MESSAGE
| DATE | 2002-07-31 |
| FROM | Ruben I Safir
|
| SUBJECT | Subject: [hangout] [wynkoop@wynn.com: S2395]
|
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Date: Wed, 31 Jul 2002 01:38:57 -0400
From: Ruben I Safir
To: hangout-at-nylxs.com
Subject: [hangout] [wynkoop-at-wynn.com: S2395]
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Greeting-
Below please find the full text of S2395 as it now stands. This is
the second version on record as found in the senate web records. At first
glance it is very confussing. The hard part to get by is the description
of the changes since the last version. Instead of using REDLINING like
lawyers it seems that congress gives a description of the changes at the
top of the document before the changed document is read. What you need to read
is part that starts the actual bill as it now stands. You can find that
by looking for
SECTION 1. SHORT TITLE.
It is about 1/2 way down the dodument. vi users can find it quickly with
/^SECTION 1. SHORT TITLE.
as the search term.
-Brett
----------------------------cut here---------------------------------------
S 2395 RS
Calendar No. 500
107th CONGRESS
2d Session
S. 2395
To prevent and punish counterfeiting and copyright piracy, and for other
purposes.
IN THE SENATE OF THE UNITED STATES
April 30, 2002
Mr. BIDEN (for himself, Mr. ALLEN, Mr. HOLLINGS, Mrs. BOXER, Mrs. MURRAY,
Mr. SMITH of Oregon, Mr. NELSON of Nebraska, Mr. DORGAN, Mr. CONRAD, Mr.
HATCH, Mr. LEAHY, Mrs. FEINSTEIN, Mr. DEWINE, and Mr. THURMOND) introduced
the following bill; which was read twice and referred to the Committee on
the Judiciary
July 18, 2002
Reported by Mr. LEAHY, with an amendment
[Strike out all after the enacting clause and insert the part printed in
italic]
------------------------------------------------------------------------
A BILL
To prevent and punish counterfeiting and copyright piracy, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
[Struck out->] SECTION 1. SHORT TITLE. [<-Struck out]
[Struck out->] This Act may be cited as the `Anticounterfeiting
Amendments of 2002'. [<-Struck out]
[Struck out->] SEC. 2. FINDINGS. [<-Struck out]
[Struck out->] Congress finds that-- [<-Struck out]
[Struck out->] (1) American innovation, and the protection of that
innovation by the government, has been a critical component of the
economic growth of this Nation throughout the history of the
Nation; [<-Struck out]
[Struck out->] (2) copyright-based industries represent one of the
most valuable economic assets of this country, contributing over 5
percent of the gross domestic product of the United States and
creating significant job growth and tax revenues; [<-Struck out]
[Struck out->] (3) the American intellectual property sector
employs approximately 4,300,000 people, representing over 3
percent of total United States employment; [<-Struck out]
[Struck out->] (4) the proliferation of organized criminal
counterfeiting enterprises threatens the economic growth of United
States copyright industries; [<-Struck out]
[Struck out->] (5) the American intellectual property sector has
invested millions of dollars to develop highly sophisticated
authentication features that assist consumers and law enforcement
in distinguishing genuine intellectual property products and
packaging from counterfeits; [<-Struck out]
[Struck out->] (6) in order to thwart these industry efforts,
counterfeiters traffic in, and tamper with, genuine authentication
features, for example, by obtaining genuine authentication
features through illicit means and then commingling these features
with counterfeit software or packaging; [<-Struck out]
[Struck out->] (7) Federal law does not provide adequate civil and
criminal remedies to combat tampering activities that directly
facilitate counterfeiting crimes; and [<-Struck out]
[Struck out->] (8) in order to strengthen Federal enforcement
against counterfeiting of copyrighted works, Congress must enact
legislation that-- [<-Struck out]
[Struck out->] (A) prohibits trafficking in, and tampering
with, authentication features of copyrighted works; and
[<-Struck out]
[Struck out->] (B) permits aggrieved parties an appropriate
civil cause of action. [<-Struck out]
