108TH CONGRESS

2D SESSION H. R. 4077

AN ACT

To enhance criminal enforcement of the copyright

purposes.of copyright law to the Internet, and for otherlaws, to educate the public about the application

108TH CONGRESS

2D SESSION H. R. 4077

AN ACT

To enhance criminal enforcement of the copyright laws, to

educate the public about the application of copyright

law to the Internet, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 TITLE I—PIRACY DETERRENCE

2 IN EDUCATION

3 SEC. 101. SHORT TITLE.

4 This title may be cited as the ‘‘Piracy Deterrence and

5 Education Act of 2004’’.

6 SEC. 102. FINDINGS.

7 The Congress finds as follows:

8 (1) The Internet, while changing the way our

9 society communicates, has also changed the nature

10 of many crimes, including the theft of intellectual

11 property.

12 (2) Trafficking in infringing copyrighted works

13 through increasingly sophisticated electronic means,

14 including peer-to-peer file trading networks, Internet

15 chat rooms, and news groups, threatens lost jobs,

16 lost income for creators, lower tax revenue, and

17 higher prices for honest purchasers.

18 (3) The most popular peer-to-peer file trading

19 software programs have been downloaded by com20 puter users over 600,000,000 times. At any one time

21 there are over 3,000,000 users simultaneously using

22 just one of these services. Each month, on average,

23 over 2,300,000,000 digital-media files are trans24 ferred among users of peer-to-peer systems.
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1 (4) Many computer users simply believe that

2 they will not be caught or prosecuted for their con3 duct.

4 (5) The security and privacy threats posed by

5 certain peer-to-peer networks extend beyond users

6 inadvertently enabling a hacker to access files. Mil7 lions of copies of one of the most popular peer-to8 peer networks contain software that could allow an

9 independent company to take over portions of users’

10 computers and Internet connections and has the ca11 pacity to keep track of users’ online habits.

12 (6) In light of these considerations, Federal law

13 enforcement agencies should actively pursue crimi14 nals who steal the copyrighted works of others, and

15 prevent such activity through enforcement and

16 awareness. The public should be educated about the

17 security and privacy risks associated with being con18 nected to certain peer-to-peer networks.

19 SEC. 103. VOLUNTARY PROGRAM OF DEPARTMENT OF JUS20 TICE.

21 (a) VOLUNTARY PROGRAM.—The Attorney General is

22 authorized to establish a program under which the De23 partment of Justice, in cases where persons who are sub24 scribers of Internet service providers appear to the De25 partment of Justice to be engaging in copyright infringing
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1 conduct in the course of using such Internet service, would

2 send to the Internet service providers warning letters that

3 warn such persons of the penalties for such copyright in4 fringement. The Internet service providers may forward

5 the warning letters to such persons.

6 (b) LIMITATIONS ON PROGRAM.—

7 (1) EXTENT AND LENGTH OF PROGRAM.—The

8 program under subsection (a) shall terminate at the

9 end of the 18-month period beginning on the date of

10 the enactment of this Act and shall be limited to not

11 more than 10,000 warning letters.

12 (2) PRIVACY PROTECTIONS.—No Internet serv13 ice provider that receives a warning letter from the

14 Department of Justice under subsection (a) may dis15 close to the Department any identifying information

16 about the subscriber that is the subject of the warn17 ing letter except pursuant to court order or other

18 applicable legal process that requires such disclo19 sure.

20 (c) REIMBURSEMENT OF INTERNET SERVICE PRO21 VIDERS.—The Department of Justice shall reimburse

22 Internet service providers for all reasonable direct costs

23 incurred by such service providers in identifying the prop24 er recipients of the warning letters under subsection (a)

25 and forwarding the letters.
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1 (d) REPORTS TO CONGRESS.—The Attorney General

2 shall submit to the Congress a report on the program es3 tablished under subsection (a) both at the time the pro4 gram is initiated and at the conclusion of the program.

