer who is to participate in the

11 match or matches; or

12 ‘‘(B) the nominee of a boxer who is to par13 ticipate in the match or matches, or the nomi14 nee is an entity that is owned, controlled or

15 held in trust for the boxer unless that nominee

16 or entity is a licensed promoter who is con17 veying a portion of the rights previously ac18 quired.

19 ‘‘(16) STATE.—The term ‘State’ means each of

20 the 50 States, Puerto Rico, the District of Columbia,

21 and any territory or possession of the United States,

22 including the Virgin Islands.

23 ‘‘(17) SANCTIONING ORGANIZATION.—The term

24 ‘sanctioning organization’ means an organization,

25 other than a boxing commission, that sanctions pro-
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1 fessional boxing matches, ranks professional boxers,

2 or charges a sanctioning fee for professional boxing

3 matches in the United States—

4 ‘‘(A) between boxers who are residents of

5 different States; or

6 ‘‘(B) that are advertised, otherwise pro7 moted, or broadcast (including closed circuit

8 television) in interstate commerce.

9 ‘‘(18) SUSPENSION.—The term ‘suspension’ in10 cludes within its meaning the temporary revocation

11 of a boxing license.

12 ‘‘(19) TRIBAL ORGANIZATION.—The term ‘trib13 al organization’ has the same meaning as in section

14 4(l) of the Indian Self-Determination and Education

15 Assistance Act (25 U.S.C. 450b(l)).’’.

16 (b) CONFORMING AMENDMENT.—Section 21 (15

17 U.S.C. 6312) is amended to read as follows:

18 ‘‘SEC. 21. PROFESSIONAL BOXING MATCHES CONDUCTED

19 ON INDIAN LANDS.

20 ‘‘(a) IN GENERAL.—Notwithstanding any other pro21 vision of law, a tribal organization may establish a boxing

22 commission to regulate professional boxing matches held

23 on Indian land under the jurisdiction of that tribal organi24 zation.
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1 ‘‘(b) STANDARDS AND LICENSING.—A tribal organi2 zation that establishes a boxing commission shall, by tribal

3 ordinance or resolution, establish and provide for the im4 plementation of health and safety standards, licensing re5 quirements, and other requirements relating to the con6 duct of professional boxing matches that are at least as

7 restrictive as—

8 ‘‘(1) the otherwise applicable requirements of

9 the State in which the Indian land on which the pro10 fessional boxing match is held is located; or

11 ‘‘(2) the guidelines established by the United

12 States Boxing Commission.

13 ‘‘(c) APPLICATION OF ACT TO BOXING MATCHES ON

14 TRIBAL LANDS.—The provisions of this Act apply to pro15 fessional boxing matches held on tribal lands to the same

16 extent and in the same way as they apply to professional

17 boxing matches held in any State.’’.

18 SEC. 204. PURPOSES.

19 Section 3(2) (15 U.S.C. 6302(2)) is amended by

20 striking ‘‘State’’.

21 SEC. 205. UNITED STATES BOXING COMMISSION APPROVAL,

22 OR ABC OR COMMISSION SANCTION, RE23 QUIRED FOR MATCHES.

24 (a) IN GENERAL.—Section 4 (15 U.S.C. 6303) is

25 amended to read as follows:
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1 ‘‘SEC. 4. APPROVAL OR SANCTION REQUIREMENT.

2 ‘‘(a) IN GENERAL.—No person may arrange, pro3 mote, organize, produce, or fight in a professional boxing

4 match within the United States unless the match—

5 ‘‘(1) is approved by the Commission; and

6 ‘‘(2) is held in a State, or on tribal land of a

7 tribal organization, that regulates professional box8 ing matches in accordance with standards and cri9 teria established by the Commission.

10 ‘‘(b) APPROVAL PRESUMED.—

11 ‘‘(1) IN GENERAL.—For purposes of subsection

12 (a), the Commission shall be presumed to have ap13 proved any match other than—

14 ‘‘(A) a match with respect to which the

15 Commission has been informed of an alleged

16 violation of this Act and with respect to which

17 it has notified the supervising boxing commis18 sion that it does not approve;

19 ‘‘(B) a match advertised to the public as a

20 championship match;

21 ‘‘(C) a match scheduled for 10 rounds or

22 more; or

23 ‘‘(D) a match in which 1 of the boxers

24 has—

25 ‘‘(i) suffered 10 consecutive defeats in

26 professional boxing matches; or
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1 ‘‘(ii) has been knocked out 5 consecu2 tive times in professional boxing matches.

3 ‘‘(2) DELEGATION OF APPROVAL AUTHORITY.—

4 Notwithstanding paragraph (1), the Commission

5 shall be presumed to have approved a match de6 scribed in subparagraph (B), (C), or (D) of para7 graph (1) if—

8 ‘‘(A) the Commission has delegated in

9 writing its approval authority with respect to

10 that match to a boxing commission; and

11 ‘‘(B) the boxing commission has approved

12 the match.

13 ‘‘(3) KNOCKED-OUT DEFINED.—Except as may

14 be otherwise provided by the Commission by rule, in

15 paragraph (1)(D)(ii), the term ‘knocked out’ means

16 knocked down and unable to continue after a count

17 of 10 by the referee or stopped from continuing be18 cause of a technical knockout.’’.

19 (b) CONFORMING AMENDMENT.—Section 19 (15

20 U.S.C. 6310) is repealed.

21 SEC. 206. SAFETY STANDARDS.

22 Section 5 (15 U.S.C. 6304) is amended—

23 (1) by striking ‘‘requirements or an alternative

24 requirement in effect under regulations of a boxing

25 commission that provides equivalent protection of
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1 the health and safety of boxers:’’ and inserting ‘‘re2 quirements:’’;

3 (2) by adding at the end of paragraph (1) ‘‘The

4 examination shall include testing for infectious dis5 eases in accordance with standards established by

6 the Commission.’’;

7 (3) by striking paragraph (2) and inserting the

8 following:

9 ‘‘(2) An ambulance continuously present on

10 site.’’;

11 (4) by redesignating paragraphs (3) and (4) as

12 paragraphs (4) and (5), respectively, and inserting

13 after paragraph (2) the following:

14 ‘‘(3) Emergency medical personnel with appro15 priate resuscitation equipment continuously present

16 on site.’’; and

17 (5) by striking ‘‘match.’’ in paragraph (5), as

18 redesignated, and inserting ‘‘match in an amount

19 prescribed by the Commission.’’.

20 SEC. 207. REGISTRATION.

21 Section 6 (15 U.S.C. 6305) is amended—

22 (1) by inserting ‘‘or Indian tribe’’ after ‘‘State’’

23 the second place it appears in subsection (a)(2);

24 (2) by striking the first sentence of subsection

25 (c) and inserting ‘‘A boxing commission shall, in ac-
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1 cordance with requirements established by the Com2 mission, make a health and safety disclosure to a

3 boxer when issuing an identification card to that

4 boxer.’’;

5 (3) by striking ‘‘should’’ in the second sentence

6 of subsection (c) and inserting ‘‘shall, at a min7 imum,’’; and

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

9 ‘‘(d) COPY OF REGISTRATION AND IDENTIFICATION

10 CARDS TO BE SENT TO COMMISSION.—A boxing commis11 sion shall furnish a copy of each registration received

12 under subsection (a), and each identification card issued

13 under subsection (b), to the Commission.’’.

14 SEC. 208. REVIEW.

15 Section 7 (15 U.S.C. 6306) is amended—

16 (1) by striking ‘‘that, except as provided in sub17 section (b), no’’ in subsection (a)(2) and inserting

18 ‘‘that no’’;

19 (2) by striking paragraphs (3) and (4) of sub20 section (a) and inserting the following:

21 ‘‘(3) Procedures to review a summary suspen22 sion when a hearing before the boxing commission is

23 requested by a boxer, licensee, manager, match24 maker, promoter, or other boxing service provider
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1 which provides an opportunity for that person to

2 present evidence.’’;

3 (3) by striking subsection (b); and

4 (4) by striking ‘‘(a) PROCEDURES.—’’.

5 SEC. 209. REPORTING.

6 Section 8 (15 U.S.C. 6307) is amended—

7 (1) by striking ‘‘48 business hours’’ and insert8 ing ‘‘2 business days’’;

9 (2) by striking ‘‘bxoing’’ and inserting ‘‘box10 ing’’; and

11 (3) by striking ‘‘each boxer registry.’’ and in12 serting ‘‘the Commission.’’.

13 SEC. 210. CONTRACT REQUIREMENTS.

14 Section 9 (15 U.S.C. 6307a) is amended to read as

15 follows:

16 ‘‘SEC. 9. CONTRACT REQUIREMENTS.

17 ‘‘(a) IN GENERAL.—The Commission, in consultation

18 with the Association of Boxing Commissions, shall develop

19 guidelines for minimum contractual provisions that shall

20 be included in each bout agreement, boxer-manager con21 tract, and promotional agreement. Each boxing commis22 sion shall ensure that these minimal contractual provisions

23 are present in any such agreement or contract submitted

24 to it.

25 ‘‘(b) FILING AND APPROVAL REQUIREMENTS.—
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1 ‘‘(1) COMMISSION.—A manager or promoter

2 shall submit a copy of each boxer-manager contract

3 and each promotional agreement between that man4 ager or promoter and a boxer to the Commission,

5 and, if requested, to the boxing commission with ju6 risdiction over the bout.

7 ‘‘(2) BOXING COMMISSION.—A boxing commis8 sion may not approve a professional boxing match

9 unless a copy of the bout agreement related to that

10 match has been filed with it and approved by it.

11 ‘‘(c) BOND OR OTHER SURETY.—A boxing commis12 sion may not approve a professional boxing match unless

13 the promoter of that match has posted a surety bond,

14 cashier’s check, letter of credit, cash, or other security

15 with the boxing commission in an amount acceptable to

16 the boxing commission.’’.

17 SEC. 211. COERCIVE CONTRACTS.

18 Section 10 (15 U.S.C. 6307b) is amended—

19 (1) by striking paragraph (3) of subsection (a);

20 (2) by inserting ‘‘OR ELIMINATION’’ after ‘‘MAN21 DATORY’’ in the heading of subsection (b); and

22 (3) by inserting ‘‘or elimination’’ after ‘‘manda23 tory’’ in subsection (b).
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1 SEC. 212. SANCTIONING ORGANIZATIONS.

2 (a) IN GENERAL.—Section 11 (15 U.S.C. 6307c) is

3 amended to read as follows:

4 ‘‘SEC. 11. SANCTIONING ORGANIZATIONS.

5 ‘‘(a) OBJECTIVE CRITERIA.—Within 1 year after the

6 date of enactment of the Professional Boxing Amendments

7 Act of 2004, the Commission shall develop guidelines for

8 objective and consistent written criteria for the rating of

9 professional boxers based on the athletic merits and pro10 fessional record of the boxers. Within 90 days after the

11 Commission’s promulgation of the guidelines, each sanc12 tioning organization shall adopt the guidelines and follow

13 them.

14 ‘‘(b) NOTIFICATION OF CHANGE IN RATING.—A

15 sanctioning organization shall, with respect to a change

16 in the rating of a boxer previously rated by such organiza17 tion in the top 10 boxers—

18 ‘‘(1) post a copy, within 7 days after the

19 change, on its Internet website or home page, if any,

20 including an explanation of the change, for a period

21 of not less than 30 days;

22 ‘‘(2) provide a copy of the rating change and a

23 thorough explanation in writing under penalty of

24 perjury to the boxer and the Commission;
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1 ‘‘(3) provide the boxer an opportunity to appeal

2 the ratings change to the sanctioning organization;

3 and

4 ‘‘(4) apply the objective criteria for ratings re5 quired under subsection (a) in considering any such

6 appeal.

