II 
Calendar No. 781 
108TH CONGRESS 
2D SESSION 
H. R. 2391 
IN THE SENATE OF THE UNITED STATES 
MARCH 11, 2004 
Received; read twice and referred to the Committee on the Judiciary 
OCTOBER 7, 2004 
Reported by Mr. HATCH, with an amendment 
[Strike out all after the enacting clause and insert the part printed in italic] 
AN ACT 
To amend title 35, United States Code, to promote coopera-
tive research involving universities, the public sector, and 
private enterprises. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Cooperative Research 
and Technology Enhancement (CREATE) Act of 2004’’.
names of the parties to the joint research agree-
ment. 
‘‘(3) For purposes of paragraph (2), the term ‘joint 
research agreement’ means a written contract, grant, or 
cooperative agreement entered into by two or more per-
sons or entities for the performance of experimental, devel-
opmental, or research work in the field of the claimed in-
vention.’’. 
SEC. 3. EFFECTIVE DATE. 
(a) IN GENERAL.—The amendments made by this 
Act shall apply to any patent granted on or after the date 
of the enactment of this Act. 
(b) SPECIAL RULE.—The amendments made by this 
Act shall not affect any final decision of a court or the 
United States Patent and Trademark Office rendered be-
fore the date of the enactment of this Act, and shall not 
affect the right of any party in any action pending before 
the United States Patent and Trademark Office or a court 
on the date of the enactment of this Act to have that par-
ty’s rights determined on the basis of the provisions of 
title 35, United States Code, in effect on the day before 
the date of the enactment of this Act. 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Intellectual Property 
Protection Act of 2004’’.
TITLE 
I—COOPERATIVE 
RE-
SEARCH 
AND 
TECHNOLOGY 
ENHANCEMENT 
SEC. 101. SHORT TITLE. 
This title may be cited as the ‘‘Cooperative Research 
and Technology Enhancement (CREATE) Act of 2004’’. 
SEC. 102. COLLABORATIVE EFFORTS ON CLAIMED INVEN-
TIONS. 
Section 103(c) of title 35, United States Code, is 
amended to read as follows: 
‘‘(c)(1) Subject matter developed by another person, 
which qualifies as prior art only under one or more of sub-
sections (e), (f), and (g) of section 102 of this title, shall 
not preclude patentability under this section where the sub-
ject matter and the claimed invention were, at the time the 
claimed invention was made, owned by the same person or 
subject to an obligation of assignment to the same person. 
‘‘(2) For purposes of this subsection, subject matter de-
veloped by another person and a claimed invention shall 
be deemed to have been owned by the same person or subject 
to an obligation of assignment to the same person if— 
‘‘(A) the claimed invention was made by or on 
behalf of parties to a joint research agreement that 
was in effect on or before the date the claimed inven-
tion was made;
‘‘(B) the claimed invention was made as a result 
of activities undertaken within the scope of the joint 
research agreement; and 
‘‘(C) the application for patent for the claimed 
invention discloses or is amended to disclose the 
names of the parties to the joint research agreement. 
‘‘(3) For purposes of paragraph (2), the term ‘joint 
research agreement’ means a written contract, grant, or co-
operative agreement entered into by two or more persons 
or entities for the performance of experimental, develop-
mental, or research work in the field of the claimed inven-
tion.’’. 
SEC. 103. EFFECTIVE DATE. 
(a) IN GENERAL.—The amendments made by this title 
shall apply to any patent granted on or after the date of 
the enactment of this Act. 
(b) SPECIAL RULE.—The amendments made by this 
title shall not affect any final decision of a court or the 
United States Patent and Trademark Office rendered before 
the date of the enactment of this Act, and shall not affect 
the right of any party in any action pending before the 
United States Patent and Trademark Office or a court on 
the date of the enactment of this Act to have that party’s 
rights determined on the basis of the provisions of title 35,
United States Code, in effect on the day before the date of 
the enactment of this Act. 
TITLE II—PIRACY DETERRENCE 
IN EDUCATION 
SEC. 201. SHORT TITLE. 
This title may be cited as the ‘‘Piracy Deterrence and 
Education Act of 2004’’. 
SEC. 202. FINDINGS. 
Congress finds as follows: 
(1) The Internet, while changing the way our so-
ciety communicates, has also changed the nature of 
many crimes, including the theft of intellectual prop-
erty. 
