Family Entertainment and Copyright Act of 2005
PL 109-9 (S.167), enacted 04/27/2005

119 STAT. 218
PUBLIC LAW 109–9—APR. 27, 2005
Public Law 109–9
109th Congress
An Act
To provide for the protection of intellectual property rights, 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 ‘‘Family Entertainment and Copy-
right Act of 2005’’.
TITLE I—ARTISTS’ RIGHTS AND THEFT
PREVENTION
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Artists’ Rights and Theft Preven-
tion Act of 2005’’ or the ‘‘ART Act’’.
SEC. 102. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING 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 authorization of
the copyright owner, knowingly uses or attempts to use an audio-
visual recording device to transmit or make a copy of a motion
picture or other audiovisual work protected under title 17, or any
part thereof, from a performance 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 offense, be
imprisoned for no more than 6 years, fined under this title,
or both.
The possession by a person of an audiovisual recording device
in a motion picture exhibition facility may be considered 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 person is con-
victed of a violation of subsection (a), the court in its judgment
of conviction shall, in addition to any penalty provided, order the
forfeiture and destruction or other disposition of all unauthorized
17 USC 101 note.
Artists’ Rights
and Theft
Prevention Act
of 2005.
Family
Entertainment
and Copyright
Act of 2005.
17 USC 101 note.
Apr. 27, 2005
[S. 167]
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PUBLIC LAW 109–9—APR. 27, 2005
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.—With reasonable cause, the
owner or lessee of a motion picture exhibition facility where a
motion picture or other audiovisual work is being exhibited, the
authorized agent or employee of such owner or lessee, the licensor
of the motion picture or other audiovisual work being exhibited,
or the agent or employee of such licensor—
‘‘(1) may detain, in a reasonable manner and for a reason-
able time, any person suspected of a violation of this section
with respect to that motion picture or audiovisual work for
the purpose of questioning or summoning a law enforcement
officer; and
‘‘(2) shall not be held liable in any civil or criminal action
arising out of a detention under paragraph (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 identifies the victim of the offense and
the extent 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 offense;
‘‘(B) holders of intellectual property rights in the works
described in subparagraph (A); and
‘‘(C) the legal representatives of such producers, sellers,
and holders.
‘‘(f) 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.
‘‘(g) DEFINITIONS.—In this section, the following definitions
shall apply:
‘‘(1) TITLE 17 DEFINITIONS.—The terms ‘audiovisual work’,
‘copy’, ‘copyright owner’, ‘motion picture’, ‘motion picture exhi-
bition facility’, and ‘transmit’ have, respectively, the meanings
given those terms in section 101 of title 17.
‘‘(2) AUDIOVISUAL
RECORDING
DEVICE.—The term ‘audio-
visual 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,
regardless of whether audiovisual recording is the sole or pri-
mary purpose of the device.’’.
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PUBLIC LAW 109–9—APR. 27, 2005
(b) CLERICAL AMENDMENT.—The table of sections at the begin-
ning 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 fa-
cility.’’.
(c) DEFINITION.—Section 101 of title 17, United States Code,
is amended by inserting after the definition of ‘‘Motion pictures’’
the following: ‘‘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 copyrighted motion picture,
if such exhibition is open to the public or is made to an assembled
group of viewers outside of a normal circle of a family and its
social acquaintances.’’.
SEC. 103. CRIMINAL INFRINGEMENT OF A WORK BEING PREPARED
FOR COMMERCIAL DISTRIBUTION.
(a) PROHIBITED ACTS.—Section 506(a) of title 17, United States
Code, is amended to read as follows:
‘‘(a) CRIMINAL INFRINGEMENT.—
‘‘(1) IN GENERAL.—Any person who willfully infringes a
copyright shall be punished as provided under section 2319
of title 18, if the infringement was committed—
‘‘(A) for purposes of commercial advantage or private
financial gain;
‘‘(B) by the reproduction or distribution, including 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
‘‘(C) by the distribution of a work being prepared for
commercial distribution, by making it available on a com-
puter network accessible to members of the public, if such
person knew or should have known that the work was
intended for commercial distribution.
‘‘(2) EVIDENCE.—For purposes of this subsection, evidence
of reproduction or distribution of a copyrighted work, by itself,
shall not be sufficient to establish willful infringement of a
copyright.