7 ‘‘(c) CHALLENGE OF RATING.—If, after disposing

8 with an appeal under subsection (b)(3), a sanctioning or9 ganization receives a petition from a boxer challenging

10 that organization’s rating of the boxer, it shall (except to

11 the extent otherwise required by the Commission), within

12 7 days after receiving the petition—

13 ‘‘(1) provide to the boxer a written explanation

14 under penalty of perjury of the organization’s rating

15 criteria, its rating of the boxer, and the rationale or

16 basis for its rating (including a response to any spe17 cific questions submitted by the boxer); and

18 ‘‘(2) submit a copy of its explanation to the As19 sociation of Boxing Commissions and the Commis20 sion for their review.’’.

21 (b) CONFORMING AMENDMENTS.—Section 18(e) (15

22 U.S.C. 6309(e)) is amended—

23 (1) by striking ‘‘FEDERAL TRADE COMMIS24 SION,’’ in the subsection heading and inserting

25 ‘‘UNITED STATES BOXING COMMISSION’’; and
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1 (2) by striking ‘‘Federal Trade Commission,’’ in

2 paragraph (1) and inserting ‘‘United States Boxing

3 Commission,’’.

4 SEC. 213. REQUIRED DISCLOSURES BY SANCTIONING OR5 GANIZATIONS.

6 Section 12 (15 U.S.C. 6307d) is amended—

7 (1) by striking the matter preceding paragraph

8 (1) and inserting ‘‘Within 7 days after a professional

9 boxing match of 10 rounds or more, the sanctioning

10 organization, if any, for that match shall provide to

11 the Commission, and, if requested, to the boxing

12 commission in the State or on Indian land respon13 sible for regulating the match, a written statement

14 of—’’;

15 (2) by striking ‘‘will assess’’ in paragraph (1)

16 and inserting ‘‘has assessed, or will assess,’’; and

17 (3) by striking ‘‘will receive’’ in paragraph (2)

18 and inserting ‘‘has received, or will receive,’’.

19 SEC. 214. REQUIRED DISCLOSURES BY PROMOTERS AND

20 BROADCASTERS.

21 Section 13 (15 U.S.C. 6307e) is amended—

22 (1) by striking ‘‘PROMOTERS.’’ in the section

23 caption and inserting ‘‘PROMOTERS AND BROAD24 CASTERS.’’;
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1 (2) by striking so much of subsection (a) as

2 precedes paragraph (1) and inserting the following:

3 ‘‘(a) DISCLOSURES TO BOXING COMMISSIONS AND

4 THE COMMISSION.—Within 7 days after a professional

5 boxing match of 10 rounds or more, the promoter of any

6 boxer participating in that match shall provide to the

7 Commission, and, if requested, to the boxing commission

8 in the State or on Indian land responsible for regulating

9 the match—’’;

10 (3) by striking ‘‘writing,’’ in subsection (a)(1)

11 and inserting ‘‘writing, other than a bout agreement

12 previously provided to the commission,’’;

13 (4) by striking ‘‘all fees, charges, and expenses

14 that will be’’ in subsection (a)(3)(A) and inserting

15 ‘‘a written statement of all fees, charges, and ex16 penses that have been, or will be,’’;

17 (5) by inserting ‘‘a written statement of’’ before

18 ‘‘all’’ in subsection (a)(3)(B);

19 (6) by inserting ‘‘a statement of’’ before ‘‘any’’

20 in subsection (a)(3)(C);

21 (7) by striking the matter in subsection (b) fol22 lowing ‘‘BOXER.—’’ and preceding paragraph (1)

23 and inserting ‘‘Within 7 days after a professional

24 boxing match of 10 rounds or more, the promoter of

25 the match shall provide to each boxer participating
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1 in the bout or match with whom the promoter has

2 a bout or promotional agreement a statement

3 of—’’;

4 (8) by striking ‘‘match;’’ in subsection (b)(1)

5 and inserting ‘‘match, and that the promoter has

6 paid, or agreed to pay, to any other person in con7 nection with the match;’’; and

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

9 ‘‘(d) REQUIRED DISCLOSURES BY BROADCASTERS.—

10 ‘‘(1) IN GENERAL.—A broadcaster that owns

11 the television broadcast rights for a professional box12 ing match of 10 rounds or more shall, within 7 days

13 after that match, provide to the Commission—

14 ‘‘(A) a statement of any advance, guar15 antee, or license fee paid or owed by the broad16 caster to a promoter in connection with that

17 match;

18 ‘‘(B) a copy of any contract executed by or

19 on behalf of the broadcaster with—

20 ‘‘(i) a boxer who participated in that

21 match; or

22 ‘‘(ii) the boxer’s manager, promoter,

23 promotional company, or other representa24 tive or the owner or representative of the

25 site of the match; and
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1 ‘‘(C) a list identifying sources of income

2 received from the broadcast of the match.

3 ‘‘(2) COPY TO BOXING COMMISSION.—Upon re4 quest from the boxing commission in the State or

5 Indian land responsible for regulating a match to

6 which paragraph (1) applies, a broadcaster shall

7 provide the information described in paragraph (1)

8 to that boxing commission.

9 ‘‘(3) CONFIDENTIALITY.—The information pro10 vided to the Commission or to a boxing commission

11 pursuant to this subsection shall be confidential and

12 not revealed by the Commission or a boxing commis13 sion, except that the Commission may publish an

14 analysis of the data in aggregate form or in a man15 ner which does not disclose confidential information

16 about identifiable broadcasters.

17 ‘‘(4) TELEVISION BROADCAST RIGHTS.—In

18 paragraph (1), the term ‘television broadcast rights’

19 means the right to broadcast the match, or any part

20 thereof, via a broadcast station, cable service, or

21 multichannel video programming distributor as such

22 terms are defined in section 3(5), 602(6), and

23 602(13) of the Communications Act of 1934 (47

24 U.S.C. 153(5), 602(6), and 602(13), respectively).’’.
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1 SEC. 215. JUDGES AND REFEREES.

2 (a) IN GENERAL.—Section 16 (15 U.S.C. 6307h) is

3 amended—

4 (1) by inserting ‘‘(a) LICENSING AND ASSIGN5 MENT REQUIREMENT.—’’ before ‘‘No person’’;

6 (2) by striking ‘‘certified and approved’’ and in7 serting ‘‘selected’’;

8 (3) by inserting ‘‘or Indian lands’’ after

9 ‘‘State’’; and

10 (4) by adding at the end the following:

11 ‘‘(b) CHAMPIONSHIP AND 10-ROUND BOUTS.—In ad12 dition to the requirements of subsection (a), no person

13 may arrange, promote, organize, produce, or fight in a

14 professional boxing match advertised to the public as a

15 championship match or in a professional boxing match

16 scheduled for 10 rounds or more unless all referees and

17 judges participating in the match have been licensed by

18 the Commission.

19 ‘‘(c) ROLE OF SANCTIONING ORGANIZATION.—A

20 sanctioning organization may provide a list of judges and

21 referees deemed qualified by that organization to a boxing

22 commission, but the boxing commission shall select, li23 cense, and appoint the judges and referees participating

24 in the match.

25 ‘‘(d) ASSIGNMENT OF NONRESIDENT JUDGES AND

26 REFEREES.—A boxing commission may assign judges and
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1 referees who reside outside that commission’s State or In2 dian land.

3 ‘‘(e) REQUIRED DISCLOSURE.—A judge or referee

4 shall provide to the boxing commission responsible for reg5 ulating a professional boxing match in a State or on In6 dian land a statement of all consideration, including reim7 bursement for expenses, that the judge or referee has re8 ceived, or will receive, from any source for participation

9 in the match. If the match is scheduled for 10 rounds or

10 more, the judge or referee shall also provide such a state11 ment to the Commission.’’.

12 (b) CONFORMING AMENDMENT.—Section 14 (15

13 U.S.C. 6307f) is repealed.

14 SEC. 216. MEDICAL REGISTRY.

15 The Act is amended by inserting after section 13 (15

16 U.S.C. 6307e) the following:

17 ‘‘SEC. 14. MEDICAL REGISTRY.

18 ‘‘(a) IN GENERAL.—The Commission shall establish

19 and maintain, or certify a third party entity to establish

20 and maintain, a medical registry that contains comprehen21 sive medical records and medical denials or suspensions

22 for every licensed boxer.

23 ‘‘(b) CONTENT; SUBMISSION.—The Commission shall

24 determine—
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1 ‘‘(1) the nature of medical records and medical

2 suspensions of a boxer that are to be forwarded to

3 the medical registry; and

4 ‘‘(2) the time within which the medical records

5 and medical suspensions are to be submitted to the

6 medical registry.

7 ‘‘(c) CONFIDENTIALITY.—The Commission shall es8 tablish confidentiality standards for the disclosure of per9 sonally identifiable information to boxing commissions

10 that will—

11 ‘‘(1) protect the health and safety of boxers by

12 making relevant information available to the boxing

13 commissions for use but not public disclosure; and

14 ‘‘(2) ensure that the privacy of the boxers is

15 protected.’’.

16 SEC. 217. CONFLICTS OF INTEREST.

17 Section 17 (15 U.S.C. 6308) is amended—

18 (1) by striking ‘‘enforces State boxing laws,’’ in

19 subsection (a) and inserting ‘‘implements State or

20 tribal boxing laws, no officer or employee of the

21 Commission,’’;

22 (2) by striking ‘‘belong to,’’ and inserting ‘‘hold

23 office in,’’ in subsection (a);

24 (3) by striking the last sentence of subsection

25 (a);
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1 (4) by striking subsection (b) and inserting the

2 following:

3 ‘‘(b) BOXERS.—A boxer may not own or control, di4 rectly or indirectly, an entity that promotes the boxer’s

5 bouts if that entity is responsible for—

6 ‘‘(1) executing a bout agreement or promotional

7 agreement with the boxer’s opponent; or

8 ‘‘(2) providing any payment or other compensa9 tion to—

10 ‘‘(A) the boxer’s opponent for participation

11 in a bout with the boxer;

12 ‘‘(B) the boxing commission that will regu13 late the bout; or

14 ‘‘(C) ring officials who officiate at the

15 bout.’’.

16 SEC. 218. ENFORCEMENT.

17 Section 18 (15 U.S.C. 6309) is amended—

18 (1) by striking ‘‘(a) INJUNCTIONS.—’’ in sub19 section (a) and inserting ‘‘(a) ACTIONS BY ATTOR20 NEY GENERAL.—’’;

21 (2) by striking ‘‘enforces State boxing laws,’’ in

22 subsection (b)(3) and inserting ‘‘implements State or

23 tribal boxing laws, any officer or employee of the

24 Commission,’’;
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1 (3) by inserting ‘‘has engaged in or’’ after ‘‘or2 ganization’’ in subsection (c);

3 (4) by striking ‘‘subsection (b)’’ in subsection

4 (c)(3) and inserting ‘‘subsection (b), a civil penalty,

5 or’’; and

6 (5) by striking ‘‘boxer’’ in subsection (d) and

7 inserting ‘‘person’’.

8 SEC. 219. REPEAL OF DEADWOOD.

9 Section 20 (15 U.S.C. 6311) is repealed.

10 SEC. 220. RECOGNITION OF TRIBAL LAW.

11 Section 22 (15 U.S.C. 6313) is amended—

12 (1) by insert ‘‘OR TRIBAL’’ in the section

13 heading after ‘‘STATE’’; and

14 (2) by inserting ‘‘or Indian tribe’’ after

15 ‘‘State’’.