[Struck out->] SEC. 3. PROHIBITION AGAINST TRAFFICKING IN ILLICIT
AUTHENTICATION FEATURES. [<-Struck out]
[Struck out->] (a) IN GENERAL- Section 2318 of title 18, United States
Code, is amended-- [<-Struck out]
[Struck out->] (1) by striking the heading and inserting
`Trafficking in counterfeit labels, illicit authentication
features, or counterfeit documentation or packaging'; [<-Struck
out]
[Struck out->] (2) by striking subsection (a) and inserting the
following: [<-Struck out]
[Struck out->] `(a) Whoever, in any of the circumstances described in
subsection (c), knowingly traffics in-- [<-Struck out]
[Struck out->] `(1) a counterfeit label affixed to, or designed to
be affixed to-- [<-Struck out]
[Struck out->] `(A) a phonorecord; [<-Struck out]
[Struck out->] `(B) a copy of a computer program; [<-Struck
out]
[Struck out->] `(C) a copy of a motion picture or other
audiovisual work; or [<-Struck out]
[Struck out->] `(D) documentation or packaging; [<-Struck
out]
[Struck out->] `(2) an illicit authentication feature affixed to
or embedded in, or designed to be affixed to or embedded in--
[<-Struck out]
[Struck out->] `(A) a phonorecord; [<-Struck out]
[Struck out->] `(B) a copy of a computer program; [<-Struck
out]
[Struck out->] `(C) a copy of a motion picture or other
audiovisual work; or [<-Struck out]
[Struck out->] `(D) documentation or packaging; or [<-Struck
out]
[Struck out->] `(3) counterfeit documentation or packaging,
[<-Struck out]
[Struck out->] shall be fined under this title or imprisoned for not
more than 5 years, or both.'; [<-Struck out]
[Struck out->] (3) in subsection (b)-- [<-Struck out]
[Struck out->] (A) in paragraph (2), by striking `and' at the
end; [<-Struck out]
[Struck out->] (B) in paragraph (3)-- [<-Struck out]
[Struck out->] (i) by striking `and `audiovisual work'
have' and inserting the following: `, `audiovisual
work', and `copyright owner' have'; and [<-Struck out]
[Struck out->] (ii) by striking the period at the end
and inserting a semicolon; and [<-Struck out]
[Struck out->] (C) by adding at the end the following:
[<-Struck out]
[Struck out->] `(4) the term `authentication feature' means any
hologram, watermark, certification, symbol, code, image, sequence
of numbers or letters, or other physical feature that either
individually or in combination with another feature is used by the
respective copyright owner to verify that a phonorecord, a copy of
a computer program, a copy of a motion picture or other
audiovisual work, or documentation or packaging is not counterfeit
or otherwise infringing of any copyright; [<-Struck out]
[Struck out->] `(5) the term `documentation or packaging' means
documentation or packaging for a phonorecord, copy of a computer
program, or copy of a motion picture or other audiovisual work;
and [<-Struck out]
[Struck out->] `(6) the term `illicit authentication feature'
means an authentication feature, that-- [<-Struck out]
[Struck out->] `(A) without the authorization of the
respective copyright owner has been tampered with or altered
so as to facilitate the reproduction or distribution of--
[<-Struck out]
[Struck out->] `(i) a phonorecord; [<-Struck out]
[Struck out->] `(ii) a copy of a computer program;
[<-Struck out]
[Struck out->] `(iii) a copy of a motion picture or
other audiovisual work; or [<-Struck out]
[Struck out->] `(iv) documentation or packaging;
[<-Struck out]
[Struck out->] in violation of the rights of the copyright
owner under title 17; [<-Struck out]
[Struck out->] `(B) is genuine, but has been distributed, or
is intended for distribution, without the authorization of
the respective copyright owner; or [<-Struck out]
[Struck out->] `(C) appears to be genuine, but is not.';
[<-Struck out]
[Struck out->] (4) in subsection (c)-- [<-Struck out]
[Struck out->] (A) by striking paragraph (3) and inserting
the following: [<-Struck out]
[Struck out->] `(3) the counterfeit label or illicit
authentication feature is affixed to, is embedded in, or encloses,
or is designed to be affixed to, to be embedded in, or to
enclose-- [<-Struck out]
[Struck out->] `(A) a phonorecord of a copyrighted sound
recording; [<-Struck out]
[Struck out->] `(B) a copy of a copyrighted computer program;
