H.R.5921 - Intellectual Property Enhanced Criminal Enforcement Act of 2006 109th Congress (2005-2006)

To amend titles 17 and 18, United States Code, to strengthen the protection of intellectual property, and for other purposes.

To amend titles 17 and 18, United States Code, to strengthen the protection of intellectual property, 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.

SEC. 2. Registration in civil infringement actions.

(a) Limitation to civil actions; protection of copyright claim with pending application; harmless error.—Section 411 of title 17, United States Code, is amended—

(1) in the section heading, by inserting “civil” before “infringement”;

(2) in subsection (a)—

(A) in the first sentence, by striking “no action” and inserting “no civil action”;

(B) in the second sentence, by striking “an action” and inserting “a civil action”; and

(C) by inserting after the first sentence the following: “The receipt by the Copyright Office of a deposit, application, and fee required for registration in proper form shall suffice as registration of the copyright claim under this subsection.”;

(3) in subsection (b)—

(A) by redesignating that subsection as subsection (c); and

(B) by striking “506 and sections 509 and” and inserting “505 and section”; and

(4) by inserting after subsection (a) the following new subsection:

“(b) (1) A certificate of registration satisfies the requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—

“(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and

“(B) the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.

“(2) In any case in which inaccurate information described under paragraph (1) is alleged, the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.’’;”.

(b) Conforming amendments.—

(1) Section 412 of title 17, United States Code, is amended by striking ‘‘411(b)’’ and inserting ‘‘411(c)’’.

(2) The item relating to section 411 in the table of sections for chapter 4 of title 17, United States Code, is amended to read as follows:

SEC. 3. Civil remedies for infringement.

(1) by striking “and of all plates” and inserting “, of all plates”; and

(2) by striking the period and inserting “, and of records documenting the manufacture, sale, or receipt of items involved in such violation. The court shall enter an appropriate protective order with respect to discovery of any records that have been seized. The protective order shall provide for appropriate procedures to assure that confidential information contained in such records is not improperly disclosed to any party.”.

SEC. 4. Statutory damages.

SEC. 5. Criminal infringement.

(a) In general.—Section 506(a) of title 17, United States Code, is amended—

(1) by redesignating paragraph (3) as paragraph (4); and

(2) by inserting after paragraph (2) the following:

“(3) ATTEMPT AND CONSPIRACY.—

“(A) ATTEMPT.—Any person who attempts to commit an offense under paragraph (1) shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt.

“(B) CONSPIRACY.—If two or more persons conspire to commit an offense under paragraph (1) and one or more of such persons do any act to effectuate the object of the conspiracy, each shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the conspiracy.”.

(b) Forfeiture and destruction; restitution.—Section 506(b) of title 17, United States Code, is amended to read as follows:

“(b) Forfeiture, destruction, and restitution.—Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.”.

(c) Conforming amendment.—Section 509 of title 17, United States Code, and the item relating to that section in the table of sections for chapter 5 of such title, are repealed.

SEC. 6. Importation and exportation.

(a) Importation and exportation of infringing items.—Section 602(a) of title 17, United States Code, is amended—

(1) by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and (C);

(2) in the first sentence, by striking “Importation” and inserting “(1) Importation”;

(3) by striking “106, actionable” and inserting “106 and is actionable”;

(4) by striking “This subsection does not apply to—” and inserting the following:

“(2) Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright or would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106 and is actionable under sections 501 and 506.

“(3) This subsection does not apply to—”;

(5) in subparagraph (A), as redesignated, by inserting “or exportation” after “importation”;

(6) in subparagraph (B), as redesignated—

(A) by striking “, for the private use of the importer” and inserting “or exportation, for the private use of the importer or exporter”; and

(B) by inserting “or departing from the United States” after “outside the United States”.

(b) Conforming amendments.— (1) The section heading for section 602 of title 17, United States Code, is amended by inserting “or exportation” after “importation”.

(2) The table of sections for chapter 6 of title 17, United States Code, is amended by inserting “or exportation” after “importation”.

(3) The heading for chapter 6 of title 17, United States Code, is amended to read as follows:

(4) The item relating to chapter 6 in the table of chapters for title 17, United States Code, is amended to read as follows:

• “6. Manufacturing Requirements, Importation, and Exportation 601”.