5 (e) INADMISSIBILITY OF EVIDENCE.—The fact that

6 an Internet service provider participated in the program

7 under subsection (a), received a warning letter from the

8 Department of Justice, was aware of the contents of the

9 warning letter, or forwarded the warning letter to a sub10 scriber, shall not be admissible in any legal proceeding

11 brought against the Internet service provider.

12 (f) CONSTRUCTION.—Nothing in this section shall be

13 construed to affect the ability of a court to consider, in

14 a legal proceeding brought against an Internet service pro15 vider, notifications of claimed infringement as described

16 in section 512(c)(3) of title 17, United States Code, or

17 any other relevant evidence, other than that described in

18 subsection (e).

19 SEC. 104. DESIGNATION AND TRAINING OF AGENTS IN COM20 PUTER HACKING AND INTELLECTUAL PROP21 ERTY UNITS.

22 (a) DESIGNATION OF AGENTS IN CHIPS UNITS.—

23 The Attorney General shall ensure that any unit in the

24 Department of Justice responsible for investigating com25 puter hacking or responsible for investigating intellectual
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1 property crimes is assigned at least one agent to support

2 such unit for the purpose of investigating crimes relating

3 to the theft of intellectual property.

4 (b) TRAINING.—The Attorney General shall ensure

5 that each agent assigned under subsection (a) has received

6 training in the investigation and enforcement of intellec7 tual property crimes.

8 SEC. 105. EDUCATION PROGRAM.

9 (a) ESTABLISHMENT.—There shall be established

10 within the Office of the Associate Attorney General of the

11 United States an Internet Use Education Program.

12 (b) PURPOSE.—The purpose of the Internet Use

13 Education Program shall be to—

14 (1) educate the general public concerning the

15 value of copyrighted works and the effects of the

16 theft of such works on those who create them; and

17 (2) educate the general public concerning the

18 privacy, security, and other risks of using the Inter19 net to obtain illegal copies of copyrighted works.

20 (c) SECTOR SPECIFIC MATERIALS.—The Internet

21 Use Educational Program shall, to the extent appropriate,

22 develop materials appropriate to Internet users in dif23 ferent sectors of the general public where criminal copy24 right infringement is a concern. The Attorney General
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1 shall consult with appropriate interested parties in devel2 oping such sector-specific materials.

3 (d) CONSULTATIONS.—The Attorney General shall

4 consult with the Register of Copyrights and the Secretary

5 of Commerce in developing the Internet Use Education

6 Program under this section.

7 (e) PROHIBITION ON USE OF CERTAIN FUNDS.—The

8 program created under this section shall not use funds or

9 resources of the Department of Justice allocated for crimi10 nal investigation or prosecution.

11 (f) ADDITIONAL PROHIBITION ON THE USE OF

12 FUNDS.—The program created under this section shall

13 not use any funds or resources of the Department of Jus14 tice allocated for the Civil Rights Division of the Depart15 ment, including any funds allocated for the enforcement

16 of civil rights or the Voting Rights Act of 1965.

17 SEC. 106. ACTIONS BY THE GOVERNMENT OF THE UNITED

18 STATES.

19 Section 411(a) of title 17, United States Code, is

20 amended in the first sentence by striking ‘‘Except for’’

21 and inserting ‘‘Except for an action brought by the Gov22 ernment of the United States or by any agency or instru23 mentality thereof, or’’ .
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1 SEC. 107. AUTHORIZED APPROPRIATIONS.

2 There are authorized to be appropriated to the De3 partment of Justice for fiscal year 2005 not less than

4 $15,000,000 for the investigation and prosecution of viola5 tions of title 17, United States Code.

6 SEC. 108. CRIMINAL PENALTIES FOR UNAUTHORIZED RE7 CORDING OF MOTION PICTURES IN A MO8 TION PICTURE EXHIBITION FACILITY.

