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or lessee, the licensor of the motion picture being exhib-
ited, or the agent or employee of such licensor— 
‘‘(1) may detain, in a reasonable manner and 
for a reasonable time, any person suspected of com-
mitting an offense under this section for the purpose 
of questioning that person or summoning a law en-
forcement officer; and 
‘‘(2) shall not be held liable in any civil or 
criminal action by reason of a detention under para-
graph (1). 
‘‘(e) VICTIM IMPACT STATEMENT.— 
‘‘(1) IN GENERAL.—During the preparation of 
the presentence report under rule 32(c) of the Fed-
eral Rules of Criminal Procedure, victims of an of-
fense under this section shall be permitted to submit 
to the probation officer a victim impact statement 
that identifies the victim of the offense and the ex-
tent and scope of the injury and loss suffered by the 
victim, including the estimated economic impact of 
the offense on that victim. 
‘‘(2) CONTENTS.—A victim impact statement 
submitted under this subsection shall include— 
‘‘(A) producers and sellers of legitimate 
works affected by conduct involved in the of-
fense;
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‘‘(B) holders of intellectual property rights 
in the works described in subparagraph (A); 
and 
‘‘(C) the legal representatives of such pro-
ducers, sellers, and holders. 
‘‘(f) DEFINITIONS.—In this section: 
‘‘(1) AUDIOVISUAL
WORK, COPY, ETC.—The 
terms ‘audiovisual work’, ‘copy’, ‘copyright owner’, 
‘motion picture’, and ‘transmit’ have, respectively, 
the meanings given those terms in section 101 of 
title 17. 
‘‘(2) AUDIOVISUAL
RECORDING
DEVICE.—The 
term ‘audiovisual recording device’ means a digital 
or analog photographic or video camera, or any 
other technology or device capable of enabling the 
recording or transmission of a copyrighted motion 
picture or other audiovisual work, or any part there-
of, regardless of whether audiovisual recording is the 
sole or primary purpose of the device. 
‘‘(3) MOTION PICTURE EXHIBITION FACILITY.— 
The term ‘motion picture exhibition facility’ means 
a movie theater, screening room, or other venue that 
is being used primarily for the exhibition of a copy-
righted motion picture, if such exhibition is open to 
the public or is made to an assembled group of view-
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ers outside of a normal circle of a family and its so-
cial acquaintances. 
‘‘(g) STATE LAW NOT PREEMPTED.—Nothing in this 
section may be construed to annul or limit any rights or 
remedies under the laws of any State.’’. 
(b) CLERICAL AMENDMENT.—The table of sections 
at the beginning of chapter 113 of title 18, United States 
Code, is amended by inserting after the item relating to 
section 2319A the following: 
‘‘2319B. Unauthorized recording of motion pictures in a motion picture exhi-
bition facility.’’. 
SEC. 109. SENSE OF THE CONGRESS ON NEED TO TAKE 
STEPS TO PREVENT ILLEGAL ACTIVITY ON 
PEER-TO-PEER SERVICES. 
(a) FINDINGS.—The Congress finds as follows: 
(1) The most popular publicly accessible peer- 
to-peer file sharing software programs combined 
have been downloaded worldwide over 600,000,000 
times. 
(2) The vast majority of software products, in-
cluding peer-to-peer technology, do not pose an in-
herent risk. Responsible persons making software 
products should be encouraged and commended for 
the due diligence and reasonable care they take in-
cluding by providing instructions, relevant informa-
tion in the documentation, disseminating patches,
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updates, and other appropriate modifications to the 
software. 
(3) Massive volumes of illegal activity, including 
the distribution of child pornography, viruses, and 
confidential personal information, and copyright in-
fringement occur on publicly accessible peer-to-peer 
file sharing services every day. Some publicly acces-
sible peer-to-peer file sharing services expose con-
sumers, particularly children, to serious risks, in-
cluding legal liability, loss of privacy, threats to com-
puter security, and exposure to illegal and inappro-
priate material. 
(4) Several studies and reports demonstrate 
that pornography, including child pornography, is 
prevalent on publicly available peer-to-peer file shar-
ing services, and children are regularly exposed to 
pornography when using such peer-to-peer file shar-
ing services. 
(5) The full potential of peer-to-peer technology 
to benefit consumers has yet to be realized and will 
not be achieved until these problems are adequately 
addressed. 
(6) To date, the businesses that run publicly ac-
cessible file-sharing services have refused or failed to 
voluntarily and sufficiently address these problems.
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(7) Many users of publicly available peer-to- 
peer file-sharing services are drawn to these systems 
by the lure of obtaining ‘‘free’’ music and movies. 
(8) While some users use parental controls to 
protect children from pornography available on the 
Internet and search engines, not all such controls 
work on publicly accessible peer-to-peer networks. 