SEC. 7. Circumvention of copyright protection systems.

(a) in subsection (a)—

(1) in paragraph (2), by striking “import,”; and

(2) in paragraph (3)—

(A) in subparagraph (A), by striking “and” after the semicolon;

(B) in subparagraph (B), by striking the period and inserting “; and”; and

(C) by adding at the end the following:

“(C) the term ‘traffic in’ means to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of.”; and

(3) in subsection (b)—

(A) in paragraph (1), by striking “import,”; and

(B) in paragraph (2)—

(i) in subparagraph (A), by striking “and” after the semicolon;

(ii) in subparagraph (B), by striking the period and inserting “; and”; and

(iii) by adding at the end the following:

“(C) the term ‘traffic in’ means to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of.”.

SEC. 8. Fraud in authentication procedures.

“(12) (A) the term ‘traffic in’ means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of; and

“(B) the term ‘financial gain’ includes the receipt, or expected receipt, of anything of value.”.

SEC. 9. Fraud in connection with access devices.

“(5) the term ‘traffic in’ means to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of;”.

SEC. 10. Forfeiture under Economic Espionage Act.

Ҥ 1834. Criminal forfeiture

“Forfeiture, destruction and restitution relating to this chapter shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.”.

SEC. 11. Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging for works that can be copyrighted.

(1) Subsection (a) is amended——

(A) by redesignating subparagraphs (A) through (G) as clauses (i) through (vii), respectively;

(B) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively;

(C) by striking “Whoever” and inserting “(1) Whoever”;

(D) by striking “5 years” and inserting “10 years”; and

(E) by adding at the end the following:

“(2) Whoever is convicted of an offense under paragraph (1), having previously been convicted of a felony offense under this section, under section 1204(a) of title 17, or under section 2319, 2319A, or 2319B of this title, shall be imprisoned not more than 20 years, fined under this title, or both.”.

(2) Section 2318(d) is amended to read as follows:

“(d) Forfeiture and destruction of property; restitution.—Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.”.

(3) Section 2318 is further amended by striking subsection (e) and redesignating subsection (f) as subsection (e).

SEC. 12. Criminal infringement of copyright.

(1) in subsection (b)—

(A) in paragraph (1), by striking “5 years” and inserting “10 years”; and

(B) in paragraph (2)—

(i) by striking “10 years” and inserting “20 years”; and

(ii) by striking “if the offense is a second or subsequent offense under paragraph (1)” and inserting “if the offense was committed after a prior felony conviction under this section, under section 1204(a) of title 17, or under section 2318, 2319A, or 2319B of this title”; and

(2) in subsection (c)—

(A) in paragraph (1), by striking “3 years” and inserting “6 years”; and

(B) in paragraph (2)—

(i) by striking “6 years” and inserting “12 years”; and

(ii) by striking “if the offense is a second or subsequent offense under paragraph (1)” and inserting “if the offense was committed after a prior felony conviction under this section, under section 1204(a) of title 17, or under section 2318, 2319A, or 2319B of this title”.

SEC. 13. Unauthorized fixation of and trafficking in reproductions of live musical performances.

(1) Subsection (a) is amended——

(A) by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and (C), respectively;

(B) in subparagraph (C), as redesignated, by striking “paragraph (1)” and inserting “subparagraph (A)”;

(C) by striking “Whoever” and inserting “(1) Whoever”;

(D) by striking “5 years” and inserting “10 years”;

(E) by striking “, or if the offense” and all that follows through “or both”; and

(F) by adding at the end the following:

“(2) Whoever is convicted of an offense under paragraph (1), having previously been convicted of a felony offense under paragraph (1), under section 1204(a) of title 17, or under section 2318, 2319, or 2319B of this title, shall be imprisoned not more than 20 years, fined under this title, or both.”.

(2) Section 2319A is amended—

(A) by striking subsection (c) and redesignating subsections (d), (e), and (f) as subsections (c), (d), and (e), respectively; and

(B) by amending subsection (b) to read as follows:

“(b) Forfeiture and destruction of property; restitution.—Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.”.

SEC. 14. Unauthorized recording of motion pictures.