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

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

11 the following new section:

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

13 in a motion picture exhibition facility

14 ‘‘(a) OFFENSE.—Any person who, without the au15 thorization of the copyright owner, knowingly uses or at16 tempts to use an audiovisual recording device to transmit

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

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

19 a performance of such work in a motion picture exhibition

20 facility, shall—

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

22 fined under this title, or both; or

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

25 under this title, or both.
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1 The possession by a person of an audiovisual recording

2 device in a motion picture exhibition facility may be con3 sidered as evidence in any proceeding to determine wheth4 er that person committed an offense under this subsection,

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

6 of that person for such offense.

7 ‘‘(b) FORFEITURE AND DESTRUCTION.—When a per8 son is convicted of an offense under subsection (a), the

9 court in its judgment of conviction shall, in addition to

10 any penalty provided, order the forfeiture and destruction

11 or other disposition of all unauthorized copies of motion

12 pictures or other audiovisual works protected under title

13 17, or parts thereof, and any audiovisual recording devices

14 or other equipment used in connection with the offense.

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

16 not prevent any lawfully authorized investigative, protec17 tive, or intelligence activity by an officer, agent, or em18 ployee of the United States, a State, or a political subdivi19 sion of a State, or by a person acting under a contract

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

21 of a State.

22 ‘‘(d) IMMUNITY FOR THEATERS AND AUTHORIZED

23 PERSONS.—With reasonable cause, the owner or lessee of

24 a motion picture facility where a motion picture is being

25 exhibited, the authorized agent or employee of such owner
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1 or lessee, the licensor of the motion picture being exhib2 ited, or the agent or employee of such licensor—

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

4 for a reasonable time, any person suspected of com5 mitting an offense under this section for the purpose

6 of questioning that person or summoning a law en7 forcement officer; and

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

9 criminal action by reason of a detention under para10 graph (1).

11 ‘‘(e) VICTIM IMPACT STATEMENT.—

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

13 the presentence report under rule 32(c) of the Fed14 eral Rules of Criminal Procedure, victims of an of15 fense under this section shall be permitted to submit

16 to the probation officer a victim impact statement

17 that identifies the victim of the offense and the ex18 tent and scope of the injury and loss suffered by the

19 victim, including the estimated economic impact of

20 the offense on that victim.

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

22 submitted under this subsection shall include—

23 ‘‘(A) producers and sellers of legitimate

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

2 in the works described in subparagraph (A);

3 and

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

6 ‘‘(f) DEFINITIONS.—In this section:

7 ‘‘(1) AUDIOVISUAL WORK, COPY, ETC.—The

8 terms ‘audiovisual work’, ‘copy’, ‘copyright owner’,

9 ‘motion picture’, and ‘transmit’ have, respectively,

10 the meanings given those terms in section 101 of

11 title 17.

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

13 term ‘audiovisual recording device’ means a digital

14 or analog photographic or video camera, or any

15 other technology or device capable of enabling the

16 recording or transmission of a copyrighted motion

17 picture or other audiovisual work, or any part there18 of, regardless of whether audiovisual recording is the

19 sole or primary purpose of the device.

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

21 The term ‘motion picture exhibition facility’ means

22 a movie theater, screening room, or other venue that

23 is being used primarily for the exhibition of a copy24 righted motion picture, if such exhibition is open to

25 the public or is made to an assembled group of view-
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1 ers outside of a normal circle of a family and its so2 cial acquaintances.

3 ‘‘(g) STATE LAW NOT PREEMPTED.—Nothing in this

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

5 remedies under the laws of any State.’’.

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

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

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

9 section 2319A the following:

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

10 SEC. 109. SENSE OF THE CONGRESS ON NEED TO TAKE

11 STEPS TO PREVENT ILLEGAL ACTIVITY ON

12 PEER-TO-PEER SERVICES.

13 (a) FINDINGS.—The Congress finds as follows:

14 (1) The most popular publicly accessible peer15 to-peer file sharing software programs combined

16 have been downloaded worldwide over 600,000,000

17 times.