[<-Struck out]
[Struck out->] `(C) a copy of a copyrighted motion picture or
other audiovisual work; or [<-Struck out]
[Struck out->] `(D) documentation or packaging; or'; and
[<-Struck out]
[Struck out->] (B) in paragraph (4), by striking `for a
computer program'; [<-Struck out]
[Struck out->] (5) in subsection (d)-- [<-Struck out]
[Struck out->] (A) by inserting `or illicit authentication
features' after `counterfeit labels' each place it appears;
[<-Struck out]
[Struck out->] (B) by inserting `or illicit authentication
features' after `such labels'; and [<-Struck out]
[Struck out->] (C) by inserting before the period at the end
the following: `, and of any equipment, device, or materials
used to manufacture, reproduce, or assemble the counterfeit
labels or illicit authentication features'; and [<-Struck
out]
[Struck out->] (6) by adding at the end the following: [<-Struck
out]
[Struck out->] `(f) CIVIL REMEDIES FOR VIOLATION- [<-Struck out]
[Struck out->] `(1) IN GENERAL- Any copyright owner who is injured
by a violation of this section or is threatened with injury, may
bring a civil action in an appropriate United States district
court. [<-Struck out]
[Struck out->] `(2) DISCRETION OF COURT- In any action brought
under paragraph (1), the court-- [<-Struck out]
[Struck out->] `(A) may grant 1 or more temporary or
permanent injunctions on such terms as the court determines
to be reasonable to prevent or restrain violations of this
section; [<-Struck out]
[Struck out->] `(B) at any time while the action is pending,
may order the impounding, on such terms as the court
determines 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 this section; and [<-Struck out]
[Struck out->] `(C) may award to the injured party--
[<-Struck out]
[Struck out->] `(i) reasonable attorney fees and costs;
and [<-Struck out]
[Struck out->] `(ii)(I) actual damages and any
additional profits of the violator, as provided by
paragraph (3); or [<-Struck out]
[Struck out->] `(II) statutory damages, as provided by
paragraph (4). [<-Struck out]
[Struck out->] `(3) ACTUAL DAMAGES AND PROFITS- [<-Struck out]
[Struck out->] `(A) IN GENERAL- The injured party is entitled
to recover-- [<-Struck out]
[Struck out->] `(i) the actual damages suffered by the
injured party as a result of a violation of this
section, as provided by subparagraph (B); and [<-Struck
out]
[Struck out->] `(ii) any profits of the violator that
are attributable to a violation of this section and are
not taken into account in computing the actual damages.
[<-Struck out]
[Struck out->] `(B) CALCULATION OF DAMAGES- The court shall
calculate actual damages by multiplying-- [<-Struck out]
[Struck out->] `(i) the value of the phonorecords or
copies to which counterfeit labels, illicit
authentication features, or counterfeit documentation or
packaging were affixed or embedded, or designed to be
affixed or embedded; by [<-Struck out]
[Struck out->] `(ii) the number of phonorecords or
copies to which counterfeit labels, illicit
authentication features, or counterfeit documentation or
packaging were affixed or embedded, or designed to be
affixed or embedded, [<-Struck out]
[Struck out->] unless such calculation would underestimate
the actual harm suffered by the copyright owner. [<-Struck
out]
[Struck out->] `(C) DEFINITION- For purposes of this
paragraph, the term `value of the phonorecord or copy'
means-- [<-Struck out]
[Struck out->] `(i) the retail value of an authorized
phonorecord of a copyrighted sound recording; [<-Struck
out]
[Struck out->] `(ii) the retail value of an authorized
copy of a copyrighted computer program; or [<-Struck
out]
[Struck out->] `(iii) the retail value of a copy of a
copyrighted motion picture or other audiovisual work.
[<-Struck out]
[Struck out->] `(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 this section in a sum of not less
than $2,500 or more than $25,000, as the court considers
appropriate. [<-Struck out]
[Struck out->] `(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
appropriate, if the court finds that a person has subsequently
violated this section within 3 years after a final judgment was
entered against that person for a violation of this section.