(2) Trafficking in infringing copyrighted works 
through increasingly sophisticated electronic means, 
including peer-to-peer file trading networks, Internet 
chat rooms, and news groups, threatens lost jobs, lost 
income for creators, lower tax revenue, and higher 
prices for honest purchasers. 
(3) The most popular peer-to-peer file trading 
software programs have been downloaded by computer 
users over 600,000,000 times. At any one time there 
are over 3,000,000 users simultaneously using just 
one of these services. Each month, on average, over
2,300,000,000 digital-media files are transferred 
among users of peer-to-peer systems. 
(4) Many computer users simply believe that 
they will not be caught or prosecuted for their con-
duct. 
(5) The security and privacy threats posed by 
certain peer-to-peer networks extend beyond users in-
advertently enabling a hacker to access files. Millions 
of copies of one of the most popular peer-to-peer net-
works contain software that could allow an inde-
pendent company to take over portions of users’ com-
puters and Internet connections and has the capacity 
to keep track of users’ online habits. 
(6) In light of these considerations, Federal law 
enforcement agencies should actively pursue criminals 
who steal the copyrighted works of others, and prevent 
such activity through enforcement and awareness. The 
public should be educated about the security and pri-
vacy risks associated with being connected to certain 
peer-to-peer networks. 
SEC. 203. VOLUNTARY PROGRAM OF DEPARTMENT OF JUS-
TICE. 
(a) VOLUNTARY PROGRAM.—The Attorney General is 
authorized to establish a program under which the Depart-
ment of Justice, in cases where persons who are subscribers
of Internet service providers appear to the Department of 
Justice to be engaging in copyright infringing conduct in 
the course of using such Internet service, would send to the 
Internet service providers warning letters that warn such 
persons of the penalties for such copyright infringement. 
The Internet service providers may forward the warning let-
ters to such persons. 
(b) LIMITATIONS ON PROGRAM.— 
(1) EXTENT
AND
LENGTH
OF
PROGRAM.—The 
program under subsection (a) shall terminate at the 
end of the 18-month period beginning on the date of 
the enactment of this Act and shall be limited to not 
more than 10,000 warning letters. 
(2) PRIVACY PROTECTIONS.—No Internet service 
provider that receives a warning letter from the De-
partment of Justice under subsection (a) may disclose 
to the Department any identifying information about 
the subscriber that is the subject of the warning letter 
except pursuant to court order or other applicable 
legal process that requires such disclosure. 
(c) REIMBURSEMENT
OF INTERNET SERVICE PRO-
VIDERS.—The Department of Justice shall reimburse Inter-
net service providers for all reasonable direct costs incurred 
by such service providers in identifying the proper recipi-
ents of the warning letters under subsection (a) and for-
warding the letters. 
(d) REPORTS TO CONGRESS.—The Attorney General 
shall submit to Congress a report on the program estab-
lished under subsection (a) both at the time the program 
is initiated and at the conclusion of the program. 
(e) INADMISSIBILITY OF EVIDENCE.—The fact that an 
Internet service provider participated in the program under 
subsection (a), received a warning letter from the Depart-
ment of Justice, was aware of the contents of the warning 
letter, or forwarded the warning letter to a subscriber, shall 
not be admissible in any legal proceeding brought against 
the Internet service provider. 
(f) CONSTRUCTION.—Nothing in this section shall be 
construed to affect the ability of a court to consider, in a 
legal proceeding brought against an Internet service pro-
vider, notifications of claimed infringement as described in 
section 512(c)(3) of title 17, United States Code, or any 
other relevant evidence, other than that described in sub-
section (e). 
SEC. 204. DESIGNATION AND TRAINING OF AGENTS IN COM-
PUTER HACKING AND INTELLECTUAL PROP-
ERTY UNITS. 
(a) DESIGNATION OF AGENTS IN CHIPS UNITS.—The 
Attorney General shall ensure that any unit in the Depart-
ment of Justice responsible for investigating computer hack-
ing or responsible for investigating intellectual property 
crimes is assigned at least one agent to support such unit 
for the purpose of investigating crimes relating to the theft 
of intellectual property. 
(b) TRAINING.—The Attorney General shall ensure 
that each agent assigned under subsection (a) has received 
training in the investigation and enforcement of intellectual 
property crimes. 
SEC. 205. EDUCATION PROGRAM. 
(a) ESTABLISHMENT.—There shall be established with-
in the Office of the Associate Attorney General of the United 
States an Internet Use Education Program. 