16 SEC. 221. ESTABLISHMENT OF UNITED STATES BOXING

17 COMMISSION.

18 (a) IN GENERAL.—The Act is amended by adding at

19 the end the following:

20 ‘‘TITLE II—UNITED STATES

21 BOXING COMMISSION

22 ‘‘SEC. 201. PURPOSE.

23 ‘‘The purpose of this title is to protect the health,

24 safety, and welfare of boxers and to ensure fairness in the

25 sport of professional boxing.
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1 ‘‘SEC. 202. UNITED STATES BOXING COMMISSION.

2 ‘‘(a) IN GENERAL.—The United States Boxing Com3 mission is established as a commission within the Depart4 ment of Commerce.

5 ‘‘(b) MEMBERS.—

6 ‘‘(1) IN GENERAL.—The Commission shall con7 sist of 3 members appointed by the President, by

8 and with the advice and consent of the Senate.

9 ‘‘(2) QUALIFICATIONS.—

10 ‘‘(A) IN GENERAL.—Each member of the

11 Commission shall be a citizen of the United

12 States who—

13 ‘‘(i) has extensive experience in pro14 fessional boxing activities or in a field di15 rectly related to professional sports;

16 ‘‘(ii) is of outstanding character and

17 recognized integrity; and

18 ‘‘(iii) is selected on the basis of train19 ing, experience, and qualifications and

20 without regard to political party affiliation.

21 ‘‘(B) SPECIFIC QUALIFICATIONS FOR CER22 TAIN MEMBERS.—At least 1 member of the

23 Commission shall be a former member of a local

24 boxing authority. If practicable, at least 1 mem25 ber of the Commission shall be a physician or
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1 other health care professional duly licensed as

2 such.

3 ‘‘(C) DISINTERESTED PERSONS.—No

4 member of the Commission may, while serving

5 as a member of the Commission—

6 ‘‘(i) be engaged as a professional

7 boxer, boxing promoter, agent, fight man8 ager, matchmaker, referee, judge, or in any

9 other capacity in the conduct of the busi10 ness of professional boxing;

11 ‘‘(ii) have any pecuniary interest in

12 the earnings of any boxer or the proceeds

13 or outcome of any boxing match; or

14 ‘‘(iii) serve as a member of a boxing

15 commission.

16 ‘‘(3) BIPARTISAN MEMBERSHIP.—Not more

17 than 2 members of the Commission may be members

18 of the same political party.

19 ‘‘(4) GEOGRAPHIC BALANCE.—Not more than 2

20 members of the Commission may be residents of the

21 same geographic region of the United States when

22 appointed to the Commission. For purposes of the

23 preceding sentence, the area of the United States

24 east of the Mississippi River is a geographic region,
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1 and the area of the United States west of the Mis2 sissippi River is a geographic region.

3 ‘‘(5) TERMS.—

4 ‘‘(A) IN GENERAL.—The term of a mem5 ber of the Commission shall be 3 years.

6 ‘‘(B) REAPPOINTMENT.—Members of the

7 Commission may be reappointed to the Com8 mission.

9 ‘‘(C) MIDTERM VACANCIES.—A member of

10 the Commission appointed to fill a vacancy in

11 the Commission occurring before the expiration

12 of the term for which the member’s predecessor

13 was appointed shall be appointed for the re14 mainder of that unexpired term.

15 ‘‘(D) CONTINUATION PENDING REPLACE16 MENT.—A member of the Commission may

17 serve after the expiration of that member’s

18 term until a successor has taken office.

19 ‘‘(6) REMOVAL.—A member of the Commission

20 may be removed by the President only for cause.

21 ‘‘(c) EXECUTIVE DIRECTOR.—

22 ‘‘(1) IN GENERAL.—The Commission shall em23 ploy an Executive Director to perform the adminis24 trative functions of the Commission under this Act,
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1 and such other functions and duties of the Commis2 sion as the Commission shall specify.

3 ‘‘(2) DISCHARGE OF FUNCTIONS.—Subject to

4 the authority, direction, and control of the Commis5 sion the Executive Director shall carry out the func6 tions and duties of the Commission under this Act.

7 ‘‘(d) GENERAL COUNSEL.—The Commission shall

8 employ a General Counsel to provide legal counsel and ad9 vice to the Executive Director and the Commission in the

10 performance of its functions under this Act, and to carry

11 out such other functions and duties as the Commission

12 shall specify.

13 ‘‘(e) STAFF.—The Commission shall employ such ad14 ditional staff as the Commission considers appropriate to

15 assist the Executive Director and the General Counsel in

16 carrying out the functions and duties of the Commission

17 under this Act.

18 ‘‘(f) COMPENSATION.—

19 ‘‘(1) MEMBERS OF COMMISSION.—

20 ‘‘(A) IN GENERAL.—Each member of the

21 Commission shall be compensated at a rate

22 equal to the daily equivalent of the annual rate

23 of basic pay prescribed for level IV of the Exec24 utive Schedule under section 5315 of title 5,

25 United States Code, for each day (including
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1 travel time) during which such member is en2 gaged in the performance of the duties of the

3 Commission.

4 ‘‘(B) TRAVEL EXPENSES.—The members

5 of the Commission shall be allowed travel ex6 penses, including per diem in lieu of subsist7 ence, at rates authorized for employees of agen8 cies under subchapter I of chapter 57 of title 5,

9 United States Code, while away from their

10 homes or regular places of business in the per11 formance of services for the Commission.

12 ‘‘(2) EXECUTIVE DIRECTOR AND STAFF.—The

13 Commission shall fix the compensation of the Execu14 tive Director, the General Counsel, and other per15 sonnel of the Commission. The rate of pay for the

16 Executive Director, the General Counsel, and other

17 personnel may not exceed the rate payable for level

18 V of the Executive Schedule under section 5316 of

19 title 5, United States Code.

20 ‘‘SEC. 203. FUNCTIONS.

21 ‘‘(a) PRIMARY FUNCTIONS.—The primary functions

22 of the Commission are—

23 ‘‘(1) to protect the health, safety, and general

24 interests of boxers consistent with the provisions of

25 this Act; and
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1 ‘‘(2) to ensure uniformity, fairness, and integ2 rity in professional boxing.

3 ‘‘(b) SPECIFIC FUNCTIONS.—The Commission

4 shall—

5 ‘‘(1) administer title I of this Act;

6 ‘‘(2) promulgate uniform standards for profes7 sional boxing in consultation with the Association of

8 Boxing Commissions;

9 ‘‘(3) except as otherwise determined by the

10 Commission, oversee all professional boxing matches

11 in the United States;

12 ‘‘(4) work with the boxing commissions of the

13 several States and tribal organizations—

14 ‘‘(A) to improve the safety, integrity, and

15 professionalism of professional boxing in the

16 United States;

17 ‘‘(B) to enhance physical, medical, finan18 cial, and other safeguards established for the

19 protection of professional boxers; and

20 ‘‘(C) to improve the status and standards

21 of professional boxing in the United States;

22 ‘‘(5) ensure, in cooperation with the Attorney

23 General (who shall represent the Commission in any

24 judicial proceeding under this Act), the chief law en25 forcement officer of the several States, and other ap-
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1 propriate officers and agencies of Federal, State,

2 and local government, that Federal and State laws

3 applicable to professional boxing matches in the

4 United States are vigorously, effectively, and fairly

5 enforced;

6 ‘‘(6) review boxing commission regulations for

7 professional boxing and provide assistance to such

8 authorities in meeting minimum standards pre9 scribed by the Commission under this title;

10 ‘‘(7) serve as the coordinating body for all ef11 forts in the United States to establish and maintain

12 uniform minimum health and safety standards for

13 professional boxing;

14 ‘‘(8) if the Commission determines it to be ap15 propriate, publish a newspaper, magazine, or other

16 publication and establish and maintain a website

17 consistent with the purposes of the Commission;

18 ‘‘(9) procure the temporary and intermittent

19 services of experts and consultants to the extent au20 thorized by section 3109(b) of title 5, United States

21 Code, at rates the Commission determines to be rea22 sonable; and

23 ‘‘(10) promulgate rules, regulations, and guid24 ance, and take any other action necessary and prop-
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1 er to accomplish the purposes of, and consistent

2 with, the provisions of this title.

3 ‘‘(c) PROHIBITIONS.—The Commission may not—

4 ‘‘(1) promote boxing events or rank professional

5 boxers; or

6 ‘‘(2) provide technical assistance to, or author7 ize the use of the name of the Commission by, box8 ing commissions that do not comply with require9 ments of the Commission.

10 ‘‘(d) USE OF NAME.—The Commission shall have the

11 exclusive right to use the name ‘United States Boxing

12 Commission’. Any person who, without the permission of

13 the Commission, uses that name or any other exclusive

14 name, trademark, emblem, symbol, or insignia of the Com15 mission for the purpose of inducing the sale or exchange

16 of any goods or services, or to promote any exhibition, per17 formance, or sporting event, shall be subject to suit in a

18 civil action by the Commission for the remedies provided

19 in the Act of July 5, 1946 (commonly known as the

20 ‘Trademark Act of 1946’; 15 U.S.C. 1051 et seq.).

21 ‘‘SEC. 204. LICENSING AND REGISTRATION OF BOXING PER22 SONNEL.

23 ‘‘(a) LICENSING.—

24 ‘‘(1) REQUIREMENT FOR LICENSE.—No person

25 may compete in a professional boxing match or serve
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1 as a boxing manager, boxing promoter, or sanc2 tioning organization for a professional boxing match

3 except as provided in a license granted to that per4 son under this subsection.

5 ‘‘(2) APPLICATION AND TERM.—

6 ‘‘(A) IN GENERAL.—The Commission

7 shall—

8 ‘‘(i) establish application procedures,

9 forms, and fees;

10 ‘‘(ii) establish and publish appropriate

11 standards for licenses granted under this

12 section; and

13 ‘‘(iii) issue a license to any person

14 who, as determined by the Commission,

15 meets the standards established by the

16 Commission under this title.

17 ‘‘(B) DURATION.—A license issued under

18 this section shall be for a renewable—

19 ‘‘(i) 4-year term for a boxer; and

20 ‘‘(ii) 2-year term for any other person.

21 ‘‘(C) PROCEDURE.—The Commission may

22 issue a license under this paragraph through

23 boxing commissions or in a manner determined

24 by the Commission.

25 ‘‘(b) LICENSING FEES.—
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1 ‘‘(1) AUTHORITY.—The Commission may pre2 scribe and charge reasonable fees for the licensing of

3 persons under this title. The Commission may set,

4 charge, and adjust varying fees on the basis of clas5 sifications of persons, functions, and events deter6 mined appropriate by the Commission.

7 ‘‘(2) LIMITATIONS.—In setting and charging

8 fees under paragraph (1), the Commission shall en9 sure that, to the maximum extent practicable—

10 ‘‘(A) club boxing is not adversely effected;

11 ‘‘(B) sanctioning organizations and pro12 moters pay comparatively the largest portion of

13 the fees; and

14 ‘‘(C) boxers pay as small a portion of the

15 fees as is possible.

16 ‘‘(3) COLLECTION.—Fees established under this

17 subsection may be collected through boxing commis18 sions or by any other means determined appropriate

19 by the Commission.

20 ‘‘SEC. 205. NATIONAL REGISTRY OF BOXING PERSONNEL.