‘‘(3) DEFINITION.—In this subsection, the term ‘work being
prepared for commercial distribution’ means—
‘‘(A) a computer program, a musical work, a motion
picture or other audiovisual work, or a sound recording,
if, at the time of unauthorized distribution—
‘‘(i) the copyright owner has a reasonable expecta-
tion of commercial distribution; and
‘‘(ii) the copies or phonorecords of the work have
not been commercially distributed; or
‘‘(B) a motion picture, if, at the time of unauthorized
distribution, the motion picture—
‘‘(i) has been made available for viewing in a
motion picture exhibition facility; and
‘‘(ii) has not been made available in copies for
sale to the general public in the United States in
a format intended to permit viewing outside a motion
picture exhibition facility.’’.
(b) CRIMINAL PENALTIES.—Section 2319 of title 18, United
States Code, is amended—
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(1) in subsection (a)—
(A) by striking ‘‘Whoever’’ and inserting ‘‘Any person
who’’; and
(B) by striking ‘‘and (c) of this section’’ and inserting
‘‘, (c), and (d)’’;
(2) in subsection (b), by striking ‘‘section 506(a)(1)’’ and
inserting ‘‘section 506(a)(1)(A)’’;
(3) in subsection (c), by striking ‘‘section 506(a)(2) of title
17, United States Code’’ and inserting ‘‘section 506(a)(1)(B)
of title 17’’;
(4) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(5) by adding after subsection (c) the following:
‘‘(d) Any person who commits an offense under section
506(a)(1)(C) of title 17—
‘‘(1) shall be imprisoned not more than 3 years, fined under
this title, or both;
‘‘(2) shall be imprisoned not more than 5 years, fined under
this title, or both, if the offense was committed for purposes
of commercial advantage or private financial gain;
‘‘(3) shall be imprisoned not more than 6 years, fined under
this title, or both, if the offense is a second or subsequent
offense; and
‘‘(4) shall be imprisoned not more than 10 years, fined
under this title, or both, if the offense is a second or subsequent
offense under paragraph (2).’’; and
(6) in subsection (f), as redesignated—
(A) in paragraph (1), by striking ‘‘and’’ at the end;
(B) in paragraph (2), by striking the period at the
end and inserting a semicolon; and
(C) by adding at the end the following:
‘‘(3) the term ‘financial gain’ has the meaning given the
term in section 101 of title 17; and
‘‘(4) the term ‘work being prepared for commercial distribu-
tion’ has the meaning given the term in section 506(a) of
title 17.’’.
SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK BEING
PREPARED FOR COMMERCIAL DISTRIBUTION.
(a) 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 COMMER-
CIAL DISTRIBUTION.—
‘‘(1) RULEMAKING.—Not later than 180 days after the date
of enactment of this subsection, the Register 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 established 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 a work preregistered under
this subsection, the applicant shall submit to the Copyright
Office—
Deadlines.
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‘‘(A) an application for registration of the work;
‘‘(B) a deposit; and
‘‘(C) the applicable fee.
‘‘(4) EFFECT OF UNTIMELY APPLICATION.—An action under
this chapter for infringement of a work preregistered under
this subsection, in a case in which the infringement commenced
no later than 2 months after the first publication of the work,
shall be dismissed if the items described in paragraph (3)
are not submitted 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.’’.
(b) INFRINGEMENT ACTIONS.—Section 411(a) of title 17, United
States Code, is amended by inserting ‘‘preregistration or’’ after
‘‘shall be instituted until’’.
(c) EXCLUSION.—Section 412 of title 17, United States Code,
is amended by inserting after ‘‘section 106A(a)’’ the following: ‘‘,
an action for infringement of the copyright of a work that has
been preregistered under section 408(f) before the commencement
of the infringement and that has an effective date of registration
not later than the earlier of 3 months after the first publication
of the work or 1 month after the copyright owner has learned
of the infringement,’’.
SEC. 105. FEDERAL SENTENCING GUIDELINES.
(a) REVIEW AND AMENDMENT.—Not later than 180 days after
the date of enactment of this Act, the United States Sentencing
Commission, pursuant to its authority under section 994 of title
28, United States Code, and in accordance with this section, shall
review and, if appropriate, amend the Federal sentencing guidelines
and policy statements applicable to persons convicted of intellectual
property rights crimes, including any offense under—
(1) section 506, 1201, or 1202 of title 17, United States
Code; or
(2) section 2318, 2319, 2319A, 2319B, or 2320 of title 18,
United States Code.