(9) Businesses that run publicly accessible peer- 
to-peer file sharing services have openly acknowl-
edged, and numerous studies and reports have estab-
lished, that these services facilitate and profit from 
massive amounts of copyright infringement, causing 
enormous damage to the economic well-being of the 
copyright industries whose works are being illegally 
‘‘shared’’ and downloaded. 
(10) The legitimate digital music marketplace 
offers consumers a wide and growing array of 
choices for obtaining music legally, without exposure 
to the risks posed by publicly accessible peer-to-peer 
file sharing services. 
(11) The Federal Trade Commission issued a 
Consumer Alert in July of 2003 warning consumers 
that some file-sharing services contain damaging vi-
ruses and worms and, without the computer user’s 
knowledge or consent, install spyware to monitor a
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user’s browsing habits and send data to third parties 
or automatically open network connections. 
(12) Publicly available peer-to-peer file-sharing 
services can and should adopt reasonable business 
practices and use technology in the marketplace to 
address the existing risks posed to consumers by 
their services and facilitate the legitimate use of 
peer-to-peer file sharing technology and software. 
(b) SENSE OF CONGRESS.—It is the sense of the 
Congress that— 
(1) responsible software developers should be 
commended, recognized, and encouraged for their ef-
forts to protect consumers; 
(2) currently the level of ongoing and persistent 
illegal and dangerous activity on publicly accessible 
peer-to-peer file sharing services is harmful to con-
sumers, minors, and the economy; and 
(3) therefore, the Congress and the executive 
branch should consider all appropriate measures to 
protect consumers and children, and prevent such il-
legal activity. 
SEC. 110. ENHANCEMENT OF CRIMINAL COPYRIGHT IN-
FRINGEMENT. 
(a) CRIMINAL INFRINGEMENT.—Section 506 of title 
17, United States Code, is amended—
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(1) by amending subsection (a) to read as fol-
lows: 
‘‘(a) CRIMINAL INFRINGEMENT.—Any person who— 
‘‘(1) infringes a copyright willfully and for pur-
poses of commercial advantage or private financial 
gain, 
‘‘(2) infringes a copyright willfully by the repro-
duction or distribution, including by the offering for 
distribution to the public by electronic means, during 
any 180-day period, of 1 or more copies or 
phonorecords of 1 or more copyrighted works, which 
have a total retail value of more than $1,000, or 
‘‘(3) infringes a copyright by the knowing dis-
tribution, including by the offering for distribution 
to the public by electronic means, with reckless dis-
regard of the risk of further infringement, during 
any 180-day period, of— 
‘‘(A) 1,000 or more copies or phonorecords 
of 1 or more copyrighted works, 
‘‘(B) 1 or more copies or phonorecords of 
1 or more copyrighted works with a total retail 
value of more than $10,000, or 
‘‘(C) 1 or more copies or phonorecords of 
1 or more copyrighted pre-release works,
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shall be punished as provided under section 2319 of title 
18. For purposes of this subsection, evidence of reproduc-
tion or distribution of a copyrighted work, by itself, shall 
not be sufficient to establish the necessary level of intent 
under this subsection.’’; and 
(2) by adding at the end the following: 
‘‘(g) LIMITATION ON LIABILITY OF SERVICE PRO-
VIDERS.—No legal entity shall be liable for a violation of 
subsection (a)(3) by reason of performing any function de-
scribed in subsection (a), (b), (c), or (d) of section 512 
if such legal entity would not be liable for monetary relief 
under section 512 by reason of performing such function. 
Except for purposes of determining whether an entity 
qualifies for the limitation on liability under subsection 
(a)(3) of this section, the legal conclusion of whether an 
entity qualifies for a limitation on liability under section 
512 shall not be considered in a judicial determination of 
whether the entity violates subsection (a) of this section. 
‘‘(h) DEFINITIONS.—In this section: 
‘‘(1) PRE-RELEASE WORK.—The term ‘pre-re-
lease work’ refers to a work protected under this 
title which has a commercial and economic value and 
which, at the time of the act of infringement that is 
the basis for the offense under subsection (a)(3), the 
defendant knew or should have known had not yet
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been made available by the copyright owner to indi-
vidual members of the general public in copies or 
phonorecords for sale, license, or rental. 
‘‘(2) RETAIL VALUE.—The ‘retail value’ of a 
copyrighted work is the retail price of that work in 
the market in which it is sold. In the case of an in-
fringement of a copyright by distribution, if the re-
tail price does not adequately reflect the economic 
value of the infringement, then the retail value may 
be determined using other factors, including but not 
limited to suggested retail price, wholesale price, re-
placement cost of the item, licensing, or distribution- 
related fees.’’. 