21 ‘‘(a) REQUIREMENT FOR REGISTRY.—The Commis22 sion shall establish and maintain (or authorize a third

23 party to establish and maintain) a unified national com24 puterized registry for the collection, storage, and retrieval

25 of information related to the performance of its duties.
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1 ‘‘(b) CONTENTS.—The information in the registry

2 shall include the following:

3 ‘‘(1) BOXERS.—A list of professional boxers

4 and data in the medical registry established under

5 section 114 of this Act, which the Commission shall

6 secure from disclosure in accordance with the con7 fidentiality requirements of section 114(c).

8 ‘‘(2) OTHER PERSONNEL.—Information (perti9 nent to the sport of professional boxing) on boxing

10 promoters, boxing matchmakers, boxing managers,

11 trainers, cut men, referees, boxing judges, physi12 cians, and any other personnel determined by the

13 Commission as performing a professional activity for

14 professional boxing matches.

15 ‘‘SEC. 206. CONSULTATION REQUIREMENTS.

16 ‘‘The Commission shall consult with the Association

17 of Boxing Commissions—

18 ‘‘(1) before prescribing any regulation or estab19 lishing any standard under the provisions of this

20 title; and

21 ‘‘(2) not less than once each year regarding

22 matters relating to professional boxing.

23 ‘‘SEC. 207. MISCONDUCT.

24 ‘‘(a) SUSPENSION AND REVOCATION OF LICENSE OR

25 REGISTRATION.—
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1 ‘‘(1) AUTHORITY.—The Commission may, after

2 notice and opportunity for a hearing, suspend or re3 voke any license issued under this title if the Com4 mission finds that—

5 ‘‘(A) the license holder has violated any

6 provision of this Act;

7 ‘‘(B) there are reasonable grounds for be8 lief that a standard prescribed by the Commis9 sion under this title is not being met, or that

10 bribery, collusion, intentional losing, racket11 eering, extortion, or the use of unlawful threats,

12 coercion, or intimidation have occurred in con13 nection with a license; or

14 ‘‘(C) the suspension or revocation is nec15 essary for the protection of health and safety or

16 is otherwise in the public interest.

17 ‘‘(2) PERIOD OF SUSPENSION.—

18 ‘‘(A) IN GENERAL.—A suspension of a li19 cense under this section shall be effective for a

20 period determined appropriate by the Commis21 sion except as provided in subparagraph (B).

22 ‘‘(B) SUSPENSION FOR MEDICAL REA23 SONS.—In the case of a suspension or denial of

24 the license of a boxer for medical reasons by the

25 Commission, the Commission may terminate
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1 the suspension or denial at any time that a phy2 sician certifies that the boxer is fit to partici3 pate in a professional boxing match. The Com4 mission shall prescribe the standards and proce5 dures for accepting certifications under this

6 subparagraph.

7 ‘‘(3) PERIOD OF REVOCATION.—In the case of

8 a revocation of the license of a boxer, the revocation

9 shall be for a period of not less than 1 year.

10 ‘‘(b) INVESTIGATIONS AND INJUNCTIONS.—

11 ‘‘(1) AUTHORITY.—The Commission may—

12 ‘‘(A) conduct any investigation that it con13 siders necessary to determine whether any per14 son has violated, or is about to violate, any pro15 vision of this Act or any regulation prescribed

16 under this Act;

17 ‘‘(B) require or permit any person to file

18 with it a statement in writing, under oath or

19 otherwise as the Commission shall determine,

20 as to all the facts and circumstances concerning

21 the matter to be investigated;

22 ‘‘(C) in its discretion, publish information

23 concerning any violations; and

24 ‘‘(D) investigate any facts, conditions,

25 practices, or matters to aid in the enforcement
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1 of the provisions of this Act, in the prescribing

2 of regulations under this Act, or in securing in3 formation to serve as a basis for recommending

4 legislation concerning the matters to which this

5 Act relates.

6 ‘‘(2) POWERS.—

7 ‘‘(A) IN GENERAL.—For the purpose of

8 any investigation under paragraph (1) or any

9 other proceeding under this title—

10 ‘‘(i) any officer designated by the

11 Commission may administer oaths and af12 firmations, subpoena or otherwise compel

13 the attendance of witnesses, take evidence,

14 and require the production of any books,

15 papers, correspondence, memoranda, or

16 other records the Commission considers

17 relevant or material to the inquiry; and

18 ‘‘(ii) the provisions of sections 6002

19 and 6004 of title 18, United States Code,

20 shall apply.

21 ‘‘(B) WITNESSES AND EVIDENCE.—The

22 attendance of witnesses and the production of

23 any documents under subparagraph (A) may be

24 required from any place in the United States,
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1 including Indian land, at any designated place

2 of hearing.

3 ‘‘(3) ENFORCEMENT OF SUBPOENAS.—

4 ‘‘(A) CIVIL ACTION.—In case of contumacy

5 by, or refusal to obey a subpoena issued to, any

6 person, the Commission may file an action in

7 any district court of the United States within

8 the jurisdiction of which an investigation or

9 proceeding is carried out, or where that person

10 resides or carries on business, to enforce the at11 tendance and testimony of witnesses and the

12 production of books, papers, correspondence,

13 memorandums, and other records. The court

14 may issue an order requiring the person to ap15 pear before the Commission to produce records,

16 if so ordered, or to give testimony concerning

17 the matter under investigation or in question.

18 ‘‘(B) FAILURE TO OBEY.—Any failure to

19 obey an order issued by a court under subpara20 graph (A) may be punished as contempt of that

21 court.

22 ‘‘(C) PROCESS.—All process in any con23 tempt case under subparagraph (A) may be

24 served in the judicial district in which the per-
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1 son is an inhabitant or in which the person may

2 be found.

3 ‘‘(4) EVIDENCE OF CRIMINAL MISCONDUCT.—

4 ‘‘(A) IN GENERAL.—No person may be ex5 cused from attending and testifying or from

6 producing books, papers, contracts, agreements,

7 and other records and documents before the

8 Commission, in obedience to the subpoena of

9 the Commission, or in any cause or proceeding

10 instituted by the Commission, on the ground

11 that the testimony or evidence, documentary or

12 otherwise, required of that person may tend to

13 incriminate the person or subject the person to

14 a penalty or forfeiture.

15 ‘‘(B) LIMITED IMMUNITY.—No individual

16 may be prosecuted or subject to any penalty or

17 forfeiture for, or on account of, any transaction,

18 matter, or thing concerning the matter about

19 which that individual is compelled, after having

20 claimed a privilege against self-incrimination, to

21 testify or produce evidence, documentary or

22 otherwise, except that the individual so testi23 fying shall not be exempt from prosecution and

24 punishment for perjury committed in so testi25 fying.
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1 ‘‘(5) INJUNCTIVE RELIEF.—If the Commission

2 determines that any person is engaged or about to

3 engage in any act or practice that constitutes a vio4 lation of any provision of this Act, or of any regula5 tion prescribed under this Act, the Commission may

6 bring an action in the appropriate district court of

7 the United States, the United States District Court

8 for the District of Columbia, or the United States

9 courts of any territory or other place subject to the

10 jurisdiction of the United States, to enjoin the act

11 or practice, and upon a proper showing, the court

12 shall grant without bond a permanent or temporary

13 injunction or restraining order.

14 ‘‘(6) MANDAMUS.—Upon application of the

15 Commission, the district courts of the United States,

16 the United States District Court for the District of

17 Columbia, and the United States courts of any terri18 tory or other place subject to the jurisdiction of the

19 United States, shall have jurisdiction to issue writs

20 of mandamus commanding any person to comply

21 with the provisions of this Act or any order of the

22 Commission.

23 ‘‘(c) INTERVENTION IN CIVIL ACTIONS.—

24 ‘‘(1) IN GENERAL.—The Commission, on behalf

25 of the public interest, may intervene of right as pro-
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1 vided under rule 24(a) of the Federal Rules of Civil

2 Procedure in any civil action relating to professional

3 boxing filed in a district court of the United States.

4 ‘‘(2) AMICUS FILING.—The Commission may

5 file a brief in any action filed in a court of the

6 United States on behalf of the public interest in any

7 case relating to professional boxing.

8 ‘‘(d) HEARINGS BY COMMISSION.—Hearings con9 ducted by the Commission under this Act shall be public

10 and may be held before any officer of the Commission.

11 The Commission shall keep appropriate records of the

12 hearings.

13 ‘‘SEC. 208. NONINTERFERENCE WITH BOXING COMMIS14 SIONS.

15 ‘‘(a) NONINTERFERENCE.—Nothing in this Act pro16 hibits any boxing commission from exercising any of its

17 powers, duties, or functions with respect to the regulation

18 or supervision of professional boxing or professional box19 ing matches to the extent not inconsistent with the provi20 sions of this Act.

21 ‘‘(b) MINIMUM STANDARDS.—Nothing in this Act

22 prohibits any boxing commission from enforcing local

23 standards or requirements that exceed the minimum

24 standards or requirements promulgated by the Commis25 sion under this Act.
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1 ‘‘SEC. 209. ASSISTANCE FROM OTHER AGENCIES.

2 ‘‘Any employee of any executive department, agency,

3 bureau, board, commission, office, independent establish4 ment, or instrumentality may be detailed to the Commis5 sion, upon the request of the Commission, on a reimburs6 able or nonreimbursable basis, with the consent of the ap7 propriate authority having jurisdiction over the employee.

8 While so detailed, an employee shall continue to receive

9 the compensation provided pursuant to law for the employ10 ee’s regular position of employment and shall retain, with11 out interruption, the rights and privileges of that employ12 ment.

13 ‘‘SEC. 210. REPORTS.

14 ‘‘(a) ANNUAL REPORT.—The Commission shall sub15 mit a report on its activities to the Senate Committee on

16 Commerce, Science, and Transportation and the House of

17 Representatives Committee on Commerce each year. The

18 annual report shall include—

19 ‘‘(1) a detailed discussion of the activities of the

20 Commission for the year covered by the report; and

21 ‘‘(2) an overview of the licensing and enforce22 ment activities of the State and tribal organization

23 boxing commissions.

24 ‘‘(b) PUBLIC REPORT.—The Commission shall annu25 ally issue and publicize a report of the Commission on the

26 progress made at Federal and State levels and on Indian
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1 lands in the reform of professional boxing, which shall in2 clude comments on issues of continuing concern to the

3 Commission.

4 ‘‘(c) FIRST ANNUAL REPORT ON THE COMMIS5 SION.—The first annual report under this title shall be

6 submitted not later than 2 years after the effective date

7 of this title.

8 ‘‘SEC. 211. INITIAL IMPLEMENTATION.

9 ‘‘(a) TEMPORARY EXEMPTION.—The requirements

10 for licensing under this title do not apply to a person for

11 the performance of an activity as a boxer, boxing judge,

12 or referee, or the performance of any other professional

13 activity in relation to a professional boxing match, if the

14 person is licensed by a boxing commission to perform that

15 activity as of the effective date of this title.

16 ‘‘(b) EXPIRATION.—The exemption under subsection

17 (a) with respect to a license issued by a boxing commission

18 expires on the earlier of—

19 ‘‘(A) the date on which the license expires;

20 or

21 ‘‘(B) the date that is 2 years after the date

22 of the enactment of the Professional Boxing

23 Amendments Act of 2004.
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1 ‘‘SEC. 212. AUTHORIZATION OF APPROPRIATIONS.

2 ‘‘(a) IN GENERAL.—There are authorized to be ap3 propriated for the Commission for each fiscal year such

4 sums as may be necessary for the Commission to perform

5 its functions for that fiscal year.