(b) PURPOSE.—The purpose of the Internet Use Edu-
cation Program shall be to— 
(1) educate the general public concerning the 
value of copyrighted works and the effects of the theft 
of such works on those who create them; and 
(2) educate the general public concerning the pri-
vacy, security, and other risks of using the Internet 
to obtain illegal copies of copyrighted works. 
(c) SECTOR SPECIFIC MATERIALS.—The Internet Use 
Educational Program shall, to the extent appropriate, de-
velop materials appropriate to Internet users in different 
sectors of the general public where criminal copyright in-
fringement is a concern. The Attorney General shall consult 
with appropriate interested parties in developing such sec-
tor-specific materials. 
(d) CONSULTATIONS.—The Attorney General shall con-
sult with the Register of Copyrights and the Secretary of 
Commerce in developing the Internet Use Education Pro-
gram under this section. 
(e) PROHIBITION ON USE OF CERTAIN FUNDS.—The 
program created under this section shall not use funds or 
resources of the Department of Justice allocated for crimi-
nal investigation or prosecution. 
(f) ADDITIONAL
PROHIBITION
ON
THE
USE
OF 
FUNDS.—The program created under this section shall not 
use any funds or resources of the Department of Justice al-
located for the Civil Rights Division of the Department, in-
cluding any funds allocated for the enforcement of civil 
rights or the Voting Rights Act of 1965. 
SEC. 206. ACTIONS BY THE GOVERNMENT OF THE UNITED 
STATES. 
Section 411(a) of title 17, United States Code, is 
amended in the first sentence by striking ‘‘Except for’’ and 
inserting ‘‘Except for an action brought by the Government 
of the United States or by any agency or instrumentality 
thereof, or’’ .
SEC. 207. AUTHORIZED APPROPRIATIONS. 
There are authorized to be appropriated to the Depart-
ment of Justice for fiscal year 2005 not less than 
$15,000,000 for the investigation and prosecution of viola-
tions of title 17, United States Code. 
SEC. 208. CRIMINAL PENALTIES FOR UNAUTHORIZED RE-
CORDING OF MOTION PICTURES IN A MOTION 
PICTURE EXHIBITION FACILITY. 
(a) IN GENERAL.—Chapter 113 of title 18, United 
States Code, is amended by adding after section 2319A the 
following new section: 
‘‘§ 2319B. Unauthorized recording of motion pictures 
in a motion picture exhibition facility 
‘‘(a) OFFENSE.—Any person who, without the author-
ization of the copyright owner, knowingly uses or attempts 
to use an audiovisual recording device to transmit or make 
a copy of a motion picture or other audiovisual work pro-
tected under title 17, or any part thereof, from a perform-
ance of such work in a motion picture exhibition facility, 
shall— 
‘‘(1) be imprisoned for not more than 3 years, 
fined under this title, or both; or 
‘‘(2) if the offense is a second or subsequent of-
fense, be imprisoned for no more than 6 years, fined 
under this title, or both.
The possession by a person of an audiovisual recording de-
vice in a motion picture exhibition facility may be consid-
ered as evidence in any proceeding to determine whether 
that person committed an offense under this subsection, but 
shall not, by itself, be sufficient to support a conviction of 
that person for such offense. 
‘‘(b) FORFEITURE AND DESTRUCTION.—When a per-
son is convicted of an offense under subsection (a), the court 
in its judgment of conviction shall, in addition to any pen-
alty provided, order the forfeiture and destruction or other 
disposition of all unauthorized copies of motion pictures or 
other audiovisual works protected under title 17, or parts 
thereof, and any audiovisual recording devices or other 
equipment used in connection with the offense. 
‘‘(c) AUTHORIZED ACTIVITIES.—This section does not 
prevent any lawfully authorized investigative, protective, or 
intelligence activity by an officer, agent, or employee of the 
United States, a State, or a political subdivision of a State, 
or by a person acting under a contract with the United 
States, a State, or a political subdivision of a State. 
‘‘(d) IMMUNITY
FOR THEATERS
AND AUTHORIZED 
PERSONS.—With reasonable cause, the owner or lessee of 
a motion picture facility where a motion picture is being 
exhibited, the authorized agent or employee of such owner
or lessee, the licensor of the motion picture being exhibited, 
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 Federal 
Rules of Criminal Procedure, victims of an offense 
under this section shall be permitted to submit to the 
probation officer a victim impact statement that iden-
tifies the victim of the offense and the extent and 
scope of the injury and loss suffered by the victim, in-
cluding 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 offense;
‘‘(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 mean-
ings 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 thereof, regard-
less 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-
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 exhibition 
facility.’’. 