(b) PENALTIES.—Section 2319 of title 18, United 
States Code, is amended— 
(1) by redesignating subsections (d) and (e) as 
subsections (e) and (f), respectively; 
(2) by inserting after subsection (c) the fol-
lowing: 
‘‘(d) Any person who commits an offense under sec-
tion 506(a)(3) of title 17— 
‘‘(1) shall be imprisoned not more than 3 years, 
or fined in the amount set forth in this title, or both, 
or, if the offense was committed for purposes of 
commercial advantage or private financial gain, im-
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prisoned for not more than 5 years, or fined in the 
amount set forth in this title, or both; and 
‘‘(2) shall, if the offense is a second or subse-
quent offense under paragraph (1), be imprisoned 
not more than 6 years, or fined in the amount set 
forth in this title, or both, or, if the offense was 
committed for purposes of commercial advantage or 
private financial gain, imprisoned for not more than 
10 years, or fined in the amount set forth in this 
title, or both.’’; and 
(3) in subsection (f), as so redesignated— 
(A) in paragraph (1), by striking ‘‘and’’ 
after the semicolon; 
(B) in paragraph (2), by striking the pe-
riod and inserting ‘‘; and’’; and 
(C) by adding at the end the following: 
‘‘(3) the term ‘financial gain’ has the meaning 
given that term in section 101 (relating to defini-
tions) of title 17.’’. 
(c) CIVIL REMEDIES FOR INFRINGEMENT OF A COM-
MERCIAL PRE-RELEASE COPYRIGHTED WORK.—Section 
504(b) of title 17, United States Code, is amended— 
(1) by striking ‘‘The copyright owner’’ and in-
serting the following: 
‘‘(1) IN GENERAL.—The copyright owner’’; and
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(2) by adding at the end the following: 
‘‘(2) DAMAGES
FOR
PRE-RELEASE
INFRINGE-
MENT.— 
‘‘(A) IN
GENERAL.—In the case of any 
pre-release work, actual damages shall be pre-
sumed conclusively to be no less than $10,000 
per infringement, if a person— 
‘‘(i) distributes such work by making 
it available on a computer network acces-
sible to members of the public; and 
‘‘(ii) knew or should have known that 
the work was intended for commercial dis-
tribution. 
‘‘(B) DEFINITION.—For purposes of this 
subsection, the term ‘pre-release work’ has the 
meaning given that term in section 506(h).’’. 
SEC. 111. AMENDMENT OF FEDERAL SENTENCING GUIDE-
LINES REGARDING THE INFRINGEMENT OF 
COPYRIGHTED 
WORKS 
AND 
RELATED 
CRIMES. 
(a) AMENDMENT
TO
THE
SENTENCING
GUIDE-
LINES.—Pursuant to its authority under section 994 of 
title 28, United States Code, and in accordance with this 
section, the United States Sentencing Commission shall 
review and, if appropriate, amend the sentencing guide-
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lines and policy statements applicable to persons convicted 
of intellectual property rights crimes, including sections 
2318, 2319, 2319A, 2319B, 2320 of title 18, United 
States Code, and sections 506, 1201, and 1202 of title 
17, United States Code. 
(b) FACTORS.—In carrying out this section, the Sen-
tencing Commission shall— 
(1) take all appropriate measures to ensure that 
the sentencing guidelines and policy statements ap-
plicable to the offenses described in subsection (a) 
are sufficiently stringent to deter and adequately re-
flect the nature of such offenses; 
(2) consider whether to provide a sentencing en-
hancement for those convicted of the offenses de-
scribed in subsection (a) when the conduct involves 
the display, performance, publication, reproduction, 
or distribution of a copyrighted work before the time 
when the copyright owner has authorized the dis-
play, performance, publication, reproduction, or dis-
tribution of the original work, whether in the media 
format used by the infringing good or in any other 
media format; 
(3) 
consider 
whether 
the 
definition 
of 
‘‘uploading’’ contained in Application Note 3 to 
Guideline 2B5.3 is adequate to address the loss at-
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tributable to people broadly distributing copyrighted 
works over the Internet without authorization; and 
(4) consider whether the sentencing guidelines 
and policy statements applicable to the offenses de-
scribed in subsection (a) adequately reflect any harm 
to victims from infringement in circumstances where 
law enforcement cannot determine how many times 
copyrighted material is reproduced or distributed. 
(c) PROMULGATION.—The Commission may promul-
gate the guidelines or amendments under this section in 
accordance with the procedures set forth in section 21(a) 
of the Sentencing Act of 1987, as though the authority 
under that Act had not expired. 
SEC. 112. EXEMPTION FROM INFRINGEMENT FOR SKIPPING 
AUDIO AND VIDEO CONTENT IN MOTION PIC-
TURES. 
