[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3632 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 3632
To prevent and punish counterfeiting of copyrighted copies and
phonorecords, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 21, 2003
Mr. Smith of Texas (for himself, Mr. Keller, Mr. Wexler, Mr. Goodlatte,
Mr. Gallegly, and Mr. Carter) introduced the following bill; which was
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
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 ``Anti-counterfeiting Amendments of
2003''.
SEC. 2. PROHIBITION AGAINST TRAFFICKING IN ANTI-COUNTERFEITING
COMPONENTS.
(a) In General.--Section 2318 of title 18, United States Code, is
amended--
(1) by striking the section heading and inserting the
following:
``Sec. 2318. Trafficking in counterfeit labels 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, 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; or
``(D) 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)--
(A) by striking paragraph (1) and inserting the
following:
``(1) the term `counterfeit label' means--
``(A) an identifying label or container that
appears to be genuine, but is not; or
``(B) a genuine certificate, licensing document,
registration card, or similar labeling component--
``(i) 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, or documentation or
packaging is not counterfeit or infringing of
any copyright; and
``(ii) that is, without the authorization
of the copyright owner--
``(I) distributed or intended for
distribution not in connection with the
copy or phonorecord to which such
labeling component was intended to be
affixed by the respective copyright
owner; or
``(II) in the case of a computer
program, altered or removed to falsify
the number of authorized copies or
users, type of authorized user, or
edition or version of the computer
program;'';
(B) in paragraph (2), by striking ``and'' at the
end;
(C) 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 ``; and'' ; and
(D) by adding at the end the following:
``(4) 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.'';
(4) in subsection (c)--
(A) by striking paragraph (3) and inserting the
following:
``(3) the counterfeit 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;
``(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), by inserting before the period at
the end the following: ``, and of any equipment, device, or
material used to manufacture, reproduce, or assemble the
counterfeit labels''; and
(6) by adding at the end the following:
``(f) Civil Remedies for Violation.--
``(1) In general.--Any copyright owner who is injured, or
is threatened with injury, by a violation of this section 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 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
this section, as provided in 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 which are, or are intended to be,
affixed with, enclosed in, or accompanied by
any counterfeit labels or counterfeit
documentation or packaging, by
``(ii) the number of phonorecords or copies
which are, or are intended to be, affixed with,
enclosed in, or accompanied by any counterfeit
labels or counterfeit documentation or
packaging.
``(C) Definition.--For purposes of this paragraph,
the term `value of the phonorecord or copy' means--
``(i) in the case of a copyrighted sound
recording, the retail value of an authorized
phonorecord of that sound recording;
``(ii) in the case of a copyrighted
computer program, the retail value of an
authorized copy of that computer program; and
``(iii) in the case of a copyrighted motion
picture or other audiovisual work, the retail
value of an authorized copy of that motion
picture or 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.''.
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