(b) AUTHORIZATION.—The United States Sentencing Commis-
sion may amend the Federal sentencing guidelines in accordance
with the procedures set forth in section 21(a) of the Sentencing
Act of 1987 (28 U.S.C. 994 note) as though the authority under
that section had not expired.
(c) RESPONSIBILITIES OF UNITED STATES SENTENCING COMMIS-
SION.—In carrying out this section, the United States Sentencing
Commission shall—
(1) take all appropriate measures to ensure that the Federal
sentencing guidelines and policy statements described in sub-
section (a) are sufficiently stringent to deter, and adequately
reflect the nature of, intellectual property rights crimes;
(2) determine whether to provide a sentencing enhancement
for those convicted of the offenses described in subsection (a),
if the conduct involves the display, performance, publication,
reproduction, or distribution of a copyrighted work before it
has been authorized by the copyright owner, whether in the
media format used by the infringing party or in any other
media format;
Deadline.
28 USC 994 note.
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PUBLIC LAW 109–9—APR. 27, 2005
(3) determine whether the scope of ‘‘uploading’’ set forth
in application note 3 of section 2B5.3 of the Federal sentencing
guidelines is adequate to address the loss attributable to people
who, without authorization, broadly distribute copyrighted
works over the Internet; and
(4) determine whether the sentencing guidelines and policy
statements applicable to the offenses described in subsection
(a) adequately reflect any harm to victims from copyright
infringement if law enforcement authorities cannot determine
how many times copyrighted material has been reproduced
or distributed.
TITLE II—EXEMPTION FROM INFRINGE-
MENT 
FOR 
SKIPPING 
AUDIO 
AND
VIDEO 
CONTENT 
IN 
MOTION 
PIC-
TURES
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Family Movie Act of 2005’’.
SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO
AND VIDEO CONTENT IN MOTION PICTURES.
(a) IN GENERAL.—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 following:
‘‘(11) the making imperceptible, by or at the direction of
a member of a private household, of limited 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 creation
or provision of a computer program or other technology that
enables such making imperceptible and that is designed and
marketed to be used, at the direction of a member of a private
household, for such making imperceptible, if no fixed copy
of the altered version of the motion picture is created by such
computer program or other technology.’’; and
(4) by adding at the end the following:
‘‘For purposes of paragraph (11), the term ‘making impercep-
tible’ 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.
‘‘Nothing in paragraph (11) shall be construed to imply further
rights under section 106 of this title, or to have any effect on
defenses or limitations on rights granted under any other section
of this title or under any other paragraph of this section.’’.
(b) 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 described in
paragraph (11) of section 110 of title 17, United States Code, and
who complies with the requirements set forth in that paragraph
17 USC 101 note.
Family Movie Act
of 2005.
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119 STAT. 224
PUBLIC LAW 109–9—APR. 27, 2005
is not liable on account of such conduct for a violation of any
right under this Act. This subparagraph does not preclude liability,
nor shall it be construed to restrict the defenses or limitations
on rights granted under this Act, 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 technology that
enables the making of limited portions of audio or video content
of a motion picture imperceptible as described 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 perform-
ance intended by the director or copyright holder of the motion
picture. The limitations on liability in subparagraph (A) and this
subparagraph 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 provide notice
shall apply only with respect to technology manufactured after
the end of the 180-day period beginning on the date of the enact-
ment of the Family Movie Act of 2005.
‘‘(D) Any failure by a manufacturer, licensee, or licensor of
technology to qualify for the exemption under subparagraphs (A)
and (B) shall not be construed to create an inference that any
such party that engages in conduct described in paragraph (11)
of section 110 of title 17, United States Code, is liable for trademark
infringement by reason of such conduct.’’.
(c) DEFINITION.—In this section, the term ‘‘Trademark 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 pur-
poses’’, approved July 5, 1946 (15 U.S.C. 1051 et seq.).
TITLE III—NATIONAL FILM
PRESERVATION
Subtitle A—Reauthorization of the
National Film Preservation Board
SEC. 301. SHORT TITLE.
This subtitle may be cited as the ‘‘National Film Preservation
Act of 2005’’.
SEC. 302. REAUTHORIZATION AND AMENDMENT.
(a) DUTIES OF THE LIBRARIAN OF CONGRESS.—Section 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 approved copy’’;
(B) by striking ‘‘film copies’’ each place that term
appears and inserting ‘‘film or other approved copies’’; and
2 USC 179l note.
National Film
Preservation Act
of 2005.