SEC. 209. SENSE OF CONGRESS ON NEED TO TAKE STEPS 
TO PREVENT ILLEGAL ACTIVITY ON PEER-TO- 
PEER SERVICES. 
(a) FINDINGS.—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 inher-
ent risk. Responsible persons making software prod-
ucts should be encouraged and commended for the due 
diligence and reasonable care they take including by 
providing instructions, relevant information in the 
documentation, disseminating patches, 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 accessible 
peer-to-peer file sharing services expose consumers, 
particularly children, to serious risks, including legal 
liability, loss of privacy, threats to computer security, 
and exposure to illegal and inappropriate material. 
(4) Several studies and reports demonstrate that 
pornography, including child pornography, is preva-
lent on publicly available peer-to-peer file sharing 
services, and children are regularly exposed to por-
nography when using such peer-to-peer file sharing 
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. 
(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 acknowledged, 
and numerous studies and reports have established, 
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 of-
fers 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 
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 ad-
dress 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 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, Congress and the executive branch 
should consider all appropriate measures to protect 
consumers and children, and prevent such illegal ac-
tivity. 
SEC. 210. ENHANCEMENT OF CRIMINAL COPYRIGHT IN-
FRINGEMENT. 
(a) CRIMINAL INFRINGEMENT.—Section 506 of title 
17, United States Code, is amended— 
(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 disregard 
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, 
shall be punished as provided under section 2319 of title 
18. For purposes of this subsection, evidence of reproduction 
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 quali-
fies 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 wheth-
er the entity violates subsection (a) of this section. 
‘‘(h) DEFINITIONS.—In this section: 
‘‘(1) PRE-RELEASE WORK.—The term ‘pre-release 
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 been made 
available by the copyright owner to individual mem-
bers 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 retail 
price does not adequately reflect the economic value of 
the infringement, then the retail value may be deter-
mined using other factors, including but not limited 
to suggested retail price, wholesale price, replacement 
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 section 
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 com-
mercial advantage or private financial gain, impris-
oned 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 subsequent 
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 pur-
poses 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 period 
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 WORK 
BEING PREPARED FOR COMMERCIAL DISTRIBUTION.— 
(1) PREREGISTRATION.—Section 408 of title 17, 
United States Code, is amended by adding at the end 
the following: 
‘‘(f) PREREGISTRATION OF WORKS BEING PREPARED 
FOR COMMERCIAL DISTRIBUTION.— 
‘‘(1) RULEMAKING.—Not later than 180 days 
after the date of enactment of this subsection, the Reg-
ister of Copyrights shall issue regulations to establish 
procedures for preregistration of a work that is being 
prepared for commercial distribution and has not 
been published. 
‘‘(2) CLASS OF WORKS.—The regulations estab-
lished 
under 
paragraph 
(1) 
shall 
permit 
preregistration for any work that is in a class of 
works that the Register determines has had a history 
of infringement prior to authorized commercial dis-
tribution. 
‘‘(3) APPLICATION
FOR
REGISTRATION.—Not 
later than 3 months after the first publication of the 
work, the applicant shall submit to the Copyright Of-
fice— 
‘‘(A) an application for registration of the 
work; 
‘‘(B) a deposit; and 
‘‘(C) the applicable fee. 
‘‘(4) EFFECT OF UNTIMELY APPLICATION.—An 
action for infringement under this chapter shall be 
dismissed, and no award of statutory damages or at-
torney fees shall be made for a preregistered work, if 
the items described in paragraph (3) are not sub-
mitted to the Copyright Office in proper form within 
the earlier of—
‘‘(A) 3 months after the first publication of 
the work; or 
‘‘(B) 1 month after the copyright owner has 
learned of the infringement.’’. 
(2) INFRINGEMENT ACTIONS.—Section 411(a) of 
title 17, United States Code, is amended by inserting 
‘‘preregistration or’’ after ‘‘shall be instituted until’’. 
(3) EXCLUSION.—Section 412 of title 17, United 
States Code, is amended by inserting ‘‘, an action for 
infringement of the copyright of a work that has been 
preregistered under section 408(f) before the com-
mencement of the infringement,’’ after ‘‘section 
106A(a)’’. 
SEC. 211. AMENDMENT OF FEDERAL SENTENCING GUIDE-
LINES REGARDING THE INFRINGEMENT OF 
COPYRIGHTED WORKS AND RELATED CRIMES. 