6 ‘‘(b) RECEIPTS CREDITED AS OFFSETTING COLLEC7 TIONS.—Notwithstanding section 3302 of title 31, United

8 States Code, any fee collected under this title—

9 ‘‘(1) shall be credited as offsetting collections to

10 the account that finances the activities and services

11 for which the fee is imposed;

12 ‘‘(2) shall be available for expenditure only to

13 pay the costs of activities and services for which the

14 fee is imposed; and

15 ‘‘(3) shall remain available until expended.’’.

16 (b) CONFORMING AMENDMENTS.—

17 (1) PBSA.—The Professional Boxing Safety

18 Act of 1996, as amended by this Act, is further

19 amended—

20 (A) by striking section 1 and inserting the

21 following:

22 ‘‘SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

23 ‘‘(a) SHORT TITLE.—This Act may be cited as the

24 ‘Professional Boxing Safety Act’.

25 ‘‘(b) TABLE OF CONTENTS.—The table of contents

26 for this Act is as follows:
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‘‘Section 1. Short title; table of contents.

‘‘Sec. 2. Definitions.

‘‘TITLE I—PROFESSIONAL BOXING SAFETY

‘‘Sec. 101. Purposes.

‘‘Sec. 102. Approval or sanction requirement.

‘‘Sec. 103. Safety standards.

‘‘Sec. 104. Registration.

‘‘Sec. 105. Review.

‘‘Sec. 106. Reporting.

‘‘Sec. 107. Contract requirements.

‘‘Sec. 108. Protection from coercive contracts.

‘‘Sec. 109. Sanctioning organizations.

‘‘Sec. 110. Required disclosures to State boxing commissions by sanctioning organizations.

‘‘Sec. 111. Required disclosures by promoters and broadcasters.

‘‘Sec. 112. Medical registry.

‘‘Sec. 113. Confidentiality.

‘‘Sec. 114. Judges and referees.

‘‘Sec. 115. Conflicts of interest.

‘‘Sec. 116. Enforcement.

‘‘Sec. 117. Professional boxing matches conducted on Indian lands.

‘‘Sec. 118. Relationship with State or Tribal law.

‘‘TITLE II—UNITED STATES BOXING COMMISSION

‘‘Sec. 201. Purpose.

‘‘Sec. 202. United States Boxing Commission.

‘‘Sec. 203. Functions.

‘‘Sec. 204. Licensing and registration of boxing personnel.

‘‘Sec. 205. National registry of boxing personnel.

‘‘Sec. 206. Consultation requirements.

‘‘Sec. 207. Misconduct.

‘‘Sec. 208. Noninterference with boxing commissions

‘‘Sec. 209. Assistance from other agencies.

‘‘Sec. 210. Reports.

‘‘Sec. 211. Initial implementation.

‘‘Sec. 212. Authorization of appropriations.’’;

1 (B) by inserting before section 3 the fol2 lowing:

3 ‘‘TITLE I—PROFESSIONAL

4 BOXING SAFETY’’;

5 (C) by redesignating sections 3, 4, 5, 6, 7,

6 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, and

7 22 as sections 101 through 118, respectively;
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1 (D) by striking subsection (a) of section

2 113, as redesignated, and inserting the fol3 lowing:

4 ‘‘(a) IN GENERAL.—Except to the extent required in

5 a legal, administrative, or judicial proceeding, a boxing

6 commission, an Attorney General, or the Commission may

7 not disclose to the public any matter furnished by a pro8 moter under section 111.’’;

9 (E) by striking ‘‘section 13’’ in subsection

10 (b) of section 113, as redesignated, and insert11 ing ‘‘section 111’’;

12 (F) by striking ‘‘9(b), 10, 11, 12, 13, 14,

13 or 16,’’ in paragraph (1) of section 116(b), as

14 redesignated, and inserting ‘‘107, 108, 109,

15 110, 111, or 114,’’;

16 (G) by striking ‘‘9(b), 10, 11, 12, 13, 14,

17 or 16’’ in paragraph (2) of section 116(b), as

18 redesignated, and inserting ‘‘107, 108, 109,

19 110, 111, or 114’’;

20 (H) by striking ‘‘section 17(a)’’ in sub21 section (b)(3) of section 116, as redesignated,

22 and inserting ‘‘section 115(a)’’;

23 (I) by striking ‘‘section 10’’ in subsection

24 (e)(3) of section 116, as redesignated, and in25 serting ‘‘section 108’’; and
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1 (J) by striking ‘‘of this Act’’ each place it

2 appears in sections 101 through 120, as redes3 ignated, and inserting ‘‘of this title’’.

4 (2) COMPENSATION OF MEMBERS.—Section

5 5315 of title 5, United States Code, is amended by

6 adding at the end the following:

7 ‘‘Members of the United States Boxing Com8 mission.’’.

9 SEC. 222. STUDY AND REPORT ON DEFINITION OF PRO10 MOTER.

11 (a) STUDY.—The United States Boxing Commission

12 shall conduct a study on how the term ‘‘promoter’’ should

13 be defined for purposes of the Professional Boxing Safety

14 Act.

15 (b) HEARINGS.—As part of that study, the Commis16 sion shall hold hearings and solicit testimony at those

17 hearings from boxers, managers, promoters, premium,

18 cable, and satellite program service providers, hotels, casi19 nos, resorts, and other commercial establishments that

20 host or sponsor professional boxing matches, and other in21 terested parties with respect to the definition of that term

22 as it is used in the Professional Boxing Safety Act.

23 (c) REPORT.—Not later than 12 months after the

24 date of the enactment of this Act, the Commission shall

25 submit to the Committee on Commerce, Science, and
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1 Transportation of the Senate and the Committee on En2 ergy and Commerce of the House of Representatives a re3 port on the study conducted under subsection (a). The re4 port shall—

5 (1) set forth a proposed definition of the term

6 ‘‘promoter’’ for purposes of the Professional Boxing

7 Safety Act; and

8 (2) describe the findings, conclusions, and ra9 tionale of the Commission for the proposed defini10 tion, together with any recommendations of the

11 Commission, based on the study.

12 SEC. 223. EFFECTIVE DATE.

13 (a) IN GENERAL.—Except as provided in subsection

14 (b), the amendments made by this title shall take effect

15 on the date of enactment of this Act.

16 (b) 1-YEAR DELAY FOR CERTAIN TITLE II PROVI17 SIONS.—Sections 205 through 212 of the Professional

18 Boxing Safety Act of 1996, as added by section 221(a)

19 of this title, shall take effect 1 year after the date of enact20 ment of this Act.

21 TITLE III—ARTISTS’ RIGHTS AND

22 THEFT PREVENTION

23 SEC. 301. SHORT TITLE.

24 This title may be cited as the ‘‘Artists’ Rights and

25 Theft Prevention Act of 2004’’ or the ‘‘ART Act’’.
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1 SEC. 302. 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.—Any person who, without the au10 thorization of the copyright owner, knowingly uses or at11 tempts to use an audiovisual recording device to transmit

12 or make a copy of a motion picture or other audiovisual

13 work protected under title 17, or any part thereof, from

14 a performance of such work in a motion picture exhibition

15 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 The possession by a person of an audiovisual recording

22 device in a motion picture exhibition facility may be con23 sidered as evidence in any proceeding to determine wheth24 er that person committed an offense under this subsection,

25 but shall not, by itself, be sufficient to support a conviction

26 of that person for such offense.
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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, or

7 parts thereof, and any audiovisual recording devices or

8 other equipment used in connection with the offense.

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

10 not prevent any lawfully authorized investigative, protec11 tive, or intelligence activity by an officer, agent, or em12 ployee of the United States, a State, or a political subdivi13 sion of a State, or a person acting under a contract with

14 the United States, a State, or a political subdivision of

15 a State.

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

17 cause, the owner or lessee of a facility where a motion

18 picture is being exhibited, the authorized agent or em19 ployee of such owner or lessee, the licensor of the motion

20 picture being exhibited, or the agent or employee of such

21 licensor—

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

23 for a reasonable time, any person suspected of a vio24 lation of this section for the purpose of questioning

25 or summoning a law enforcement officer; and
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1 ‘‘(2) shall not be held liable in any civil or

2 criminal action arising out of a detention under

3 paragraph (1).

4 ‘‘(e) VICTIM IMPACT STATEMENT.—

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

6 the presentence report under rule 32(c) of the Fed7 eral Rules of Criminal Procedure, victims of an of8 fense under this section shall be permitted to submit

9 to the probation officer a victim impact statement

10 that identifies the victim of the offense and the ex11 tent and scope of the injury and loss suffered by the

12 victim, including the estimated economic impact of

13 the offense on that victim.

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

15 submitted under this subsection shall include—

16 ‘‘(A) producers and sellers of legitimate

17 works affected by conduct involved in the of18 fense;

19 ‘‘(B) holders of intellectual property rights

20 in the works described in subparagraph (A);

21 and

22 ‘‘(C) the legal representatives of such pro23 ducers, sellers, and holders.
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1 ‘‘(f) STATE LAW NOT PREEMPTED.—Nothing in this

2 section may be construed to annul or limit any rights or

3 remedies under the laws of any State.

4 ‘‘(g) DEFINITIONS.—In this section, the following

5 definitions shall apply:

6 ‘‘(1) TITLE 17 DEFINITIONS.—The terms

7 ‘audiovisual work’, ‘copy’, ‘copyright owner’, ‘motion

8 picture’, ‘motion picture exhibition facility’, and

9 ‘transmit’ have, respectively, the meanings given

10 those terms in section 101 of title 17.

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

12 term ‘audiovisual recording device’ means a digital

13 or analog photographic or video camera, or any

14 other technology or device capable of enabling the

15 recording or transmission of a copyrighted motion

16 picture or other audiovisual work, or any part there17 of, regardless of whether audiovisual recording is the

18 sole or primary purpose of the device.’’.

19 (b) CLERICAL AMENDMENT.—The table of sections

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

21 Code, is amended by inserting after the item relating to

22 section 2319A the following:

‘‘2319B. Unauthorized recording of motion pictures in a motion picture exhibition facility.’’.
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1 (c) DEFINITION.—Section 101 of title 17, United

2 States Code, is amended by inserting after the definition

3 of ‘‘Motion pictures’’ the following:

4 ‘‘The term ‘motion picture exhibition facility’

5 means a movie theater, screening room, or other

6 venue that is being used primarily for the exhibition

7 of a copyrighted motion picture, if such exhibition is

8 open to the public or is made to an assembled group

9 of viewers outside of a normal circle of a family and

10 its social acquaintances.’’.

11 SEC. 303. CRIMINAL INFRINGEMENT OF A WORK BEING

12 PREPARED FOR COMMERCIAL DISTRIBU13 TION.

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

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

16 ‘‘(a) CRIMINAL INFRINGEMENT.—

17 ‘‘(1) IN GENERAL.—Any person who willfully

18 infringes a copyright shall be punished as provided

19 under section 2319 of title 18, if the infringement

20 was committed—

21 ‘‘(A) for purposes of commercial advantage

22 or private financial gain;

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

24 including by electronic means, during any 180–

25 day period, of 1 or more copies or phonorecords
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1 of 1 or more copyrighted works, which have a

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

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

4 prepared for commercial distribution, by mak5 ing it available on a computer network acces6 sible to members of the public, if such person

7 knew or should have known that the work was

8 intended for commercial distribution.

9 ‘‘(2) EVIDENCE.—For purposes of this sub10 section, evidence of reproduction or distribution of a

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

12 establish willful infringement of a copyright.