[<-Struck out]
[Struck out->] `(6) LIMITATION ON ACTIONS- A civil action may not
be commenced under this section unless it is commenced within 3
years after the date on which the claimant discovers the
violation. [<-Struck out]
[Struck out->] `(g) OTHER RIGHTS NOT AFFECTED- Nothing in this section
shall enlarge, diminish, or otherwise affect liability under section
1201 or 1202 of title 17.'. [<-Struck out]
[Struck out->] (b) TECHNICAL AND CONFORMING AMENDMENT- The item
relating to section 2318 in the table of sections at the beginning of
chapter 113 of title 18, United States Code, is amended by inserting
`or illicit authentication features' after `counterfeit labels'.
[<-Struck out]
SECTION 1. SHORT TITLE.
This Act may be cited as the `Anticounterfeiting Amendments of 2002'.
SEC. 2. FINDINGS.
Congress finds that--
(1) American innovation, and the protection of that innovation by
the government, has been a critical component of the economic
growth of this Nation throughout the history of the Nation;
(2) copyright-based industries represent one of the most valuable
economic assets of this country, contributing over 5 percent of
the gross domestic product of the United States and creating
significant job growth and tax revenues;
(3) the American intellectual property sector employs
approximately 4,300,000 people, representing over 3 percent of
total United States employment;
(4) the proliferation of organized criminal counterfeiting
enterprises threatens the economic growth of United States
copyright industries;
(5) the American intellectual property sector has invested
millions of dollars to develop highly sophisticated authentication
features that assist consumers and law enforcement in
distinguishing genuine intellectual property products and
packaging from counterfeits;
(6) in order to thwart these industry efforts, counterfeiters
traffic in, and tamper with, genuine authentication features, for
example, by obtaining genuine authentication features through
illicit means and then commingling these features with counterfeit
software or packaging;
(7) Federal law does not provide adequate civil and criminal
remedies to combat tampering activities that directly facilitate
counterfeiting crimes; and
(8) in order to strengthen Federal enforcement against
counterfeiting of copyrighted works, Congress must enact
legislation that--
(A) prohibits trafficking in, and tampering with,
authentication features of copyrighted works; and
(B) permits aggrieved parties an appropriate civil cause of
action.
SEC. 3. PROHIBITION AGAINST TRAFFICKING IN ILLICIT AUTHENTICATION FEATURES.
(a) IN GENERAL- Section 2318 of title 18, United States Code, is
amended--
(1) by striking the heading and inserting `Trafficking in
counterfeit labels, illicit authentication features, or
counterfeit documentation or packaging';
(2) by striking subsection (a) and inserting the following:
`(a) Whoever, in any of the circumstances described in subsection (c),
knowingly traffics in--
`(1) a counterfeit label affixed to, or designed to be affixed
to--
`(A) a phonorecord;
`(B) a copy of a computer program;
`(C) a copy of a motion picture or other audiovisual work; or
`(D) documentation or packaging;
`(2) an illicit authentication feature affixed to or embedded in,
or designed to be affixed to or embedded in--
`(A) a phonorecord;
`(B) a copy of a computer program;
`(C) a copy of a motion picture or other audiovisual work; or
`(D) documentation or packaging; or
`(3) counterfeit documentation or packaging,
shall be fined under this title or imprisoned for not more than 5
years, or both.';
(3) in subsection (b)--
(A) in paragraph (2), by striking `and' at the end;
(B) in paragraph (3)--
(i) by striking `and `audiovisual work' have' and
inserting the following: `, `audiovisual work', `sound
recording', 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 `authentication feature' means any hologram,
watermark, certification, symbol, code, image, sequence of numbers
or letters, or other feature that either individually or in
combination with another feature is used by the respective
copyright owner to verify that a phonorecord, a copy of a computer
program, a copy of a motion picture or other audiovisual work, or
documentation or packaging is not counterfeit or otherwise
infringing of any copyright;
`(5) the term `documentation or packaging' means documentation or
packaging for a phonorecord, copy of a computer program, or copy
of a motion picture or other audiovisual work; and
`(6) the term `illicit authentication feature' means an
authentication feature, that--
`(A) is genuine in origin, but, without the authorization of
the respective copyright owner, has been tampered with or
altered for the purpose of inducing a third party to