(a) AMENDMENT TO THE SENTENCING GUIDELINES.— 
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 guidelines 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 appli-
cable to the offenses described in subsection (a) are 
sufficiently stringent to deter and adequately reflect 
the nature of such offenses; 
(2) consider whether to provide a sentencing en-
hancement for those convicted of the offenses described 
in subsection (a) when the conduct involves the dis-
play, performance, publication, reproduction, or dis-
tribution of a copyrighted work before the time when 
the copyright owner has authorized the display, per-
formance, publication, reproduction, or distribution 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 attrib-
utable 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 ac-
cordance 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. 212. 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; 
(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 limited 
portions of audio or video content of a motion pic-
ture, during a performance in or transmitted to that 
household for private home viewing, from an author-
ized copy of the motion picture, or the creation 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 
(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 INFRINGEMENT.— 
Section 32 of the Trademark Act of 1946 (15 U.S.C. 1114) 
is amended by adding at the end the following:
‘‘(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 requirements 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 audio 
or video content of a motion picture imperceptible as de-
scribed in 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 performance that the performance 
of the motion picture is altered from the performance in-
tended by the director or copyright holder of the motion pic-
ture. The limitations on liability in subparagraphs (A) and 
(B) shall not apply to a manufacturer, licensee, or licensor 
of technology that fails to comply with this paragraph. 
‘‘(C) The requirement under subparagraph (B) to pro-
vide notice shall apply only with respect to technology man-
ufactured after the end of the 180-day period beginning 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 pro-
vide for the registration and protection of trademarks used 
in commerce, to carry out the provisions of certain inter-
national conventions, and for other purposes’’, approved 
July 5, 1946 (15 U.S.C. 1051 et seq.). 
TITLE III—PROTECTING INTEL-
LECTUAL 
RIGHTS 
AGAINST 
THEFT AND EXPROPRIATION 
SEC. 301. SHORT TITLE. 
This title may be cited as the ‘‘Protecting Intellectual 
Rights Against Theft and Expropriation Act of 2004’’. 
SEC. 302. AUTHORIZATION OF CIVIL COPYRIGHT ENFORCE-
MENT BY ATTORNEY GENERAL. 
(a) IN GENERAL.—Chapter 5 of title 17, United States 
Code, is amended by inserting after section 506 the fol-
lowing: 
‘‘§ 506a. Civil penalties for violations of section 506 
‘‘(a) IN GENERAL.—In lieu of a criminal action under 
section 506, the Attorney General may commence a civil 
action in the appropriate United States district court 
against any person who engages in conduct constituting an 
offense under section 506. Upon proof of such conduct by
a preponderance of the evidence, such person shall be subject 
to a civil penalty under section 504 which shall be in an 
amount equal to the amount which would be awarded under 
section 3663(a)(1)(B) of title 18 and restitution to the copy-
right owner aggrieved by the conduct. 
‘‘(b) OTHER REMEDIES.— 
‘‘(1) IN GENERAL.—Imposition of a civil penalty 
under this section does not preclude any other crimi-
nal or civil statutory, injunctive, common law or ad-
ministrative remedy, which is available by law to the 
United States or any other person. 
‘‘(2) OFFSET.—Any restitution received by a 
copyright owner as a result of a civil action brought 
under this section shall be offset against any award 
of damages in a subsequent copyright infringement 
civil action by that copyright owner for the conduct 
that gave rise to the civil action brought under this 
section.’’. 
(b) DAMAGES AND PROFITS.—Section 504 of title 17, 
United States Code, is amended— 
(1) in subsection (b)— 
(A) in the first sentence— 
(i) by inserting ‘‘, or the Attorney Gen-
eral in a civil action,’’ after ‘‘The copyright 
owner’’; and
(ii) by striking ‘‘him or her’’ and in-
serting ‘‘the copyright owner’’; and 
(B) in the second sentence by inserting ‘‘, or 
the Attorney General in a civil action,’’ after 
‘‘the copyright owner’’; and 
(2) in subsection (c)— 
(A) in paragraph (1), by inserting ‘‘, or the 
Attorney General in a civil action,’’ after ‘‘the 
copyright owner’’; and 
(B) in paragraph (2), by inserting ‘‘, or the 
Attorney General in a civil action,’’ after ‘‘the 
copyright owner’’. 
(c) TECHNICAL AND CONFORMING AMENDMENT.—The 
table of sections for chapter 5 of title 17, United States 
Code, is amended by inserting after the item relating to 
section 506 the following: 
‘‘506a. Civil penalties for violation of section 506.’’. 