(a) SHORT TITLE.—This section may be cited as the 
‘‘Family Movie Act of 2004’’. 
(b) EXEMPTION FROM COPYRIGHT AND TRADEMARK 
INFRINGEMENT FOR SKIPPING OF AUDIO OR VIDEO CON-
TENT OF MOTION PICTURES.—Section 110 of title 17, 
United States Code, is amended— 
(1) in paragraph (9), by striking ‘‘and’’ after 
the semicolon at the end;
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(2) in paragraph (10), by striking the period at 
the end and inserting ‘‘; and’’; 
(3) by inserting after paragraph (10) the fol-
lowing: 
‘‘(11) the making imperceptible, by or at the di-
rection of a member of a private household, of lim-
ited portions of audio or video content of a motion 
picture during a performance in or transmitted to 
that household for private home viewing, from an 
authorized copy of the motion picture, or the cre-
ation or provision of a computer program or other 
technology that enables such making imperceptible 
and that is designed and marketed for such use at 
the direction of a member of a private household, 
if— 
‘‘(A) no fixed copy of the altered version of 
the motion picture is created by such computer 
program or other technology; and 
‘‘(B) no changes, deletions or additions are 
made by such computer program or other tech-
nology to commercial advertisements, or to net-
work or station promotional announcements, 
that would otherwise be performed or displayed 
before, during or after the performance of the 
motion picture.’’; and
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(4) by adding at the end the following: 
‘‘For purposes of paragraph (11), the term ‘making 
imperceptible’ does not include the addition of audio or 
video content that is performed or displayed over or in 
place of existing content in a motion picture.’’. 
(c) EXEMPTION
FROM
TRADEMARK
INFRINGE-
MENT.—Section 32 of the Trademark Act of 1946 (15 
U.S.C. 1114) is amended by adding at the end the fol-
lowing: 
(c) EXEMPTION
FROM
TRADEMARK
INFRINGE-
MENT.—Section 32 of the Trademark Act of 1946 (15 
U.S.C. 1114) is amended by adding at the end the fol-
lowing: 
‘‘(3)(A) Any person who engages in the conduct de-
scribed in paragraph (11) of section 110 of title 17, 
United States Code, and who complies with the require-
ments set forth in that paragraph is not liable on account 
of such conduct for a violation of any right under this Act. 
This subparagraph does not preclude liability of a person 
for conduct not described in paragraph (11) of section 110 
of title 17, United States Code, even if that person also 
engages in conduct described in paragraph (11) of section 
110 of such title. 
‘‘(B) A manufacturer, licensee, or licensor of tech-
nology that enables the making of limited portions of
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audio or video content of a motion picture imperceptible 
that is authorized under subparagraph (A) is not liable 
on account of such manufacture or license for a violation 
of any right under this Act, if such manufacturer, licensee, 
or licensor ensures that the technology provides a clear 
and conspicuous notice at the beginning of each perform-
ance that the performance of the motion picture is altered 
from the performance intended by the director or copy-
right holder of the motion picture. Subparagraph (A) shall 
not apply to a manufacturer, licensee, or licensor of tech-
nology that fails to comply with this subparagraph. 
‘‘(C) The requirement under subparagraph (B) to 
provide notice shall apply only with respect to technology 
manufactured after the end of the 180-day period begin-
ning on the date of the enactment of the Family Movie 
Act of 2004.’’. 
(d) DEFINITION.—In this section, the term ‘‘Trade-
mark Act of 1946’’ means the Act entitled ‘‘An Act to 
provide for the registration and protection of trademarks 
used in commerce, to carry out the provisions of certain 
international conventions, and for other purposes’’, ap-
proved July 5, 1946 (15 U.S.C. 1051 et seq.).
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TITLE II—MISCELLANEOUS 
SEC. 201. DESIGNATION OF NATIONAL TREE. 
(a) DESIGNATION.—Chapter 3 of title 36, United 
States Code, is amended by adding at the end the fol-
lowing: 
‘‘§ 305. National tree 
‘‘The tree genus Quercus, commonly known as the 
oak tree, is the national tree.’’. 
(b) CONFORMING
AMENDMENTS.—Such title is 
amended— 
(1) in the table of contents for part A of sub-
title I, by striking ‘‘, and March’’ and inserting 
‘‘March, and Tree’’; 
(2) in the chapter heading for chapter 3, by 
striking ‘‘, AND MARCH’’ and inserting ‘‘MARCH, 
AND TREE’’; and 
(3) in the table of sections for chapter 3, by 
adding at the end the following: 
‘‘305. National tree.’’. 
Passed the House of Representatives September 28, 
2004. 
Attest: 
JEFF TRANDAHL, 
Clerk.