18 (2) The vast majority of software products, in19 cluding peer-to-peer technology, do not pose an in20 herent risk. Responsible persons making software

21 products should be encouraged and commended for

22 the due diligence and reasonable care they take in23 cluding by providing instructions, relevant informa24 tion in the documentation, disseminating patches,
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1 updates, and other appropriate modifications to the

2 software.

3 (3) Massive volumes of illegal activity, including

4 the distribution of child pornography, viruses, and

5 confidential personal information, and copyright in6 fringement occur on publicly accessible peer-to-peer

7 file sharing services every day. Some publicly acces8 sible peer-to-peer file sharing services expose con9 sumers, particularly children, to serious risks, in10 cluding legal liability, loss of privacy, threats to com11 puter security, and exposure to illegal and inappro12 priate material.

13 (4) Several studies and reports demonstrate

14 that pornography, including child pornography, is

15 prevalent on publicly available peer-to-peer file shar16 ing services, and children are regularly exposed to

17 pornography when using such peer-to-peer file shar18 ing services.

19 (5) The full potential of peer-to-peer technology

20 to benefit consumers has yet to be realized and will

21 not be achieved until these problems are adequately

22 addressed.

23 (6) To date, the businesses that run publicly ac24 cessible file-sharing services have refused or failed to

25 voluntarily and sufficiently address these problems.
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1 (7) Many users of publicly available peer-to2 peer file-sharing services are drawn to these systems

3 by the lure of obtaining ‘‘free’’ music and movies.

4 (8) While some users use parental controls to

5 protect children from pornography available on the

6 Internet and search engines, not all such controls

7 work on publicly accessible peer-to-peer networks.

8 (9) Businesses that run publicly accessible peer9 to-peer file sharing services have openly acknowl10 edged, and numerous studies and reports have estab11 lished, that these services facilitate and profit from

12 massive amounts of copyright infringement, causing

13 enormous damage to the economic well-being of the

14 copyright industries whose works are being illegally

15 ‘‘shared’’ and downloaded.

16 (10) The legitimate digital music marketplace

17 offers consumers a wide and growing array of

18 choices for obtaining music legally, without exposure

19 to the risks posed by publicly accessible peer-to-peer

20 file sharing services.

21 (11) The Federal Trade Commission issued a

22 Consumer Alert in July of 2003 warning consumers

23 that some file-sharing services contain damaging vi24 ruses and worms and, without the computer user’s

25 knowledge or consent, install spyware to monitor a
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1 user’s browsing habits and send data to third parties

2 or automatically open network connections.

3 (12) Publicly available peer-to-peer file-sharing

4 services can and should adopt reasonable business

5 practices and use technology in the marketplace to

6 address the existing risks posed to consumers by

7 their services and facilitate the legitimate use of

8 peer-to-peer file sharing technology and software.

9 (b) SENSE OF CONGRESS.—It is the sense of the

10 Congress that—

11 (1) responsible software developers should be

12 commended, recognized, and encouraged for their ef13 forts to protect consumers;

14 (2) currently the level of ongoing and persistent

15 illegal and dangerous activity on publicly accessible

16 peer-to-peer file sharing services is harmful to con17 sumers, minors, and the economy; and

18 (3) therefore, the Congress and the executive

19 branch should consider all appropriate measures to

20 protect consumers and children, and prevent such il21 legal activity.