SEC. 303. AUTHORIZATION OF FUNDING FOR TRAINING 
AND PILOT PROGRAM. 
(a) TRAINING AND PILOT PROGRAM.—Not later than 
180 days after enactment of this Act, the Attorney General 
shall develop a program to ensure effective implementation 
and use of the authority for civil enforcement of the copy-
right laws by— 
(1) establishing training programs, including 
practical training and written materials, for quali-
fied personnel from the Department of Justice and 
United States Attorneys Offices to educate and inform 
such personnel about— 
(A) resource information on intellectual 
property and the legal framework established 
both to protect and encourage creative works as 
well as legitimate uses of information and rights 
under the first amendment of the United States 
Constitution; 
(B) the technological challenges to pro-
tecting digital copyrighted works from online pi-
racy; 
(C) guidance on and support for bringing 
copyright enforcement actions against persons 
engaging in infringing conduct, including model 
charging documents and related litigation mate-
rials; 
(D) strategic issues in copyright enforce-
ment actions, including whether to proceed in a 
criminal or a civil action; 
(E) how to employ and leverage the exper-
tise of technical experts in computer forensics; 
(F) the collection and preservation of elec-
tronic data in a forensically sound manner for 
use in court proceedings;
(G) the role of the victim copyright owner 
in providing relevant information for enforce-
ment actions and in the computation of dam-
ages; and 
(H) the appropriate use of injunctions, im-
poundment, forfeiture, and related authorities in 
copyright law; 
(2) designating personnel from at least 4 United 
States Attorneys Offices to participate in a pilot pro-
gram designed to implement the civil enforcement au-
thority of the Attorney General under section 506a of 
title 17, United States Code, as added by this title; 
and 
(3) reporting to Congress annually on— 
(A) the use of the civil enforcement author-
ity of the Attorney General under section 506a 
of title 17, United States Code, as added by this 
title; and 
(B) the progress made in implementing the 
training and pilot programs described under 
paragraphs (1) and (2) of this subsection. 
(b) ANNUAL REPORT.—The report under subsection 
(a)(3) may be included in the annual performance report 
of the Department of Justice and shall include—
(1) with respect to civil actions filed under sec-
tion 506a of title 17, United States Code, as added 
by this title— 
(A) the number of investigative matters re-
ceived by the Department of Justice and United 
States Attorneys Offices; 
(B) the number of defendants involved in 
those matters; 
(C) the number of civil actions filed and the 
number of defendants involved; 
(D) the number of civil actions resolved or 
terminated; 
(E) the number of defendants involved in 
those civil actions; 
(F) the disposition of those civil actions, in-
cluding whether the civil actions were settled, 
dismissed, or resolved after a trial; 
(G) the dollar value of any civil penalty 
imposed and the amount remitted to any copy-
right owner; and 
(H) other information that the Attorney 
General may consider relevant to inform Con-
gress on the effective use of the civil enforcement 
authority;
(2) a description of the training program and 
the number of personnel who participated in the pro-
gram; and 
(3) the locations of the United States Attorneys 
Offices designated to participate in the pilot program. 
(c) AUTHORIZATION OF APPROPRIATIONS.—There are 
authorized to be appropriated $2,000,000 for fiscal year 
2005 to carry out this section. 
TITLE IV—NATIONAL FILM 
PRESERVATION ACT OF 2004 
Subtitle A—Reauthorization of the 
National Film Preservation Board 
SEC. 401. SHORT TITLE. 
This subtitle may be cited as the ‘‘National Film Pres-
ervation Act of 2004’’. 
SEC. 402. REAUTHORIZATION AND AMENDMENT. 