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

14 ‘work being prepared for commercial distribution’

15 means—

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

17 a motion picture or other audiovisual work, or

18 a sound recording, if at the time of unauthor19 ized distribution—

20 ‘‘(i) the copyright owner has a reason21 able expectation of commercial distribu22 tion; and

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

24 work have not been commercially distrib25 uted; or
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1 ‘‘(B) a motion picture, if at the time of un2 authorized distribution, the motion picture—

3 ‘‘(i) has been made available for view4 ing in a motion picture exhibition facility;

5 and

6 ‘‘(ii) has not been made available in

7 copies for sale to the general public in the

8 United States in a format intended to per9 mit viewing outside a motion picture exhi10 bition facility.’’.

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

12 United States Code, is amended—

13 (1) in subsection (a)—

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

15 ‘‘Any person who’’; and

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

17 and inserting ‘‘, (c), and (d)’’;

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

19 506(a)(1)’’ and inserting ‘‘section 506(a)(1)(A)’’;

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

21 506(a)(2) of title 17, United States Code’’ and in22 serting ‘‘section 506(a)(1)(B) of title 17’’;

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

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

25 (5) by adding after subsection (c) the following:
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1 ‘‘(d) Any person who commits an offense under sec2 tion 506(a)(1)(C) of title 17—

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

4 fined under this title, or both;

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

6 fined under this title, or both, if the offense was

7 committed for purposes of commercial advantage or

8 private financial gain;

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

10 fined under this title, or both, if the offense is a sec11 ond or subsequent offense; and

12 ‘‘(4) shall be imprisoned not more than 10

13 years, fined under this title, or both, if the offense

14 is a second or subsequent offense under paragraph

15 (2).’’; and

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

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

18 the end;

19 (B) in paragraph (2), by striking the pe20 riod at the end and inserting a semicolon; and

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

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

23 given the term in section 101 of title 17; and
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1 ‘‘(4) the term ‘work being prepared for com2 mercial distribution’ has the meaning given the term

3 in section 506(a) of title 17.’’.

4 SEC. 304. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK

5 BEING PREPARED FOR COMMERCIAL DIS6 TRIBUTION.

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

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

9 following:

10 ‘‘(f) PREREGISTRATION OF WORKS BEING PRE11 PARED FOR COMMERCIAL DISTRIBUTION.—

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

13 after the date of enactment of this subsection, the

14 Register of Copyrights shall issue regulations to es15 tablish procedures for preregistration of a work that

16 is being prepared for commercial distribution and

17 has not been published.

18 ‘‘(2) CLASS OF WORKS.—The regulations estab19 lished under paragraph (1) shall permit

20 preregistration for any work that is in a class of

21 works that the Register determines has had a his22 tory of infringement prior to authorized commercial

23 distribution.

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

25 later than 3 months after a the first publication of
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1 a work preregistered under this subsection, the ap2 plicant shall submit to the Copyright Office—

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

4 work;

5 ‘‘(B) a deposit; and

6 ‘‘(C) the applicable fee.

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

8 action under this chapter for infringement of a

9 preregistered work, in a case in which the infringe10 ment commenced no later than 2 months after the

11 first publication of the work shall be dismissed if the

12 items described in paragraph (3) are not submitted

13 to the Copyright Office in proper form within the

14 earlier of—

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

16 the work; or

17 ‘‘(B) 1 month after the copyright owner

18 has learned of the infringement.’’.

19 (b) INFRINGEMENT ACTIONS.—Section 411(a) of

20 title 17, United States Code, is amended by inserting

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

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

23 States Code, is amended by inserting ‘‘, an action for in24 fringement of the copyright of a work that has been

25 preregistered under section 408(f) before the commence-
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1 ment of the infringement and that has an effective date

2 of registration not later than the earlier of 3 months after

3 the first publication of the work or 1 month after the copy4 right owner has learned of the infringement,’’ after ‘‘sec5 tion 106A(a)’’.

6 SEC. 305. FEDERAL SENTENCING GUIDELINES.

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

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

9 States Sentencing Commission, pursuant to its authority

10 under section 994 of title 28, United States Code, and

11 in accordance with this section, shall review and, if appro12 priate, amend the Federal sentencing guidelines and policy

13 statements applicable to persons convicted of intellectual

14 property rights crimes, including any offense under—

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

16 United States Code; or

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

18 of title 18, United States Code.

19 (b) AUTHORIZATION.—The United States Sentencing

20 Commission may amend the Federal sentencing guidelines

21 in accordance with the procedures set forth in section

22 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 note)

23 as though the authority under that section had not ex24 pired.
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1 (c) RESPONSIBILITIES OF UNITED STATES SEN2 TENCING COMMISSION.—In carrying out this section, the

3 United States Sentencing Commission shall—

4 (1) take all appropriate measures to ensure that

5 the Federal sentencing guidelines and policy state6 ments described in subsection (a) are sufficiently

7 stringent to deter, and adequately reflect the nature

8 of, intellectual property rights crimes;

9 (2) determine whether to provide a sentencing

10 enhancement for those convicted of the offenses de11 scribed in subsection (a), if the conduct involves the

12 display, performance, publication, reproduction, or

13 distribution of a copyrighted work before it has been

14 authorized by the copyright owner, whether in the

15 media format used by the infringing party or in any

16 other media format;

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

18 set forth in application note 3 of section 2B5.3 of

19 the Federal sentencing guidelines is adequate to ad20 dress the loss attributable to people who broadly dis21 tribute copyrighted works without authorization over

22 the Internet; and

23 (4) determine whether the sentencing guidelines

24 and policy statements applicable to the offenses de25 scribed in subsection (a) adequately reflect any harm
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1 to victims from copyright infringement if law en2 forcement authorities cannot determine how many

3 times copyright material has been reproduced or dis4 tributed.

5 TITLE IV—EXEMPTION FROM IN6 FRINGEMENT FOR SKIPPING

7 AUDIO AND VIDEO CONTENT

8 IN MOTION PICTURES

9 SEC. 401. SHORT TITLE.

10 This title may be cited as the ‘‘Family Movie Act of

11 2004’’.

12 SEC. 402. EXEMPTION FROM INFRINGEMENT FOR SKIPPING

13 AUDIO AND VIDEO CONTENT IN MOTION PIC14 TURES.

15 (a) IN GENERAL.—Section 110 of title 17, United

16 States Code, is amended—

17 (1) in paragraph (9), by striking ‘‘and’’ after

18 the semicolon at the end;

19 (2) in paragraph (10), by striking the period at

20 the end and inserting ‘‘; and’’;

21 (3) by inserting after paragraph (10) the fol22 lowing:

23 ‘‘(11) the making imperceptible, by or at the di24 rection of a member of a private household, of lim25 ited portions of audio or video content of a motion
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1 picture, during a performance in or transmitted to

2 that household for private home viewing, from an

3 authorized copy of the motion picture, or the cre4 ation or provision of a computer program or other

5 technology that enables such making imperceptible

6 and that is designed and marketed for such use at

7 the direction of a member of a private household, if

8 no fixed copy of the altered version of the motion

9 picture is created by such computer program or

10 other technology.’’; and

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

12 ‘‘For purposes of paragraph (11), the term ‘making

13 imperceptible’ does not include the addition of audio or

14 video content that is performed or displayed over or in

15 place of existing content in a motion picture.

16 ‘‘Nothing in paragraph (11) shall be construed to

17 imply further rights under section 106 of this title, or to

18 have any effect on defenses or limitations on rights grant19 ed under any other section of this title or under any other

20 paragraph of this section.’’.

21 (c) EXEMPTION FROM TRADEMARK INFRINGE22 MENT.—Section 32 of the Trademark Act of 1946 (15

23 U.S.C. 1114) is amended by adding at the end the fol24 lowing:
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1 ‘‘(3)(A) Any person who engages in the conduct de2 scribed in paragraph (11) of section 110 of title 17,

3 United States Code, and who complies with the require4 ments set forth in that paragraph is not liable on account

5 of such conduct for a violation of any right under this Act.

6 This subparagraph does not preclude liability, nor shall

7 it be construed to restrict the defenses or limitations on

8 rights granted under this Act, of a person for conduct not

9 described in paragraph (11) of section 110 of title 17,

10 United States Code, even if that person also engages in

11 conduct described in paragraph (11) of section 110 of

12 such title.

13 ‘‘(B) A manufacturer, licensee, or licensor of tech14 nology that enables the making of limited portions of

15 audio or video content of a motion picture imperceptible

16 as described in subparagraph (A) is not liable on account

17 of such manufacture or license for a violation of any right

18 under this Act, if such manufacturer, licensee, or licensor

19 ensures that the technology provides a clear and con20 spicuous notice at the beginning of each performance that

21 the performance of the motion picture is altered from the

22 performance intended by the director or copyright holder

23 of the motion picture. The limitations on liability in sub24 paragraph (A) and this subparagraph shall not apply to
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1 a manufacturer, licensee, or licensor of technology that

2 fails to comply with this paragraph.

3 ‘‘(C) The requirement under subparagraph (B) to

4 provide notice shall apply only with respect to technology

5 manufactured after the end of the 180-day period begin6 ning on the date of the enactment of the Family Movie

7 Act of 2004.

8 ‘‘(D) Any failure by a manufacturer, licensee, or li9 censor of technology to qualify for the exemption under

10 subparagraphs (A) and (B) shall not be construed to cre11 ate an inference of liability for trademark infringement for

12 any such party that engages in conduct described in para13 graph (11) of section 110 of title 17, United States

14 Code.’’.

15 (d) DEFINITION.—In this section, the term ‘‘Trade16 mark Act of 1946’’ means the Act entitled ‘‘An Act to

17 provide for the registration and protection of trademarks

18 used in commerce, to carry out the provisions of certain

19 international conventions, and for other purposes’’, ap20 proved July 5, 1946 (15 U.S.C. 1051 et seq.).
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1 TITLE V—NATIONAL FILM

2 PRESERVATION

3 Subtitle A—Reauthorization of the

4 National Film Preservation Board

5 SEC. 501. SHORT TITLE.

6 This subtitle may be cited as the ‘‘National Film

7 Preservation Act of 2004’’.

8 SEC. 502. REAUTHORIZATION AND AMENDMENT.

9 (a) DUTIES OF THE LIBRARIAN OF CONGRESS.—Sec10 tion 103 of the National Film Preservation Act of 1996

11 (2 U.S.C. 179m) is amended—

12 (1) in subsection (b)—

13 (A) by striking ‘‘film copy’’ each place that

14 term appears and inserting ‘‘film or other ap15 proved copy’’;

16 (B) by striking ‘‘film copies’’ each place

17 that term appears and inserting ‘‘film or other

18 approved copies’’; and

19 (C) in the third sentence, by striking

20 ‘‘copyrighted’’ and inserting ‘‘copyrighted, mass

21 distributed, broadcast, or published’’; and

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

23 ‘‘(c) COORDINATION OF PROGRAM WITH OTHER

24 COLLECTION, PRESERVATION, AND ACCESSIBILITY AC25 TIVITIES.—In carrying out the comprehensive national
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1 film preservation program for motion pictures established

2 under the National Film Preservation Act of 1992, the

3 Librarian, in consultation with the Board established pur4 suant to section 104, shall—

5 ‘‘(1) carry out activities to make films included

6 in the National Film registry more broadly acces7 sible for research and educational purposes, and to

8 generate public awareness and support of the Reg9 istry and the comprehensive national film preserva10 tion program;

11 ‘‘(2) review the comprehensive national film

12 preservation plan, and amend it to the extent nec13 essary to ensure that it addresses technological ad14 vances in the preservation and storage of, and access

15 to film collections in multiple formats; and

16 ‘‘(3) wherever possible, undertake expanded ini17 tiatives to ensure the preservation of the moving

18 image heritage of the United States, including film,

19 videotape, television, and born digital moving image

20 formats, by supporting the work of the National

21 Audio-Visual Conservation Center of the Library of

22 Congress, and other appropriate nonprofit archival

23 and preservation organizations.’’.
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1 (b) NATIONAL FILM PRESERVATION BOARD.—Sec2 tion 104 of the National Film Preservation Act of 1996

3 (2 U.S.C. 179n) is amended—

4 (1) in subsection (a)(1) by striking ‘‘20’’ and

5 inserting ‘‘22’’;

6 (2) in subsection (a) (2) by striking ‘‘three’’

7 and inserting ‘‘5’’;

8 (3) in subsection (d) by striking ‘‘11’’ and in9 serting ‘‘12’’; and

10 (4) by striking subsection (e) and inserting the

11 following:

12 ‘‘(e) REIMBURSEMENT OF EXPENSES.—Members of

13 the Board shall serve without pay, but may receive travel

14 expenses, including per diem in lieu of subsistence, in ac15 cordance with sections 5702 and 5703 of title 5, United

16 States Code.’’.

17 (c) NATIONAL FILM REGISTRY.—Section 106 of the

18 National Film Preservation Act of 1996 (2 U.S.C. 179p)

19 is amended by adding at the end the following:

20 ‘‘(e) NATIONAL AUDIO-VISUAL CONSERVATION CEN21 TER.—The Librarian shall utilize the National Audio-Vis22 ual Conservation Center of the Library of Congress at

23 Culpeper, Virginia, to ensure that preserved films included

24 in the National Film Registry are stored in a proper man-
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1 ner, and disseminated to researchers, scholars, and the

2 public as may be appropriate in accordance with—

3 ‘‘(1) title 17, United States Code; and

4 ‘‘(2) the terms of any agreements between the

5 Librarian and persons who hold copyrights to such

6 audiovisual works.’’.