22 SEC. 110. ENHANCEMENT OF CRIMINAL COPYRIGHT IN23 FRINGEMENT.

24 (a) CRIMINAL INFRINGEMENT.—Section 506 of title

25 17, United States Code, is amended—
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1 (1) by amending subsection (a) to read as fol2 lows:

3 ‘‘(a) CRIMINAL INFRINGEMENT.—Any person who—

4 ‘‘(1) infringes a copyright willfully and for pur5 poses of commercial advantage or private financial

6 gain,

7 ‘‘(2) infringes a copyright willfully by the repro8 duction or distribution, including by the offering for

9 distribution to the public by electronic means, during

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

11 phonorecords of 1 or more copyrighted works, which

12 have a total retail value of more than $1,000, or

13 ‘‘(3) infringes a copyright by the knowing dis14 tribution, including by the offering for distribution

15 to the public by electronic means, with reckless dis16 regard of the risk of further infringement, during

17 any 180-day period, of—

18 ‘‘(A) 1,000 or more copies or phonorecords

19 of 1 or more copyrighted works,

20 ‘‘(B) 1 or more copies or phonorecords of

21 1 or more copyrighted works with a total retail

22 value of more than $10,000, or

23 ‘‘(C) 1 or more copies or phonorecords of

24 1 or more copyrighted pre-release works,
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1 shall be punished as provided under section 2319 of title

2 18. For purposes of this subsection, evidence of reproduc3 tion or distribution of a copyrighted work, by itself, shall

4 not be sufficient to establish the necessary level of intent

5 under this subsection.’’; and

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

7 ‘‘(g) LIMITATION ON LIABILITY OF SERVICE PRO8 VIDERS.—No legal entity shall be liable for a violation of

9 subsection (a)(3) by reason of performing any function de10 scribed in subsection (a), (b), (c), or (d) of section 512

11 if such legal entity would not be liable for monetary relief

12 under section 512 by reason of performing such function.

13 Except for purposes of determining whether an entity

14 qualifies for the limitation on liability under subsection

15 (a)(3) of this section, the legal conclusion of whether an

16 entity qualifies for a limitation on liability under section

17 512 shall not be considered in a judicial determination of

18 whether the entity violates subsection (a) of this section.

19 ‘‘(h) DEFINITIONS.—In this section:

20 ‘‘(1) PRE-RELEASE WORK.—The term ‘pre-re21 lease work’ refers to a work protected under this

22 title which has a commercial and economic value and

23 which, at the time of the act of infringement that is

24 the basis for the offense under subsection (a)(3), the

25 defendant knew or should have known had not yet
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1 been made available by the copyright owner to indi2 vidual members of the general public in copies or

3 phonorecords for sale, license, or rental.

4 ‘‘(2) RETAIL VALUE.—The ‘retail value’ of a

5 copyrighted work is the retail price of that work in

6 the market in which it is sold. In the case of an in7 fringement of a copyright by distribution, if the re8 tail price does not adequately reflect the economic

9 value of the infringement, then the retail value may

10 be determined using other factors, including but not

11 limited to suggested retail price, wholesale price, re12 placement cost of the item, licensing, or distribution13 related fees.’’.

14 (b) PENALTIES.—Section 2319 of title 18, United

15 States Code, is amended—

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

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

18 (2) by inserting after subsection (c) the fol19 lowing:

20 ‘‘(d) Any person who commits an offense under sec21 tion 506(a)(3) of title 17—

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

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

24 or, if the offense was committed for purposes of

25 commercial advantage or private financial gain, im-
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1 prisoned for not more than 5 years, or fined in the

2 amount set forth in this title, or both; and

3 ‘‘(2) shall, if the offense is a second or subse4 quent offense under paragraph (1), be imprisoned

5 not more than 6 years, or fined in the amount set

6 forth in this title, or both, or, if the offense was

7 committed for purposes of commercial advantage or

8 private financial gain, imprisoned for not more than

9 10 years, or fined in the amount set forth in this

10 title, or both.’’; and

11 (3) in subsection (f), as so redesignated—

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

13 after the semicolon;

14 (B) in paragraph (2), by striking the pe15 riod and inserting ‘‘; and’’; and

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

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

18 given that term in section 101 (relating to defini19 tions) of title 17.’’.