(1) Subsection (a) is amended—

(A) by striking “Any person” and inserting “(1) Any person”;

(B) by striking “shall—” and all that follows through the end of paragraph (2) and inserting “shall be imprisoned not more than 10 years, or fined under this title, or both.”; and

(C) by striking “The possession” and inserting the following:

“(2) Whoever is convicted of an offense under paragraph (1), having previously been convicted of a felony offense under paragraph (1), under section 1204(a) of title 17, or under section 2318, 2319, or 2319A of this title, shall be imprisoned not more than 20 years, fined under this title, or both.

“(3) The possession”.

(2) Section 2319B(b) is amended to read as follows:

“(b) Forfeiture and destruction of property; restitution.—Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.”.

SEC. 15. Trafficking in counterfeit goods or services.

(1) Subsection (a) is amended—

(A) by striking “(a) Whoever” and inserting

“(a) Offenses.—

“(1) IN GENERAL.—Whoever”;

(B) by striking “10 years” and inserting “20 years”;

(C) by striking “20 years” and inserting “30 years”; and

(D) by adding at the end the following:

“(2) SERIOUS BODILY HARM OR DEATH.— (A) If the offender knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of paragraph (1), the penalty shall be a fine under this title or imprisonment for not more than 30 years, or both.

“(B) If the offender knowingly or recklessly causes or attempts to cause death from conduct in violation of paragraph (1), the penalty shall be a fine under this title or imprisonment for any term of years or for life, or both.”.

(2) Subsection (b) is amended to read as follows:

“(b) Forfeiture and destruction of property; restitution.—Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.”.

SEC. 16. Forfeiture, destruction, and restitution.

(a) In general.—Chapter 111 of title 18, United States Code, is amended by adding at the end the following new section:

Ҥ 2323. Forfeiture, destruction, and restitution

“(a) Civil forfeiture.—

“(1) PROPERTY SUBJECT TO FORFEITURE.—The following property is subject to forfeiture to the United States:

“(A) Any infringing, counterfeit, illicit, or misappropriated article involved in an offense under section 506 or 1204 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, or any article the making or trafficking of which is prohibited by any such section or chapter.

“(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).

“(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

“(2) PROCEDURES.—The provisions of chapter 46 relating to civil forfeitures shall extend to any civil forfeiture under this section. At the conclusion of the forfeiture proceedings, the court shall order that any property forfeited under paragraph (1) be destroyed, or otherwise disposed of according to law.

“(b) Criminal forfeiture.—

“(1) PROPERTY SUBJECT TO FORFEITURE.—The court, in imposing sentence on a person convicted of an offense under section 506 or 1204 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, shall order, in addition to any other sentence imposed, that the person forfeit to the United States any property subject to forfeiture under subsection (a) for that offense.

“(2) PROCEDURES.—

“(A) IN GENERAL.—The forfeiture of property under paragraph (1), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that section.

“(B) DESTRUCTION.—At the conclusion of the forfeiture proceedings, the court—

“(i) shall order the destruction of any forfeited article or component of an article bearing or consisting of a counterfeit mark; and

“(ii) shall order the destruction or other lawful disposition of any infringing items or other property described in subsection (a)(1)(A) and forfeited under paragraph (1) of this subsection.

“(c) Restitution.—When a person is convicted of an offense under section 506 or 1204 of title 17 or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, the court, pursuant to section 3556 of this title, shall order the person to pay restitution to any victim of the offense as an offense against property referred to in section 3663A(c)(1)(A)(ii) of this title.”.

(b) Conforming amendment.—The table of sections for chapter 111 of title 18, United States Code, is amended by adding at the end the following new items:

SEC. 17. Improved investigative and forensic resources for enforcement of laws related to intellectual property crimes.

(a) In general.—The Attorney General, in consultation with the Director of the Federal Bureau of Investigation, shall, with respect to crimes related to the theft of intellectual property—

(1) create an operational unit of the Federal Bureau of Investigation—

(A) to work with the Computer Crime and Intellectual Property section of the Department of Justice on the investigation and coordination of intellectual property crimes that are complex, committed in more than one judicial district, or international;

(B) that consists of at least 10 agents of the Bureau; and

(C) that is located at the headquarters of the Bureau;

(2) ensure that any unit in the Department of Justice responsible for investigating computer hacking or intellectual property crimes is assigned at least 2 agents of the Federal Bureau of Investigation (in addition to any agent assigned to such unit as of the date of the enactment of this Act) to support such unit for the purpose of investigating or prosecuting intellectual property crimes; and

(3) implement a comprehensive program—

(A) the purpose of which is to train agents of the Federal Bureau of Investigation in the investigation and prosecution of such crimes and the enforcement of laws related to intellectual property crimes;

(B) that includes relevant forensic training related to investigating and prosecuting intellectual property crimes; and

(C) that requires such agents who investigate or prosecute intellectual property crimes to attend the program annually.

