S 1044 IS

105th CONGRESS

1st Session

S. 1044

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.

IN THE SENATE OF THE UNITED STATES

July 21, 1997

Mr. LEAHY (for himself and Mr. KYL) introduced the following bill; which was

read twice and referred to the Committee on the Judiciary

A BILL

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.

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 `Criminal Copyright Improvement Act of 1997'.

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 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 10 or more copies, of 1 or more

copyrighted works, and the total retail value of the copyrighted work or

the total retail value of the copies of such work is $5,000 or more,

shall be punished as provided under section 2319 of title 18.'.

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

(d) CRIMINAL INFRINGEMENT OF A COPYRIGHT- Section 2319 of title 18, United

States Code, is amended--

(1) 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';

(B) in paragraph (1)--

(i) by inserting `including by electronic means,' after `if the

offense consists of the reproduction or distribution,'; and

(ii) by striking `with a retail value of more than $2,500' and

inserting `which have a total retail value of more than $5,000';

and

subsection'; and

(2) 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--

`(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, including by electronic means, during any

180-day period, of 10 or more copies of 1 or more copyrighted works, and

the total retail value of the copyrighted work or the total retail value

of the copies of such work is $10,000 or more;

`(2) 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, including by electronic means during any

180-day period, of 10 or more copies of 1 or more copyrighted works, and

the total retail value of the copyrighted works or the total retail

value of the copies of such works is $5,000 or more; and

`(3) 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 felony offense under paragraph (1).

`(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 subsection (d) as subsection (f) and transferring

such subsection to the end of the section;

(2) by redesignating subsection (e) as subsection (d); and

(3) by inserting after subsection (d) (as redesignated by paragraph (2)

of this subsection) the following:

`(e)(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) IN GENERAL- 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)--

(A) is sufficiently stringent to deter such a crime;

(B) adequately reflects the additional considerations set forth in

paragraph (2) of this subsection; and

aggravating factors.

(2) IMPLEMENTATION- In implementing paragraph (1), the Sentencing

Commission shall ensure that the guidelines provide for consideration of

the retail value of the legitimate items that are infringed upon and the

quantity of items so infringed.

END