Applicability.
Effective date.
Notice.
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119 STAT. 225
PUBLIC LAW 109–9—APR. 27, 2005
(C) in the third sentence, by striking ‘‘copyrighted’’
and inserting ‘‘copyrighted, mass distributed, broadcast,
or published’’; and
(2) by adding at the end the following:
‘‘(c) COORDINATION
OF PROGRAM WITH OTHER COLLECTION,
PRESERVATION, AND ACCESSIBILITY ACTIVITIES.—In carrying out the
comprehensive national film preservation program for motion pic-
tures established under the National Film Preservation Act of 1992,
the Librarian, in consultation with the Board established pursuant
to section 104, shall—
‘‘(1) carry out activities to make films included in the
National Film registry more broadly accessible for research
and educational purposes, and to generate 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 necessary to ensure that
it addresses technological advances in the preservation and
storage of, and access to film collections in multiple formats;
and
‘‘(3) wherever possible, undertake expanded initiatives 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 inserting ‘‘22’’;
(2) in subsection (a)(2) by striking ‘‘three’’ and inserting
‘‘5’’;
(3) in subsection (d) by striking ‘‘11’’ and inserting ‘‘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 expenses, including
per diem in lieu of subsistence, in accordance 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. 179p) is amended by adding
at the end the following:
‘‘(e) NATIONAL
AUDIO-VISUAL
CONSERVATION
CENTER.—The
Librarian shall utilize the National Audio-Visual 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 manner, and disseminated to researchers,
scholars, and the public as may be appropriate in accordance with—
‘‘(1) title 17, United States Code; and
‘‘(2) the terms of any agreements between the Librarian
and persons who hold copyrights to such audiovisual works.’’.
(d) USE OF SEAL.—Section 107(a) of the National Film Preserva-
tion Act of 1996 (2 U.S.C. 179q(a)) is amended—
(1) in paragraph (1), by inserting ‘‘in any format’’ after
‘‘or any copy’’; and
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119 STAT. 226
PUBLIC LAW 109–9—APR. 27, 2005
(2) in paragraph (2), by striking ‘‘or film copy’’ and inserting
‘‘in any format’’.
(e) EFFECTIVE
DATE.—Section 113 of the National Film
Preservation Act of 1996 (2 U.S.C. 179w) is amended by striking
‘‘7’’ and inserting ‘‘13’’.
Subtitle B—Reauthorization of the
National Film Preservation Foundation
SEC. 311. SHORT TITLE.
This subtitle may be cited as the ‘‘National Film Preservation
Foundation Reauthorization Act of 2005’’.
SEC. 312. 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 appointed.’’.
(b) POWERS.—Section 151705 of title 36, United States Code,
is amended in subsection (b) by striking ‘‘District 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 ‘‘District of Columbia’’.
(d) AUTHORIZATION OF APPROPRIATIONS.—Section 151711 of title
36, United States Code, is amended by striking subsections (a)
and (b) and inserting the following:
‘‘(a) AUTHORIZATION OF APPROPRIATIONS.—There are authorized
to be appropriated to the Library of Congress amounts necessary
to carry out this chapter, not to exceed $530,000 for each of the
fiscal years 2005 through 2009. These amounts are to be made
available to the corporation to match any private contributions
(whether in currency, services, or property) made to the corporation
by private persons and State and local governments.
‘‘(b) LIMITATION
RELATED
TO
ADMINISTRATIVE
EXPENSES.—
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 IV—PRESERVATION OF ORPHAN
WORKS
SEC. 401. SHORT TITLE.
This title may be cited as the ‘‘Preservation of Orphan Works
Act’’.
17 USC 101 note.
Preservation of
Orphan Works
Act.
36 USC 101 note.
National Film
Preservation
Foundation
Reauthorization
Act of 2005.
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119 STAT. 227
PUBLIC LAW 109–9—APR. 27, 2005
LEGISLATIVE HISTORY—S. 167:
HOUSE REPORTS: No. 109–33, Pt. 1 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 151 (2005):
Feb. 1, considered and passed Senate.
Apr. 19, considered and passed House.
SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES
AND ARCHIVES.
Section 108(i) of title 17, United States Code, is amended by
striking ‘‘(b) and (c)’’ and inserting ‘‘(b), (c), and (h)’’.
Approved April 27, 2005.
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