7 (d) USE OF SEAL.—Section 107 (a) of the National

8 Film Preservation Act of 1996 (2 U.S.C. 179q(a)) is

9 amended—

10 (1) in paragraph (1), by inserting ‘‘in any for11 mat’’ after ‘‘or any copy’’; and

12 (2) in paragraph (2), by striking ‘‘or film copy’’

13 and inserting ‘‘in any format’’.

14 (e) EFFECTIVE DATE.—Section 113 of the National

15 Film Preservation Act of 1996 (2 U.S.C. 179w) is amend16 ed by striking ‘‘7’’ and inserting ‘‘12’’.

17 Subtitle B—Reauthorization of the

18 National Film Preservation

19 Foundation

20 SEC. 611. SHORT TITLE.

21 This subtitle may be cited as the ‘‘National Film

22 Preservation Foundation Reauthorization Act of 2004’’.

23 SEC. 612. REAUTHORIZATION AND AMENDMENT.

24 (a) BOARD OF DIRECTORS.—Section 151703 of title

25 36, United States Code, is amended—
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1 (1) in subsection (b)(2)(A), by striking ‘‘nine’’

2 and inserting ‘‘12’’; and

3 (2) in subsection (b)(4), by striking the second

4 sentence and inserting ‘‘There shall be no limit to

5 the number of terms to which any individual may be

6 appointed.’’.

7 (b) POWERS.—Section 151705 of title 36, United

8 States Code, is amended in subsection (b) by striking

9 ‘‘District of Columbia’’ and inserting ‘‘the jurisdiction in

10 which the principal office of the corporation is located’’.

11 (c) PRINCIPAL OFFICE.—Section 151706 of title 36,

12 United States Code, is amended by inserting ‘‘, or another

13 place as determined by the board of directors’’ after ‘‘Dis14 trict of Columbia’’.

15 (d) AUTHORIZATION OF APPROPRIATIONS.—Section

16 151711 of title 36, United States Code, is amended by

17 striking subsections (a) and (b) and inserting the fol18 lowing:

19 ‘‘(a) AUTHORIZATION OF APPROPRIATIONS.—There

20 are authorized to be appropriated to the Library of Con21 gress amounts necessary to carry out this chapter, not to

22 exceed $530,000 for each of the fiscal years 2004 through

23 2008. These amounts are to be made available to the cor24 poration to match any private contributions (whether in
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1 currency, services, or property) made to the corporation

2 by private persons and State and local governments.

3 ‘‘(b) LIMITATION RELATED TO ADMINISTRATIVE EX4 PENSES.—Amounts authorized under this section may not

5 be used by the corporation for management and general

6 or fundraising expenses as reported to the Internal Rev7 enue Service as part of an annual information return re8 quired under the Internal Revenue Code of 1986.’’.

9 TITLE VII—PRESERVATION OF

10 ORPHAN WORKS

11 SEC. 701. SHORT TITLE.

12 This title may be cited as the ‘‘Preservation of Or13 phan Works Act’’.

14 SEC. 702. REPRODUCTION OF COPYRIGHTED WORKS BY LI15 BRARIES AND ARCHIVES.

16 Section 108(i) of title 17, United States Code, is

17 amended by striking ‘‘(b) and (c)’’ and inserting ‘‘(b), (c),

18 and (h)’’.
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1 TITLE VIII—ANTICOUNTERFEIT2 ING PROVISIONS AND FRAUD3 ULENT ONLINE IDENTITY

4 SANCTIONS

5 Subtitle A—Anticounterfeiting

6 Provisions

7 SEC. 801. SHORT TITLE.

8 This subtitle may be cited as the ‘‘Anticounterfeiting

9 Act of 2004’’.

10 SEC. 802. PROHIBITION AGAINST TRAFFICKING IN COUN11 TERFEIT COMPONENTS.

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

13 States Code, is amended—

14 (1) by striking the section heading and insert15 ing the following:

16 ‘‘§ 2318. Trafficking in counterfeit labels, illicit labels,

17 or counterfeit documentation or pack18 aging’’;

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

20 following:

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

22 in subsection (c), knowingly traffics in—

23 ‘‘(1) a counterfeit label or illicit label affixed to,

24 enclosing, or accompanying, or designed to be af25 fixed to, enclose, or accompany—
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1 ‘‘(A) a phonorecord;

2 ‘‘(B) a copy of a computer program;

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

4 audiovisual work;

5 ‘‘(D) a copy of a literary work;

6 ‘‘(E) a copy of a pictorial, graphic, or

7 sculptural work;

8 ‘‘(F) a work of visual art; or

9 ‘‘(G) documentation or packaging; or

10 ‘‘(2) counterfeit documentation or packaging,

11 shall be fined under this title or imprisoned for not more

12 than 5 years, or both.’’;

13 (3) in subsection (b)—

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

15 after the semicolon;

16 (B) in paragraph (3)—

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

18 have’’ and inserting the following: ‘‘ ‘audio19 visual work’, ‘literary work’, ‘pictorial,

20 graphic, or sculptural work’, ‘sound record21 ing’, ‘work of visual art’, and ‘copyright

22 owner’ have’’; and

23 (ii) by striking the period at the end

24 and inserting a semicolon; and

25 (C) by adding at the end the following:
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1 ‘‘(4) the term ‘illicit label’ means a genuine cer2 tificate, licensing document, registration card, or

3 similar labeling component—

4 ‘‘(A) that is used by the copyright owner

5 to verify that a phonorecord, a copy of a com6 puter program, a copy of a motion picture or

7 other audiovisual work, a copy of a literary

8 work, a copy of a pictorial, graphic, or sculp9 tural work, a work of visual art, or documenta10 tion or packaging is not counterfeit or infring11 ing of any copyright; and

12 ‘‘(B) that is, without the authorization of

13 the copyright owner—

14 ‘‘(i) distributed or intended for dis15 tribution not in connection with the copy,

16 phonorecord, or work of visual art to which

17 such labeling component was intended to

18 be affixed by the respective copyright

19 owner; or

20 ‘‘(ii) in connection with a genuine cer21 tificate or licensing document, knowingly

22 falsified in order to designate a higher

23 number of licensed users or copies than

24 authorized by the copyright owner, unless

25 that certificate or document is used by the
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1 copyright owner solely for the purpose of

2 monitoring or tracking the copyright own3 er’s distribution channel and not for the

4 purpose of verifying that a copy or phono5 record is noninfringing;

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

7 means documentation or packaging, in physical

8 form, for a phonorecord, copy of a computer pro9 gram, copy of a motion picture or other audiovisual

10 work, copy of a literary work, copy of a pictorial,

11 graphic, or sculptural work, or work of visual art;

12 and

13 ‘‘(6) the term ‘counterfeit documentation or

14 packaging’ means documentation or packaging that

15 appears to be genuine, but is not.’’;

16 (4) in subsection (c)—

17 (A) by striking paragraph (3) and insert18 ing the following:

19 ‘‘(3) the counterfeit label or illicit label is af20 fixed to, encloses, or accompanies, or is designed to

21 be affixed to, enclose, or accompany—

22 ‘‘(A) a phonorecord of a copyrighted sound

23 recording or copyrighted musical work;

24 ‘‘(B) a copy of a copyrighted computer

25 program;
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1 ‘‘(C) a copy of a copyrighted motion pic2 ture or other audiovisual work;

3 ‘‘(D) a copy of a literary work;

4 ‘‘(E) a copy of a pictorial, graphic, or

5 sculptural work;

6 ‘‘(F) a work of visual art; or

7 ‘‘(G) copyrighted documentation or pack8 aging; or’’; and

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

10 computer program’’; and

11 (5) in subsection (d)—

12 (A) by inserting ‘‘or illicit labels’’ after

13 ‘‘counterfeit labels’’ each place it appears; and

14 (B) by inserting before the period at the

15 end the following: ‘‘, and of any equipment, de16 vice, or material used to manufacture, repro17 duce, or assemble the counterfeit labels or illicit

18 labels’’.

19 (b) CIVIL REMEDIES.—Section 2318 of title 18,

20 United States Code, is further amended by adding at the

21 end the following:

22 ‘‘(f) CIVIL REMEDIES.—

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

24 is injured, or is threatened with injury, by a viola-
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1 tion of subsection (a) may bring a civil action in an

2 appropriate United States district court.

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

4 brought under paragraph (1), the court—

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

6 permanent injunctions on such terms as the

7 court determines to be reasonable to prevent or

8 restrain a violation of subsection (a);

9 ‘‘(B) at any time while the action is pend10 ing, may order the impounding, on such terms

11 as the court determines to be reasonable, of any

12 article that is in the custody or control of the

13 alleged violator and that the court has reason14 able cause to believe was involved in a violation

15 of subsection (a); and

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

17 ‘‘(i) reasonable attorney fees and

18 costs; and

19 ‘‘(ii)(I) actual damages and any addi20 tional profits of the violator, as provided in

21 paragraph (3); or

22 ‘‘(II) statutory damages, as provided

23 in paragraph (4).

24 ‘‘(3) ACTUAL DAMAGES AND PROFITS.—
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1 ‘‘(A) IN GENERAL.—The injured party is

2 entitled to recover—

3 ‘‘(i) the actual damages suffered by

4 the injured party as a result of a violation

5 of subsection (a), as provided in subpara6 graph (B) of this paragraph; and

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

8 are attributable to a violation of subsection

9 (a) and are not taken into account in com10 puting the actual damages.