20 (c) CIVIL REMEDIES FOR INFRINGEMENT OF A COM21 MERCIAL PRE-RELEASE COPYRIGHTED WORK.—Section

22 504(b) of title 17, United States Code, is amended—

23 (1) by striking ‘‘The copyright owner’’ and in24 serting the following:

25 ‘‘(1) IN GENERAL.—The copyright owner’’; and
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1 (2) by adding at the end the following:

2 ‘‘(2) DAMAGES FOR PRE-RELEASE INFRINGE3 MENT.—

4 ‘‘(A) IN GENERAL.—In the case of any

5 pre-release work, actual damages shall be pre6 sumed conclusively to be no less than $10,000

7 per infringement, if a person—

8 ‘‘(i) distributes such work by making

9 it available on a computer network acces10 sible to members of the public; and

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

12 the work was intended for commercial dis13 tribution.

14 ‘‘(B) DEFINITION.—For purposes of this

15 subsection, the term ‘pre-release work’ has the

16 meaning given that term in section 506(h).’’.

17 SEC. 111. AMENDMENT OF FEDERAL SENTENCING GUIDE18 LINES REGARDING THE INFRINGEMENT OF

19 COPYRIGHTED WORKS AND RELATED

20 CRIMES.

21 (a) AMENDMENT TO THE SENTENCING GUIDE22 LINES.—Pursuant to its authority under section 994 of

23 title 28, United States Code, and in accordance with this

24 section, the United States Sentencing Commission shall

25 review and, if appropriate, amend the sentencing guide-
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1 lines and policy statements applicable to persons convicted

2 of intellectual property rights crimes, including sections

3 2318, 2319, 2319A, 2319B, 2320 of title 18, United

4 States Code, and sections 506, 1201, and 1202 of title

5 17, United States Code.

6 (b) FACTORS.—In carrying out this section, the Sen7 tencing Commission shall—

8 (1) take all appropriate measures to ensure that

9 the sentencing guidelines and policy statements ap10 plicable to the offenses described in subsection (a)

11 are sufficiently stringent to deter and adequately re12 flect the nature of such offenses;

13 (2) consider whether to provide a sentencing en14 hancement for those convicted of the offenses de15 scribed in subsection (a) when the conduct involves

16 the display, performance, publication, reproduction,

17 or distribution of a copyrighted work before the time

18 when the copyright owner has authorized the dis19 play, performance, publication, reproduction, or dis20 tribution of the original work, whether in the media

21 format used by the infringing good or in any other

22 media format;

23 (3) consider whether the definition of

24 ‘‘uploading’’ contained in Application Note 3 to

25 Guideline 2B5.3 is adequate to address the loss at-
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1 tributable to people broadly distributing copyrighted

2 works over the Internet without authorization; and

3 (4) consider whether the sentencing guidelines

4 and policy statements applicable to the offenses de5 scribed in subsection (a) adequately reflect any harm

6 to victims from infringement in circumstances where

7 law enforcement cannot determine how many times

8 copyrighted material is reproduced or distributed.

9 (c) PROMULGATION.—The Commission may promul10 gate the guidelines or amendments under this section in

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

12 of the Sentencing Act of 1987, as though the authority

13 under that Act had not expired.

14 SEC. 112. EXEMPTION FROM INFRINGEMENT FOR SKIPPING

15 AUDIO AND VIDEO CONTENT IN MOTION PIC16 TURES.

17 (a) SHORT TITLE.—This section may be cited as the

18 ‘‘Family Movie Act of 2004’’.