(a) DUTIES OF THE LIBRARIAN OF CONGRESS.—Sec-
tion 103 of the National Film Preservation Act of 1996 (2 
U.S.C. 179m) is amended— 
(1) in subsection (b)— 
(A) by striking ‘‘film copy’’ each place that 
term appears and inserting ‘‘film or other ap-
proved copy’’;
(B) by striking ‘‘film copies’’ each place 
that term appears and inserting ‘‘film or other 
approved copies’’; and 
(C) in the third sentence, by striking ‘‘copy-
righted’’ and inserting ‘‘copyrighted, mass dis-
tributed, broadcast, or published’’; and 
(2) by adding at the end the following: 
‘‘(c) COORDINATION OF PROGRAM WITH OTHER COL-
LECTION, PRESERVATION, AND
ACCESSIBILITY
ACTIVI-
TIES.—In carrying out the comprehensive national film 
preservation program for motion pictures established under 
the National Film Preservation Act of 1992, the Librarian, 
in consultation with the Board established pursuant to sec-
tion 104, and in accordance with title 17, United States 
Code, shall— 
‘‘(1) carry out activities to make films included 
in the National Film registry more broadly accessible 
for research and educational purposes, and to gen-
erate public awareness and support of the Registry 
and the comprehensive national film preservation 
program; 
‘‘(2) review the comprehensive national film 
preservation plan, and amend it to the extent nec-
essary to ensure that it addresses technological ad-
vances in the preservation and storage of, and access 
to film collections in multiple formats; and 
‘‘(3) wherever possible, undertake expanded ini-
tiatives to ensure the preservation of the moving 
image heritage of the United States, including film, 
videotape, television, and born digital moving image 
formats, by supporting the work of the National 
Audio-Visual Conservation Center of the Library of 
Congress, and other appropriate nonprofit archival 
and preservation organizations.’’. 
(b) NATIONAL FILM PRESERVATION BOARD.—Section 
104 of the National Film Preservation Act of 1996 (2 
U.S.C. 179n) is amended— 
(1) in subsection (a)(1), by striking ‘‘20’’ and in-
serting ‘‘22’’; 
(2) in subsection (a)(2), by striking ‘‘three’’ and 
inserting ‘‘5’’; 
(3) in subsection (d), by striking ‘‘11’’ and in-
serting ‘‘12’’; and 
(4) by striking subsection (e) and inserting the 
following: 
‘‘(e) REIMBURSEMENT OF EXPENSES.—Members of the 
Board shall serve without pay, but may receive travel ex-
penses, including per diem in lieu of subsistence, in accord-
ance with sections 5702 and 5703 of title 5, United States 
Code.’’. 
(c) NATIONAL FILM REGISTRY.—Section 106 of the 
National Film Preservation Act of 1996 (2 U.S.C. 179q) 
is amended by adding at the end the following: 
‘‘(e) NATIONAL AUDIO-VISUAL CONSERVATION CEN-
TER.—The Librarian shall utilize the National Audio-Vis-
ual Conservation Center of the Library of Congress at 
Culpeper, Virginia, to ensure that preserved films included 
in the National Film Registry are stored in a proper man-
ner, and disseminated to researchers, scholars, and the pub-
lic as may be appropriate in accordance with— 
‘‘(1) title 17 of the United States Code; and 
‘‘(2) the terms of any agreements between the Li-
brarian and persons who hold copyrights to such 
audiovisual works.’’. 
(d) USE OF SEAL.—Section 107 (a) of the National 
Film Preservation Act of 1996 (2 U.S.C. 179q) is amend-
ed— 
(1) in paragraph (1), by inserting ‘‘in any for-
mat’’ after ‘‘or any copy’’; and 
(2) in paragraph (2), by striking ‘‘or film copy’’ 
and inserting ‘‘in any format’’. 
(e) AUTHORIZATION
OF APPROPRIATIONS.—Section 
112 of the National Film Preservation Act of 1996 (2
U.S.C. 179v) is amended by striking ‘‘$250,000’’ and in-
serting ‘‘$200,000’’. 
(f) EFFECTIVE DATE.—Section 113 of the National 
Film Preservation Act of 1996 (2 U.S.C. 179w) is amended 
by striking ‘‘7’’ and inserting ‘‘11’’. 
Subtitle B—Reauthorization of the 
National 
Film 
Preservation 
Foundation 
SEC. 411. SHORT TITLE. 
This subtitle may be cited as the ‘‘National Film Pres-
ervation Foundation Reauthorization Act of 2004’’. 
SEC. 412. REAUTHORIZATION AND AMENDMENT. 
(a) BOARD OF DIRECTORS.—Section 151703 of title 
36, United States Code, is amended— 
(1) in subsection (b)(2)(A), by striking ‘‘nine’’ 
and inserting ‘‘12’’; and 
(2) in subsection (b)(4), by striking the second 
sentence and inserting ‘‘There shall be no limit to the 
number of terms to which any individual may be ap-
pointed.’’. 
(b) POWERS.—Section 151705 of title 36, United 
States Code, is amended in subsection (b) by striking ‘‘Dis-
trict of Columbia’’ and inserting ‘‘the jurisdiction in which 
the principal office of the corporation is located’’.
(c) PRINCIPAL OFFICE.—Section 151706 of title 36, 
United States Code, is amended by inserting ‘‘, or another 
place as determined by the board of directors’’ after ‘‘Dis-
trict of Columbia’’. 