11 ‘‘(B) CALCULATION OF DAMAGES.—The

12 court shall calculate actual damages by

13 multiplying—

14 ‘‘(i) the value of the phonorecords,

15 copies, or works of visual art which are, or

16 are intended to be, affixed with, enclosed

17 in, or accompanied by any counterfeit la18 bels, illicit labels, or counterfeit docu19 mentation or packaging, by

20 ‘‘(ii) the number of phonorecords, cop21 ies, or works of visual art which are, or are

22 intended to be, affixed with, enclosed in, or

23 accompanied by any counterfeit labels, il24 licit labels, or counterfeit documentation or

25 packaging.
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1 ‘‘(C) DEFINITION.—For purposes of this

2 paragraph, the ‘value’ of a phonorecord, copy,

3 or work of visual art is—

4 ‘‘(i) in the case of a copyrighted

5 sound recording or copyrighted musical

6 work, the retail value of an authorized pho7 norecord of that sound recording or musi8 cal work;

9 ‘‘(ii) in the case of a copyrighted com10 puter program, the retail value of an au11 thorized copy of that computer program;

12 ‘‘(iii) in the case of a copyrighted mo13 tion picture or other audiovisual work, the

14 retail value of an authorized copy of that

15 motion picture or audiovisual work;

16 ‘‘(iv) in the case of a copyrighted lit17 erary work, the retail value of an author18 ized copy of that literary work;

19 ‘‘(v) in the case of a pictorial, graphic,

20 or sculptural work, the retail value of an

21 authorized copy of that work; and

22 ‘‘(vi) in the case of a work of visual

23 art, the retail value of that work.

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

25 may elect, at any time before final judgment is ren-
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1 dered, to recover, instead of actual damages and

2 profits, an award of statutory damages for each vio3 lation of subsection (a) in a sum of not less than

4 $2,500 or more than $25,000, as the court considers

5 appropriate.

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

7 increase an award of damages under this subsection

8 by 3 times the amount that would otherwise be

9 awarded, as the court considers appropriate, if the

10 court finds that a person has subsequently violated

11 subsection (a) within 3 years after a final judgment

12 was entered against that person for a violation of

13 that subsection.

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

15 may not be commenced under this subsection unless

16 it is commenced within 3 years after the date on

17 which the claimant discovers the violation of sub18 section (a).’’.

19 (c) CONFORMING AMENDMENT.—The item relating

20 to section 2318 in the table of sections for chapter 113

21 of title 18, United States Code, is amended to read as

22 follows:

‘‘2318. Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging.’’.
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1 SEC. 803. OTHER RIGHTS NOT AFFECTED.

2 (a) CHAPTERS 5 AND 12 OF TITLE 17; ELECTRONIC

3 TRANSMISSIONS.—The amendments made by this

4 subtitle—

5 (1) shall not enlarge, diminish, or otherwise af6 fect any liability or limitations on liability under sec7 tions 512, 1201, or 1202 of title 17, United States

8 Code; and

9 (2) shall not be construed to apply—

10 (A) in any case, to the electronic trans11 mission of a genuine certificate, licensing docu12 ment, registration card, similar labeling compo13 nent, or documentation or packaging described

14 in paragraph (4) or (5) of section 2318(b) of

15 title 18, United States Code, as amended by

16 this subtitle; and

17 (B) in the case of a civil action under sec18 tion 2318(f) of title 18, United States Code, to

19 the electronic transmission of a counterfeit label

20 or counterfeit documentation or packaging de21 fined in paragraph (1) or (6) of section 2318(b)

22 of title 18, United States Code.

23 (b) FAIR USE.—The amendments made by this sub24 title shall not affect the fair use, under section 107 of title

25 17, United States Code, of a genuine certificate, licensing

26 document, registration card, similar labeling component,
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1 or documentation or packaging described in paragraph (4)

2 or (5) of section 2318(b) of title 18, United States Code,

3 as amended by this subtitle.

4 Subtitle B—Fraudulent Online

5 Identity Sanctions

6 SEC. 811. SHORT TITLE.

7 This subtitle may be cited as the ‘‘Fraudulent Online

8 Identity Sanctions Act’’.

9 SEC. 812. AMENDMENT TO TRADEMARK ACT OF 1946.

10 Section 35 of the Act entitled ‘‘An Act to provide for

11 the registration and protection of trademarks used in com12 merce, to carry out the provisions of certain international

13 conventions, and for other purposes’’, approved July 5,

14 1946 (commonly referred to as the ‘‘Trademark Act of

15 1946’’; 15 U.S.C. 1117), is amended by adding at the end

16 the following new subsection:

17 ‘‘(e) In the case of a violation referred to in this sec18 tion, it shall be a rebuttable presumption that the violation

19 is willful for purposes of determining relief if the violator,

20 or a person acting in concert with the violator, knowingly

21 provided or knowingly caused to be provided materially

22 false contact information to a domain name registrar, do23 main name registry, or other domain name registration

24 authority in registering, maintaining, or renewing a do25 main name used in connection with the violation. Nothing
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1 in this subsection limits what may be considered a willful

2 violation under this section.’’.

3 SEC. 813. AMENDMENT TO TITLE 17, UNITED STATES CODE.

4 Section 504(c) of title 17, United States Code, is

5 amended by adding at the end the following new para6 graph:

7 ‘‘(3) (A) In a case of infringement, it shall be

8 a rebuttable presumption that the infringement was

9 committed willfully for purposes of determining re10 lief if the violator, or a person acting in concert with

11 the violator, knowingly provided or knowingly caused

12 to be provided materially false contact information

13 to a domain name registrar, domain name registry,

14 or other domain name registration authority in reg15 istering, maintaining, or renewing a domain name

16 used in connection with the infringement.

17 ‘‘(B) Nothing in this paragraph limits what

18 may be considered willful infringement under this

19 subsection.

20 ‘‘(C) For purposes of this paragraph, the term

21 ‘domain name’ has the meaning given that term in

22 section 45 of the Act entitled ‘An Act to provide for

23 the registration and protection of trademarks used

24 in commerce, to carry out the provisions of certain

25 international conventions, and for other purposes’
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1 approved July 5, 1946 (commonly referred to as the

2 ‘Trademark Act of 1946’; 15 U.S.C. 1127).’’.

3 SEC. 814. AMENDMENT TO TITLE 18, UNITED STATES CODE.

4 (a) SENTENCING ENHANCEMENT.—Section 3559 of

5 title 18, United States Code, is amended by adding at the

6 end the following:

7 ‘‘(f)(1) If a defendant who is convicted of a felony

8 offense (other than offense of which an element is the false

9 registration of a domain name) knowingly falsely reg10 istered a domain name and knowingly used that domain

11 name in the course of that offense, the maximum impris12 onment otherwise provided by law for that offense shall

13 be doubled or increased by 7 years, whichever is less.

14 ‘‘(2) As used in this subsection—

15 ‘‘(A) the term ‘falsely registers’ means registers

16 in a manner that prevents the effective identification

17 of or contact with the person who registers; and

18 ‘‘(B) the term ‘domain name’ has the meaning

19 given that term in section 45 of the Act entitled ‘An

20 Act to provide for the registration and protection of

21 trademarks used in commerce, to carry out the pro22 visions of certain international conventions, and for

23 other purposes’ approved July 5, 1946 (commonly

24 referred to as the ‘Trademark Act of 1946’) (15

25 U.S.C. 1127).’’.
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1 (b) UNITED STATES SENTENCING COMMISSION.—

2 (1) DIRECTIVE.—Pursuant to its authority

3 under section 994(p) of title 28, United States Code,

4 and in accordance with this section, the United

5 States Sentencing Commission shall review and

6 amend the sentencing guidelines and policy state7 ments to ensure that the applicable guideline range

8 for a defendant convicted of any felony offense car9 ried out online that may be facilitated through the

10 use of a domain name registered with materially

11 false contact information is sufficiently stringent to

12 deter commission of such acts.

13 (2) REQUIREMENTS.—In carrying out this sub14 section, the Sentencing Commission shall provide

15 sentencing enhancements for anyone convicted of

16 any felony offense furthered through knowingly pro17 viding or knowingly causing to be provided materi18 ally false contact information to a domain name reg19 istrar, domain name registry, or other domain name

20 registration authority in registering, maintaining, or

21 renewing a domain name used in connection with the

22 violation.

23 (3) DEFINITION.—For purposes of this sub24 section, the term ‘‘domain name’’ has the meaning

25 given that term in section 45 of the Act entitled ‘‘An
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1 Act to provide for the registration and protection of

2 trademarks used in commerce, to carry out the pro3 visions of certain international conventions, and for

4 other purposes’’, approved July 5, 1946 (commonly

5 referred to as the ‘‘Trademark Act of 1946’’; 15

6 U.S.C. 1127).

7 SEC. 815. CONSTRUCTION.

8 (a) FREE SPEECH AND PRESS.—Nothing in this sub9 title shall enlarge or diminish any rights of free speech

10 or of the press for activities related to the registration or

11 use of domain names.

12 (b) DISCRETION OF COURTS IN DETERMINING RE13 LIEF.—Nothing in this subtitle shall restrict the discretion

14 of a court in determining damages or other relief to be

15 assessed against a person found liable for the infringement

16 of intellectual property rights.

17 (c) DISCRETION OF COURTS IN DETERMINING

18 TERMS OF IMPRISONMENT.—Nothing in this subtitle shall

19 be construed to limit the discretion of a court to determine

20 the appropriate term of imprisonment for an offense under

21 applicable law.
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1 TITLE IX—COOPERATIVE RE2 SEARCH AND TECHNOLOGY

3 ENHANCEMENT

4 SEC. 901. SHORT TITLE.

5 This title may be cited as the ‘‘Cooperative Research

6 and Technology Enhancement (CREATE) Act of 2004’’.

7 SEC. 902. COLLABORATIVE EFFORTS ON CLAIMED INVEN8 TIONS.

9 Section 103(c) of title 35, United States Code, is

10 amended to read as follows:

11 ‘‘(c)(1) Subject matter developed by another person,

12 which qualifies as prior art only under one or more of sub13 sections (e), (f), and (g) of section 102 of this title, shall

14 not preclude patentability under this section where the

15 subject matter and the claimed invention were, at the time

16 the claimed invention was made, owned by the same per17 son or subject to an obligation of assignment to the same

18 person.

19 ‘‘(2) For purposes of this subsection, subject matter

20 developed by another person and a claimed invention shall

21 be deemed to have been owned by the same person or sub22 ject to an obligation of assignment to the same person if—

23 ‘‘(A) the claimed invention was made by or on

24 behalf of parties to a joint research agreement that
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1 was in effect on or before the date the claimed in2 vention was made;

3 ‘‘(B) the claimed invention was made as a re4 sult of activities undertaken within the scope of the

5 joint research agreement; and

6 ‘‘(C) the application for patent for the claimed

7 invention discloses or is amended to disclose the

8 names of the parties to the joint research agree9 ment.

10 ‘‘(3) For purposes of paragraph (2), the term ‘joint

11 research agreement’ means a written contract, grant, or

12 cooperative agreement entered into by two or more per13 sons or entities for the performance of experimental, devel14 opmental, or research work in the field of the claimed in15 vention.’’.

16 SEC. 903. EFFECTIVE DATE.

17 (a) IN GENERAL.—The amendments made by this

18 title shall apply to any patent granted on or after the date

19 of the enactment of this Act.

20 (b) SPECIAL RULE.—The amendments made by this

21 title shall not affect any final decision of a court or the

22 United States Patent and Trademark Office rendered be23 fore the date of the enactment of this Act, and shall not

24 affect the right of any party in any action pending before

25 the United States Patent and Trademark Office or a court
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1 on the date of the enactment of this Act to have that par2 ty’s rights determined on the basis of the provisions of

3 title 35, United States Code, in effect on the day before

4 the date of the enactment of this Act.

Passed the Senate December 8, 2004.

Attest:

Secretary.

108TH CONGRESS

2D SESSION S. 2603

AN ACT

To amend section 227 of the Communications Act

tion on junk fax transmissions.of 1934 (47 U.S.C. 227) relating to the prohibi-