H. R. 3632
One Hundred Eighth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twentieth day of January, two thousand and four
An Act
To prevent and punish counterfeiting of copyrighted copies and phonorecords, and
for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Intellectual Property Protection
and Courts Amendments Act of 2004’’.
TITLE I—ANTI-COUNTERFEITING
PROVISIONS
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Anti-counterfeiting Amendments
Act of 2004’’.
SEC. 102. PROHIBITION AGAINST TRAFFICKING IN COUNTERFEIT
COMPONENTS.
(a) IN GENERAL.—Section 2318 of title 18, United States Code,
is amended—
(1) by striking the section heading and inserting the fol-
lowing:
‘‘§ 2318. Trafficking in counterfeit labels, illicit labels, or
counterfeit documentation or packaging’’;
(2) by striking subsection (a) and inserting the following:
‘‘(a) Whoever, in any of the circumstances described in sub-
section (c), knowingly traffics in—
‘‘(1) a counterfeit label or illicit label affixed to, enclosing,
or accompanying, or designed to be affixed to, enclose, or
accompany—
‘‘(A) a phonorecord;
‘‘(B) a copy of a computer program;
‘‘(C) a copy of a motion picture or other audiovisual
work;
‘‘(D) a copy of a literary work;
‘‘(E) a copy of a pictorial, graphic, or sculptural work;
‘‘(F) a work of visual art; or
‘‘(G) documentation or packaging; or
‘‘(2) counterfeit documentation or packaging,
shall be fined under this title or imprisoned for not more than
5 years, or both.’’;
(3) in subsection (b)—
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(A) in paragraph (2), by striking ‘‘and’’ after the semi-
colon;
(B) in paragraph (3)—
(i) by striking ‘‘and ‘audiovisual work’ have’’ and
inserting the following: ‘‘ ‘audiovisual work’, ‘literary
work’, ‘pictorial, graphic, or sculptural work’, ‘sound
recording’, ‘work of visual art’, and ‘copyright owner’
have’’; and
(ii) by striking the period at the end and inserting
a semicolon; and
(C) by adding at the end the following:
‘‘(4) the term ‘illicit label’ means a genuine certificate,
licensing document, registration card, or similar labeling
component—
‘‘(A) that is used by the copyright owner to verify
that a phonorecord, a copy of a computer program, a copy
of a motion picture or other audiovisual work, a copy of
a literary work, a copy of a pictorial, graphic, or sculptural
work, a work of visual art, or documentation or packaging
is not counterfeit or infringing of any copyright; and
‘‘(B) that is, without the authorization of the copyright
owner—
‘‘(i) distributed or intended for distribution not in
connection with the copy, phonorecord, or work of
visual art to which such labeling component was
intended to be affixed by the respective copyright
owner; or
‘‘(ii) in connection with a genuine certificate or
licensing document, knowingly falsified in order to des-
ignate a higher number of licensed users or copies
than authorized by the copyright owner, unless that
certificate or document is used by the copyright owner
solely for the purpose of monitoring or tracking the
copyright owner’s distribution channel and not for the
purpose of verifying that a copy or phonorecord is
noninfringing;
‘‘(5) the term ‘documentation or packaging’ means docu-
mentation or packaging, in physical form, for a phonorecord,
copy of a computer program, copy of a motion picture or other
audiovisual work, copy of a literary work, copy of a pictorial,
graphic, or sculptural work, or work of visual art; and
‘‘(6) the term ‘counterfeit documentation or packaging’
means documentation or packaging that appears to be genuine,
but is not.’’;
(4) in subsection (c)—
(A) by striking paragraph (3) and inserting the fol-
lowing:
‘‘(3) the counterfeit label or illicit label is affixed to,
encloses, or accompanies, or is designed to be affixed to, enclose,
or accompany—
‘‘(A) a phonorecord of a copyrighted sound recording
or copyrighted musical work;
‘‘(B) a copy of a copyrighted computer program;
‘‘(C) a copy of a copyrighted motion picture or other
audiovisual work;
‘‘(D) a copy of a literary work;
‘‘(E) a copy of a pictorial, graphic, or sculptural work;
H. R. 3632—3
‘‘(F) a work of visual art; or
‘‘(G) copyrighted documentation or packaging; or’’; and
(B) in paragraph (4), by striking ‘‘for a computer pro-
gram’’; and
(5) in subsection (d)—
(A) by inserting ‘‘or illicit labels’’ after ‘‘counterfeit
labels’’ each place it appears; and
(B) by inserting before the period at the end the fol-
lowing: ‘‘, and of any equipment, device, or material used
to manufacture, reproduce, or assemble the counterfeit
labels or illicit labels’’.