(d) AUTHORIZATION
OF APPROPRIATIONS.—Section 
151711 of title 36, United States Code, is amended by strik-
ing subsections (a) and (b) and inserting the following: 
‘‘(a) AUTHORIZATION
OF APPROPRIATIONS.—There 
are authorized to be appropriated to the Library of Con-
gress amounts necessary to carry out this chapter, not to 
exceed $250,000 for each of the fiscal years 2005 and 2006, 
and not to exceed $400,000 for fiscal year 2007. These 
amounts are to be made available to the corporation to 
match any private contributions (whether in currency, serv-
ices, or property) made to the corporation by private per-
sons and State and local governments. 
‘‘(b) LIMITATION RELATED TO ADMINISTRATIVE EX-
PENSES.—Amounts authorized under this section may not 
be used by the corporation for management and general or 
fundraising expenses as reported to the Internal Revenue 
Service as part of an annual information return required 
under the Internal Revenue Code of 1986.’’.
TITLE V—PRESERVATION OF 
ORPHAN WORKS 
SEC. 501. SHORT TITLE. 
This title may be cited as the ‘‘ Preservation of Orphan 
Works Act’’. 
SEC. 502. REPRODUCTION OF COPYRIGHTED WORKS BY LI-
BRARIES AND ARCHIVES. 
Section 108(i) of title 17, United States Code, is 
amended by striking ‘‘(b) and (c)’’ and inserting ‘‘(b), (c), 
and (h)’’. 
TITLE VI—ENHANCING FEDERAL 
OBSCENITY REPORTING AND 
COPYRIGHT ENFORCEMENT 
SEC. 601. SHORT TITLE. 
This title may be cited as the ‘‘Enhancing Federal Ob-
scenity Reporting and Copyright Enforcement Act of 2004’’. 
SEC. 602. HARMLESS ERRORS IN REGISTRATION CERTIFI-
CATES. 
(a) IN GENERAL.—Section 411 of title 17, United 
States Code, is amended— 
(1) by redesignating subsection (b) as subsection 
(c); and 
(2) inserting after subsection (a) the following:
‘‘(b)(1) A certificate of registration shall satisfy the re-
quirements of this section and section 412 irrespective of 
any inaccurate information therein, unless— 
‘‘(A) the inaccurate information was included on 
the application for copyright registration with knowl-
edge that it was inaccurate; and 
‘‘(B) the inaccuracy of the information, if 
known, would have caused the Register of Copyrights 
to refuse registration. 
‘‘(2) In any case in which inaccuracies described under 
paragraph (1) are alleged, the court shall request the Reg-
ister of Copyrights to advise the court whether the inaccu-
racy of the information, if known, would have caused the 
Register of Copyrights to refuse registration.’’. 
(b) TECHNICAL AND CONFORMING AMENDMENT.—Sec-
tion 412 of title 17, United States Code, is amended by 
striking ‘‘section 411(b)’’ and inserting ‘‘section 411(c)’’. 
SEC. 603. COMPUTATION OF STATUTORY DAMAGES. 
Section 504(c)(1) of title 17, United States Code, is 
amended in the second sentence by inserting before the pe-
riod ‘‘, except that the court in its discretion may determine 
that such parts are separate works if the court concludes 
that they are distinct works having independent economic 
value’’.
SEC. 604. REPORT TO CONGRESS. 
The Attorney General shall include in the report of the 
Attorney General to Congress on the business of the Depart-
ment of Justice, prepared under section 522 of title 28, 
United States Code, the number of misdemeanor prosecu-
tions and the number of felony prosecutions under sections 
1462, 1464, 1465, 1466, 1466A, 1470, 2252, 2252A, 2252B, 
2260, 2318, 2319, 2319A, and 2320 of title 18, United 
States Code, commenced and concluded during the last pre-
ceding fiscal year, including, in the case of those offenses 
where applicable, detailed information concerning— 
(1) the types of works involved; 
(2) the tangible media of expression and means 
of reproduction and distribution involved; and 
(3) in the case of prosecutions concluded, the dis-
position of such prosecutions, such as the number of 
convictions and acquittals, and the sentences imposed.
Calendar No. 781 
108TH CONGRESS 
2D SESSION 
H. R. 2391 
AN ACT 
To amend title 35, United States Code, to promote 
cooperative research involving universities, the 
public sector, and private enterprises. 
OCTOBER 7, 2004 
Reported with an amendment