19 (b) EXEMPTION FROM COPYRIGHT AND TRADEMARK

20 INFRINGEMENT FOR SKIPPING OF AUDIO OR VIDEO CON21 TENT OF MOTION PICTURES.—Section 110 of title 17,

22 United States Code, is amended—

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

24 the semicolon at the end;
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1 (2) in paragraph (10), by striking the period at

2 the end and inserting ‘‘; and’’;

3 (3) by inserting after paragraph (10) the fol4 lowing:

5 ‘‘(11) the making imperceptible, by or at the di6 rection of a member of a private household, of lim7 ited portions of audio or video content of a motion

8 picture during a performance in or transmitted to

9 that household for private home viewing, from an

10 authorized copy of the motion picture, or the cre11 ation or provision of a computer program or other

12 technology that enables such making imperceptible

13 and that is designed and marketed for such use at

14 the direction of a member of a private household,

15 if—

16 ‘‘(A) no fixed copy of the altered version of

17 the motion picture is created by such computer

18 program or other technology; and

19 ‘‘(B) no changes, deletions or additions are

20 made by such computer program or other tech21 nology to commercial advertisements, or to net22 work or station promotional announcements,

23 that would otherwise be performed or displayed

24 before, during or after the performance of the

25 motion picture.’’; and
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1 (4) by adding at the end the following:

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

3 imperceptible’ does not include the addition of audio or

4 video content that is performed or displayed over or in

5 place of existing content in a motion picture.’’.

6 (c) EXEMPTION FROM TRADEMARK INFRINGE7 MENT.—Section 32 of the Trademark Act of 1946 (15

8 U.S.C. 1114) is amended by adding at the end the fol9 lowing:

10 (c) EXEMPTION FROM TRADEMARK INFRINGE11 MENT.—Section 32 of the Trademark Act of 1946 (15

12 U.S.C. 1114) is amended by adding at the end the fol13 lowing:

14 ‘‘(3)(A) Any person who engages in the conduct de15 scribed in paragraph (11) of section 110 of title 17,

16 United States Code, and who complies with the require17 ments set forth in that paragraph is not liable on account

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

19 This subparagraph does not preclude liability of a person

20 for conduct not described in paragraph (11) of section 110

21 of title 17, United States Code, even if that person also

22 engages in conduct described in paragraph (11) of section

23 110 of such title.

24 ‘‘(B) A manufacturer, licensee, or licensor of tech25 nology that enables the making of limited portions of
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1 audio or video content of a motion picture imperceptible

2 that is authorized under subparagraph (A) is not liable

3 on account of such manufacture or license for a violation

4 of any right under this Act, if such manufacturer, licensee,

5 or licensor ensures that the technology provides a clear

6 and conspicuous notice at the beginning of each perform7 ance that the performance of the motion picture is altered

8 from the performance intended by the director or copy9 right holder of the motion picture. Subparagraph (A) shall

10 not apply to a manufacturer, licensee, or licensor of tech11 nology that fails to comply with this subparagraph.

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

13 provide notice shall apply only with respect to technology

14 manufactured after the end of the 180-day period begin15 ning on the date of the enactment of the Family Movie

16 Act of 2004.’’.

17 (d) DEFINITION.—In this section, the term ‘‘Trade18 mark Act of 1946’’ means the Act entitled ‘‘An Act to

19 provide for the registration and protection of trademarks

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

21 international conventions, and for other purposes’’, ap22 proved July 5, 1946 (15 U.S.C. 1051 et seq.).
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1 TITLE II—MISCELLANEOUS

2 SEC. 201. DESIGNATION OF NATIONAL TREE.

3 (a) DESIGNATION.—Chapter 3 of title 36, United

4 States Code, is amended by adding at the end the fol5 lowing:

6 ‘‘§ 305. National tree

7 ‘‘The tree genus Quercus, commonly known as the

8 oak tree, is the national tree.’’.

9 (b) CONFORMING AMENDMENTS.—Such title is

10 amended—

11 (1) in the table of contents for part A of sub12 title I, by striking ‘‘, and March’’ and inserting

13 ‘‘March, and Tree’’;

14 (2) in the chapter heading for chapter 3, by

15 striking ‘‘, AND MARCH’’ and inserting ‘‘MARCH,

16 AND TREE’’; and

17 (3) in the table of sections for chapter 3, by

18 adding at the end the following:

‘‘305. National tree.’’.

Passed the House of Representatives September 28,

2004.

Attest:

Clerk.