House Approves Copyright Bill

September 28, 2004. The House approved HR 4077, the "Piracy Deterrence and Education Act of 2004 ", by a voice vote. The Senate has yet to take any action on this bill.

Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, stated in the House that "this legislation addresses the growing piracy problem facing our Nation's creative community. New technologies have made copyright piracy an even easier activity to undertake than before. The number of pirating files continues to increase. Although the technology is not the problem, our Nation's laws need to be updated to reflect the impact of this new technology."

Rep. Adam Schiff (D-CA), a member of the Committee, stated in the House that "Intellectual property theft has become a rampant and serious threat to the livelihoods of all copyright creators. Digital technologies like the CD burner, the Internet, and the MP3 audio-compression standard, while enhancing the consumer experience, have greatly facilitated copyright theft and led to an explosion in its prevalence. Studies indicate that at any given time more than 850 million copyright-infringing files are being illegally offered for distribution through just one peer-to-peer, file-swapping network. Innumerable Web sites, file transfer protocol servers, Internet affinity groups, and Internet relay chat channels also constitute havens for copyright theft."

Rep. Schiff (at right) added that "While not a panacea, the changes made by H.R. 4077 will play an important role in addressing the piracy problem. It has become clear that law enforcement authorities need additional resources, statutory authority, and incentives to become productive participants in the antipiracy battle."

Rep. John Conyers (D-MI), the ranking Democrat on the Committee, spoke in favor of the bill, but expressed his opposition to the inclusion of Section 112, which is the "Family Movie Act of 2004", also know as the ClearPlay bill.

Rep. Heather Wilson (R-NM), Rep. Sheila Lee (D-TX), and Rep. Gene Green (D-TX) also spoke in support of the bill.

Legislative History. The original version of this bill was introduced on March 31, 2004 by Rep. Lamar Smith (R-TX), Rep. Howard Berman (D-CA), and Rep. John Conyers (D-MI). However, it has grown and evolved.

Also, HR 4077 is a successor bill to HR 2514, which was introduced on June 19, 2003. See, stories titled "Representatives Smith & Berman Introduce Internet Piracy Education Bill" in TLJ Daily E-Mail Alert No. 686, June 24, 2003; and "House CIIP Subcommittee Holds Hearing on Piracy Deterrence and Education Act" in TLJ Daily E-Mail Alert No. 701, July 18, 2003.

The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) amended and approved HR 4077 on March 31, 2004.

The full Committee amended and approved HR 4077 on September 8, 2004. This mark up added the language of HR 4586, the "Family Movie Act of 2004", which is also known as the ClearPlay bill. See, story titled "House Judiciary Committee Approves Intellectual Property Bills" in TLJ Daily E-Mail Alert No. 973, September 9, 2004.

Bill Summary. § 101 states the title of the bill. § 102 recites Congressional findings.

§ 103 creates a voluntary program at the Department of Justice (DOJ) to provide notices to apparent infringers. It provides that the DOJ may establish a program, in which the DOJ "in cases where persons who are subscribers of Internet service providers appear to be engaging in copyright infringing conduct in the course of using that Internet service, would send to the Internet Service providers notices that warn such persons of the penalties for such copyright infringement. The Internet service providers may forward the notices to such persons."

§ 104 pertains to the DOJ's computer hacking and intellectual property units (CHIPs), which exist in only a few of the many U.S. Attorneys Offices. This section requires that any DOJ unit "responsible for investigating computer hacking or responsible for investigating intellectual property crimes is assigned at least one agent to support such unit for the purpose of investigating crimes relating to the theft of intellectual property."

§ 105 creates a public education program at the DOJ, to "educate the general public concerning the value of copyrighted works and the effects of the theft of such works on those who create them".

§ 106 provides that "Section 411(a) of title 17, United States Code, is amended in the first sentence by striking `Except for' and inserting `Except for an action brought by the Government of the United States or by any agency or instrumentality thereof, or' ."

That is, 17 U.S.C. § 411 establishes registration of a copyright as a prerequisite for filing a claim for copyright infringement. However, some pirates obtain and distribute works before they are completed, or after completion but before the Copyright Office has issued a certificate of registration. Moreover, this early piracy can cause tremendous economic harm to the ultimate copyright holder. This provision allows federal prosecutors to take action against these early pirates without having to wait for the completion of the registration process.

§ 107 authorizes the appropriation of $15 Million for "the investigation and prosecution of violations of title 17, United States Code" -- that is, the copyright laws.

§ 108 criminalizes using camcorders to copy movies in motion picture exhibition facilities, such as movie theatres. This is aimed at those who take camcorders into movie theatres and surreptitiously copy movies, thereby enabling pirates to obtain and market copies of movies as soon as they are shown in a theatres.

§ 109 recites Congressional findings regarding peer to peer systems. It creates no new law. It states, for example, that "Massive volumes of illegal activity, including the distribution of child pornography, viruses, and confidential personal information, and copyright infringement occur on publicly accessible peer-to-peer file sharing services every day."

§ 110 increases criminal penalties for various crimes related to copyright infringement.

§ 111 revises federal sentencing guidelines for crimes related to copyright infringement.

§ 112 is the "Family Movie Act of 2004", which was originally introduced as a stand alone bill, HR 4586. It provides an exemption from copyright infringement for skipping content.

It adds a new paragraph (11) to 17 U.S.C. § 110. Section 106 lists the exclusive rights of copyright. Section 110 provides that "Notwithstanding the provisions of section 106, the following are not infringements of copyright: ..." It currently contains ten numbered exemptions. This present bill would add an eleventh, which reads as follows:

   "(11)(A) the making of limited portions of audio or video content of a motion picture imperceptible by or for the owner or other lawful possessor of an authorized copy of that motion picture in the course of viewing of that work for private use in a household, by means of consumer equipment or services that (i) are operated by an individual in that household; (ii) serve only such household; and (iii) do not create a fixed copy of the altered version; and
   (B) the use of technology to make such audio or video content imperceptible, that does not create a fixed copy of the altered version."

The CIIP Subcommittee held a hearing on this topic on May 20, 2004. See, story titled "House CIIP Subcommittee Holds Hearing on DVD Filtering Technology" in TLJ Daily E-Mail Alert No. 903, May 21, 2004. Rep. Smith and Rep. Randy Forbes (R-VA) introduced HR 4586 on June 16, 2004. On July 8, the CIIP Subcommittee amended and approved the bill. On July 21, the full Committee amended and approved the bill.

See also, Huntsman v. Soderbergh, U.S. District Court for the District of Colorado, D.C. No. 02-1662 (MJW). This case involves legal issues of copyright infringement, derivative works, and Section 43 of the Lanham Act.