(b) Intellectual property law enforcement coordinators.—Not later than 120 days after the date of the enactment of this Act, the Attorney General shall assign one Federal prosecutor to the appropriate office of the Department of Justice located in Hong Kong and one Federal prosecutor to such an office located in Budapest, Hungary, to assist in the coordination of the enforcement of intellectual property laws between the United States and foreign nations.

(c) Organized crime task force.—Not later than 120 days after the date of the enactment of this Act, the Attorney General, through the United States Attorneys’ Offices, the Computer Crime and Intellectual Property section, and the Organized Crime and Racketeering section of the Department of Justice, and in consultation with the Federal Bureau of Investigation and other Federal law enforcement agencies, shall create a Task Force to develop and implement a comprehensive, long-range plan to investigate and prosecute international organized crime syndicates engaging in or supporting crimes relating to the theft of intellectual property.

(d) Authorization.—There are authorized to be appropriated to carry out this section $12,000,000 for each of fiscal years 2007 through 2011.

SEC. 18. Additional funding for resources to investigate and prosecute criminal activity involving computers.

(a) Additional funding for resources.—

(1) AUTHORIZATION.—In addition to amounts otherwise authorized for resources to investigate and prosecute criminal activity involving computers, there are authorized to be appropriated for each of the fiscal years 2007 through 2011—

(A) $10,000,000 to the Director of the Federal Bureau of Investigation; and

(B) $10,000,000 to the Attorney General for the Criminal Division of the Department of Justice.

(2) AVAILABILITY.—Any amounts appropriated under paragraph (1) shall remain available until expended.

(b) Use of additional funding.—Funds made available under subsection (a) shall be used by the Director of the Federal Bureau of Investigation and the Attorney General, for the Federal Bureau of Investigation and the Criminal Division of the Department of Justice, respectively, to—

(1) hire and train law enforcement officers to—

(A) investigate crimes committed through the use of computers and other information technology, including through the use of the Internet; and

(B) assist in the prosecution of such crimes; and

(2) procure advanced tools of forensic science to investigate, prosecute, and study such crimes.

SEC. 19. Technical amendments.

(a) Amendments to title 17, United States Code.—

(1) Section 109 (b)(4) of title 17, United States Code, is amended by striking “505, and 509” and inserting “and 505”.

(2) Section 111 of title 17, United States Code, is amended—

(A) in subsection (b), by striking “and 509”;

(B) in subsection (c)—

(i) in paragraph (2), by striking “and 509”;

(ii) in paragraph (3), by striking “sections 509 and 510” and inserting “section 510”; and

(iii) in paragraph (4), by striking “and section 509”; and

(C) in subsection (e)—

(i) in paragraph (1), by striking “sections 509 and 510” and inserting “section 510”; and

(ii) in paragraph (2), by striking “and 509”.

(3) Section 115(c) of title 17, United States Code, is amended—

(A) in paragraph (3)(G)(i), by striking “and 509”; and

(B) in paragraph (6), by striking “and 509”.

(4) Section 119(a) of title 17, United States Code, is amended—

(A) in paragraph (6), by striking “sections 509 and 510” and inserting “section 510”;

(B) in paragraph (7)(A), by striking “and 509”;

(C) in paragraph (8), by striking “and 509”; and

(D) in paragraph (13), by striking “and 509”.

(5) Section 122 of title 17, United States Code, is amended—

(A) in subsection (d), by striking “and 509”;

(B) in subsection (e), by striking “sections 509 and 510” and inserting “section 510”; and

(C) in subsection (f)(1), by striking “and 509”.

(6) Section 411(b) of title 17, United States Code, is amended by striking “sections 509 and 510” and inserting “section 510”.

(b) Other amendments.—Section 596(c)(2)(c) of the Tariff Act of 1950 (19 U.S.C. 1595a(c)(2)(c)) is amended by striking “or 509”.