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NO ELECTRONIC THEFT (NET) ACT

[[Page 111 STAT. 2678]]

Public Law 105-147

105th Congress

An Act

To amend the provisions of titles 17 and 18, United States Code, to

provide greater copyright protection by amending criminal copyright

infringement provisions, and for other purposes. <<NOTE: Dec. 16,

1997 - [H.R. 2265]>>

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, <<NOTE: No Electronic

Theft (NET) Act. 18 USC 2311 note.>>

SECTION 1. SHORT TITLE.

This Act may be cited as the ``No Electronic Theft (NET) Act''.

SEC. 2. CRIMINAL INFRINGEMENT OF COPYRIGHTS.

(a) Definition of Financial Gain.--Section 101 of title 17, United

States Code, is amended by inserting after the undesignated paragraph

relating to the term ``display'', the following new paragraph:

``The term `financial gain' includes receipt, or expectation

of receipt, of anything of value, including the receipt of other

copyrighted works.''.

(b) Criminal Offenses.--Section 506(a) of title 17, United States

Code, is amended to read as follows:

``(a) Criminal Infringement.--Any person who infringes a copyright

willfully either--

``(1) for purposes of commercial advantage or private

financial gain, or

``(2) 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,

shall be punished as provided under section 2319 of title 18, United

States Code. For purposes of this subsection, evidence of reproduction

or distribution of a copyrighted work, by itself, shall not be

sufficient to establish willful infringement.''.

United States Code, is amended by striking ``three'' and inserting

``5''.

(d) Criminal Infringement of a Copyright.--Section 2319 of title 18,

United States Code, is amended--

(1) in subsection (a), by striking ``subsection (b)'' and

inserting ``subsections (b) and (c)'';

(2) in subsection (b)--

(A) in the matter preceding paragraph (1), by

striking ``subsection (a) of this section'' and

inserting ``section 506(a)(1) of title 17''; and

(B) in paragraph (1)--

(i) by inserting ``including by electronic

means,'' after ``if the offense consists of the

reproduction or distribution,''; and

[[Page 111 STAT. 2679]]

(ii) by striking ``with a retail value of more

than $2,500'' and inserting ``which have a total

retail value of more than $2,500''; and

(3) by redesignating subsection (c) as subsection (e) and

inserting after subsection (b) the following:

``(c) Any person who commits an offense under section 506(a)(2) of

title 17, United States Code--

``(1) shall be imprisoned not more than 3 years, or fined in

the amount set forth in this title, or both, if the offense

consists of the reproduction or distribution of 10 or more

copies or phonorecords of 1 or more copyrighted works, which

have a total retail value of $2,500 or more;

``(2) shall be imprisoned not more than 6 years, or fined in

the amount set forth in this title, or both, if the offense is a

second or subsequent offense under paragraph (1); and

``(3) shall be imprisoned not more than 1 year, or fined in

the amount set forth in this title, or both, if the offense

consists of the reproduction or distribution of 1 or more copies

or phonorecords of 1 or more copyrighted works, which have a

total retail value of more than $1,000.

``(d)(1) During preparation of the presentence report pursuant to

Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the

offense shall be permitted to submit, and the probation officer shall

receive, 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) Persons permitted to submit victim impact statements shall

include--

``(A) producers and sellers of legitimate works affected by

conduct involved in the offense;

``(B) holders of intellectual property rights in such works;

and

``(C) the legal representatives of such producers, sellers,

and holders.''.

(e) Unauthorized Fixation and Trafficking of Live Musical

Performances.--Section 2319A of title 18, United States Code, is

amended--

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

(e) and (f ), respectively; and

(2) by inserting after subsection (c) the following:

``(d) Victim Impact Statement.--(1) During preparation of the

presentence report pursuant to Rule 32(c) of the Federal Rules of

Criminal Procedure, victims of the offense shall be permitted to submit,

and the probation officer shall receive, 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) Persons permitted to submit victim impact statements shall

include--

``(A) producers and sellers of legitimate works affected by

conduct involved in the offense;

``(B) holders of intellectual property rights in such works;

and

``(C) the legal representatives of such producers, sellers,

and holders.''.

(f ) Trafficking in Counterfeit Goods or Services.--Section 2320 of

title 18, United States Code, is amended--

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

(e) and (f ), respectively; and

(2) by inserting after subsection (c) the following:

[[Page 111 STAT. 2680]]

``(d)(1) During preparation of the presentence report pursuant to

Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the

offense shall be permitted to submit, and the probation officer shall

receive, 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) Persons permitted to submit victim impact statements shall

include--

``(A) producers and sellers of legitimate goods or services

affected by conduct involved in the offense;

``(B) holders of intellectual property rights in such goods

or services; and

``(C) the legal representatives of such producers, sellers,

and holders.''.

(g) Directive to Sentencing Commission.--(1) Under the authority of

the Sentencing Reform Act of 1984 (Public Law 98-473; 98 Stat. 1987) and

section 21 of the Sentencing Act of 1987 (Public Law 100-182; 101 Stat.

1271; 18 U.S.C. 994 note) (including the authority to amend the

sentencing guidelines and policy statements), the United States

Sentencing Commission shall ensure that the applicable guideline range

for a defendant convicted of a crime against intellectual property

(including offenses set forth at section 506(a) of title 17, United

States Code, and sections 2319, 2319A, and 2320 of title 18, United

States Code) is sufficiently stringent to deter such a crime and to

adequately reflect the additional considerations set forth in paragraph

(2) of this subsection.

(2) In implementing paragraph (1), the Sentencing Commission shall

ensure that the guidelines provide for consideration of the retail value

and quantity of the items with respect to which the crime against

intellectual property was committed.

SEC. 3. INFRINGEMENT BY UNITED STATES.

Section 1498(b) of title 28, United States Code, is amended by

striking ``remedy of the owner of such copyright shall be by action''

and inserting ``action which may be brought for such infringement shall

be an action by the copyright owner''.

Approved December 16, 1997.

LEGISLATIVE HISTORY--H.R. 2265:

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HOUSE REPORTS: No. 105-339 (Comm. on the Judiciary).

CONGRESSIONAL RECORD, Vol. 143 (1997):

Nov. 4, considered and passed House.

Nov. 13, considered and passed Senate.

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