(b) CIVIL REMEDIES.—Section 2318 of title 18, United States
Code, is further amended by adding at the end the following:
‘‘(f) CIVIL REMEDIES.—
‘‘(1) IN GENERAL.—Any copyright owner who is injured,
or is threatened with injury, by a violation of subsection (a)
may bring a civil action in an appropriate United States district
court.
‘‘(2) DISCRETION OF COURT.—In any action brought under
paragraph (1), the court—
‘‘(A) may grant 1 or more temporary or permanent
injunctions on such terms as the court determines to be
reasonable to prevent or restrain a violation of subsection
(a);
‘‘(B) at any time while the action is pending, may
order the impounding, on such terms as the court deter-
mines to be reasonable, of any article that is in the custody
or control of the alleged violator and that the court has
reasonable cause to believe was involved in a violation
of subsection (a); and
‘‘(C) may award to the injured party—
‘‘(i) reasonable attorney fees and costs; and
‘‘(ii)(I) actual damages and any additional profits
of the violator, as provided in paragraph (3); or
‘‘(II) statutory damages, as provided in paragraph
(4).
‘‘(3) ACTUAL DAMAGES AND PROFITS.—
‘‘(A) IN
GENERAL.—The injured party is entitled to
recover—
‘‘(i) the actual damages suffered by the injured
party as a result of a violation of subsection (a), as
provided in subparagraph (B) of this paragraph; and
‘‘(ii) any profits of the violator that are attributable
to a violation of subsection (a) and are not taken into
account in computing the actual damages.
‘‘(B) CALCULATION OF DAMAGES.—The court shall cal-
culate actual damages by multiplying—
‘‘(i) the value of the phonorecords, copies, or works
of visual art which are, or are intended to be, affixed
with, enclosed in, or accompanied by any counterfeit
labels, illicit labels, or counterfeit documentation or
packaging, by
‘‘(ii) the number of phonorecords, copies, or works
of visual art which are, or are intended to be, affixed
with, enclosed in, or accompanied by any counterfeit
labels, illicit labels, or counterfeit documentation or
packaging.
H. R. 3632—4
‘‘(C) DEFINITION.—For purposes of this paragraph, the
‘value’ of a phonorecord, copy, or work of visual art is—
‘‘(i) in the case of a copyrighted sound recording
or copyrighted musical work, the retail value of an
authorized phonorecord of that sound recording or
musical work;
‘‘(ii) in the case of a copyrighted computer program,
the retail value of an authorized copy of that computer
program;
‘‘(iii) in the case of a copyrighted motion picture
or other audiovisual work, the retail value of an author-
ized copy of that motion picture or audiovisual work;
‘‘(iv) in the case of a copyrighted literary work,
the retail value of an authorized copy of that literary
work;
‘‘(v) in the case of a pictorial, graphic, or sculptural
work, the retail value of an authorized copy of that
work; and
‘‘(vi) in the case of a work of visual art, the retail
value of that work.
‘‘(4) STATUTORY DAMAGES.—The injured party may elect,
at any time before final judgment is rendered, to recover,
instead of actual damages and profits, an award of statutory
damages for each violation of subsection (a) in a sum of not
less than $2,500 or more than $25,000, as the court considers
appropriate.
‘‘(5) SUBSEQUENT VIOLATION.—The court may increase an
award of damages under this subsection by 3 times the amount
that would otherwise be awarded, as the court considers appro-
priate, if the court finds that a person has subsequently violated
subsection (a) within 3 years after a final judgment was entered
against that person for a violation of that subsection.
‘‘(6) LIMITATION ON ACTIONS.—A civil action may not be
commenced under section unless it is commenced within 3
years after the date on which the claimant discovers the viola-
tion of subsection (a).’’.
(c) CONFORMING AMENDMENT.—The item relating to section
2318 in the table of sections for chapter 113 of title 18, United
States Code, is amended to read as follows:
‘‘2318. Trafficking in counterfeit labels, illicit labels, or counterfeit documentation
or packaging.’’.
SEC. 103. OTHER RIGHTS NOT AFFECTED.
(a) CHAPTERS 5 AND 12 OF TITLE 17; ELECTRONIC TRANS-
MISSIONS.—The amendments made by this title—
(1) shall not enlarge, diminish, or otherwise affect any
liability or limitations on liability under sections 512, 1201
or 1202 of title 17, United States Code; and
(2) shall not be construed to apply—
(A) in any case, to the electronic transmission of a
genuine certificate, licensing document, registration card,
similar labeling component, or documentation or packaging
described in paragraph (4) or (5) of section 2318(b) of
title 18, United States Code, as amended by this title;
and