reproduce or accept distribution of--
`(i) a phonorecord;
`(ii) a copy of a computer program;
`(iii) a copy of a motion picture or other audiovisual
work; or
`(iv) documentation or packaging;
where such reproduction or distribution violates the rights
of the copyright owner under title 17;
`(B) is genuine, but has been distributed, or is intended for
distribution, without the authorization of the respective
copyright owner and not in connection with the lawfully made
copy or phonorecord to which such authentication feature was
intended to be affixed or embedded by the respective
copyright owner; or
`(C) appears to be genuine, but is not.';
(4) in subsection (c)--
(A) by striking paragraph (3) and inserting the following:
`(3) the counterfeit label or illicit authentication feature is
affixed to, is embedded in, or encloses, or is designed to be
affixed to, to be embedded in, or to enclose--
`(A) a phonorecord of a copyrighted sound recording;
`(B) a copy of a copyrighted computer program;
`(C) a copy of a copyrighted motion picture or other
audiovisual work; or
`(D) copyrighted documentation or packaging; or'; and
(B) in paragraph (4), by striking `for a computer program';
(5) in subsection (d)--
(A) by inserting `or illicit authentication features' after
`counterfeit labels' each place it appears;
(B) by inserting `or illicit authentication features' after
`such labels'; and
(C) by inserting before the period at the end the following:
`, and of any equipment, device, or materials used to
manufacture, reproduce, or assemble the counterfeit labels or
illicit authentication features'; and
(6) by adding at the end the following:
`(f) CIVIL REMEDIES FOR VIOLATION-
`(1) IN GENERAL- Any copyright owner who is injured by a violation
of this section or is threatened with injury, 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 violations of this section;
`(B) at any time while the action is pending, may order the
impounding, on such terms as the court determines 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 this section;
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 by paragraph (3); or
`(II) statutory damages, as provided by 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 this section, as provided by
subparagraph (B); and
`(ii) any profits of the violator that are attributable
to a violation of this section and are not taken into
account in computing the actual damages.
`(B) CALCULATION OF DAMAGES- The court shall calculate actual
damages by multiplying--
`(i) the value of the phonorecords or copies to which
counterfeit labels, illicit authentication features, or
counterfeit documentation or packaging were affixed or
embedded, or designed to be affixed or embedded; by
`(ii) the number of phonorecords or copies to which
counterfeit labels, illicit authentication features, or
counterfeit documentation or packaging were affixed or
embedded, or designed to be affixed or embedded,
unless such calculation would underestimate the actual harm
suffered by the copyright owner.
`(C) DEFINITION- For purposes of this paragraph, the term
`value of the phonorecord or copy' means--
`(i) the retail value of an authorized phonorecord of a
copyrighted sound recording;
`(ii) the retail value of an authorized copy of a
copyrighted computer program; or
`(iii) the retail value of an authorized copy of a
copyrighted motion picture or other audiovisual 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 this section 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 appropriate, if the
court finds that a person has subsequently violated this section
within 3 years after a final judgment was entered against that
person for a violation of this section.
`(6) LIMITATION ON ACTIONS- A civil action may not be commenced
under this section unless it is commenced within 3 years after the
date on which the claimant discovers the violation.
`(g) OTHER RIGHTS NOT AFFECTED- Nothing in this section shall enlarge,
diminish, or otherwise affect liability under section 1201 or 1202 of
title 17.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The item relating to section
2318 in the table of sections at the beginning of chapter 113 of title
18, United States Code, is amended to read as follows:
`2318. Trafficking in counterfeit labels, illicit authentication
features, or counterfeit documentation or packaging.'.
Calendar No. 500
107th CONGRESS
2d Session
S. 2395
A BILL
To prevent and punish counterfeiting and copyright piracy, and for other
purposes.
------------------------------------------------------------------------
July 18, 2002
Reported with an amendment
END
----- End forwarded message -----
____________________________
New Yorker Linux Users Scene
Fair Use -
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