http://thomas.loc.gov/cgi-bin/query/F?c109:1:./temp/~c109F7RWA5:e397

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S.167
Family Entertainment and Copyright Act of 2005 (Engrossed as Agreed to or Passed by Senate)

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SECTION 1. SHORT TITLE.

This Act may be cited as the `Family Entertainment and Copyright Act of 2005'.

TITLE I--ARTISTS' RIGHTS AND THEFT PREVENTION

SEC. 101. SHORT TITLE.

This title may be cited as the `Artists' Rights and Theft Prevention Act of 2005' or the `ART Act' .

SEC. 102. CRIMINAL PENALTIES FOR UNAUTHORIZED RECORDING OF MOTION PICTURES IN A MOTION PICTURE EXHIBITION FACILITY.

(a) In General- Chapter 113 of title 18, United States Code, is amended by adding after section 2319A the following new section:

`Sec. 2319B. Unauthorized recording of Motion pictures in a Motion picture exhibition facility

`(a) Offense- Any person who, without the authorization of the copyright owner, knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under title 17, or any part thereof, from a performance of such work in a motion picture exhibition facility, shall--

`(1) be imprisoned for not more than 3 years, fined under this title, or both; or

`(2) if the offense is a second or subsequent offense, be imprisoned for no more than 6 years, fined under this title, or both.

The possession by a person of an audiovisual recording device in a motion picture exhibition facility may be considered as evidence in any proceeding to determine whether that person committed an offense under this subsection, but shall not, by itself, be sufficient to support a conviction of that person for such offense.

`(b) Forfeiture and Destruction- When a person is convicted of a violation of subsection (a), the court in its judgment of conviction shall, in addition to any penalty provided, order the forfeiture and destruction or other disposition of all unauthorized copies of motion pictures or other audiovisual works protected under title 17, or parts thereof, and any audiovisual recording devices or other equipment used in connection with the offense.

`(c) Authorized Activities- This section does not prevent any lawfully authorized investigative, protective, or intelligence activity by an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or by a person acting under a contract with the United States, a State, or a political subdivision of a State.

`(d) Immunity for Theaters- With reasonable cause, the owner or lessee of a motion picture exhibition facility where a motion picture or other audiovisual work is being exhibited, the authorized agent or employee of such owner or lessee, the licensor of the motion picture or other audiovisual work being exhibited, or the agent or employee of such licensor--

`(1) may detain, in a reasonable manner and for a reasonable time, any person suspected of a violation of this section with respect to that motion picture or audiovisual work for the purpose of questioning or summoning a law enforcement officer; and

`(2) shall not be held liable in any civil or criminal action arising out of a detention under paragraph (1).

`(e) Victim Impact Statement-

`(1) IN GENERAL- During the preparation of the presentence report under rule 32(c) of the Federal Rules of Criminal Procedure, victims of an offense under this section shall be permitted to submit to the probation officer 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) CONTENTS- A victim impact statement submitted under this subsection shall include--

`(A) producers and sellers of legitimate works affected by conduct involved in the offense;

`(B) holders of intellectual property rights in the works described in subparagraph (A); and

`(C) the legal representatives of such producers, sellers, and holders.

`(f) State Law Not Preempted- Nothing in this section may be construed to annul or limit any rights or remedies under the laws of any State.

`(g) Definitions- In this section, the following definitions shall apply:

`(1) TITLE 17 DEFINITIONS- The terms `audiovisual work', `copy', `copyright owner', `motion picture', `motion picture exhibition facility', and `transmit' have, respectively, the meanings given those terms in section 101 of title 17.

`(2) AUDIOVISUAL RECORDING DEVICE- The term `audiovisual recording device' means a digital or analog photographic or video camera, or any other technology or device capable of enabling the recording or transmission of a copyrighted motion picture or other audiovisual work, or any part thereof, regardless of whether audiovisual recording is the sole or primary purpose of the device.'.

(b) Clerical Amendment- The table of sections at the beginning of chapter 113 of title 18, United States Code, is amended by inserting after the item relating to section 2319A the following:

`2319B. Unauthorized recording of motion pictures in a motion picture exhibition facility.'.

(c) Definition- Section 101 of title 17, United States Code, is amended by inserting after the definition of `Motion pictures' the following: `The term `motion picture exhibition facility' means a movie theater, screening room, or other venue that is being used primarily for the exhibition of a copyrighted motion picture, if such exhibition is open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.'.

SEC. 103. CRIMINAL INFRINGEMENT OF A WORK BEING PREPARED FOR COMMERCIAL DISTRIBUTION.

(a) Prohibited Acts- Section 506(a) of title 17, United States Code, is amended to read as follows:

`(a) Criminal Infringement-

`(1) IN GENERAL- Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed--

`(A) for purposes of commercial advantage or private financial gain;

`(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

`(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

`(2) EVIDENCE- For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright .

`(3) DEFINITION- In this subsection, the term `work being prepared for commercial distribution' means--

`(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution--

`(i) the copyright owner has a reasonable expectation of commercial distribution; and

`(ii) the copies or phonorecords of the work have not been commercially distributed; or

`(B) a motion picture, if, at the time of unauthorized distribution, the motion picture--

`(i) has been made available for viewing in a motion picture exhibition facility; and

`(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.'.

(b) Criminal Penalties- Section 2319 of title 18, United States Code, is amended--

(1) in subsection (a)--

(A) by striking `Whoever' and inserting `Any person who'; and

(B) by striking `and (c) of this section' and inserting `, (c), and (d)';

(2) in subsection (b), by striking `section 506(a)(1)' and inserting `section 506(a)(1)(A)';

(3) in subsection (c), by striking `section 506(a)(2) of title 17, United States Code' and inserting `section 506(a)(1)(B) of title 17';

(4) by redesignating subsections (d) and (e) as subsections (e) and (f), respectively;

(5) by adding after subsection (c) the following:

`(d) Any person who commits an offense under section 506(a)(1)(C) of title 17--

`(1) shall be imprisoned not more than 3 years, fined under this title, or both;

`(2) shall be imprisoned not more than 5 years, fined under this title, or both, if the offense was committed for purposes of commercial advantage or private financial gain;

`(3) shall be imprisoned not more than 6 years, fined under this title, or both, if the offense is a second or subsequent offense; and

`(4) shall be imprisoned not more than 10 years, fined under this title, or both, if the offense is a second or subsequent offense under paragraph (2).'; and

(6) in subsection (f), as redesignated--

(A) in paragraph (1), by striking `and' at the end;

(B) in paragraph (2), by striking the period at the end and inserting a semicolon; and

(C) by adding at the end the following:

`(3) the term `financial gain' has the meaning given the term in section 101 of title 17; and

`(4) the term `work being prepared for commercial distribution' has the meaning given the term in section 506(a) of title 17.'.

SEC. 104. CIVIL REMEDIES FOR INFRINGEMENT OF A WORK BEING PREPARED FOR COMMERCIAL DISTRIBUTION.

(a) Preregistration- Section 408 of title 17, United States Code, is amended by adding at the end the following:

`(f) Preregistration of Works Being Prepared for Commercial Distribution-

`(1) RULEMAKING- Not later than 180 days after the date of enactment of this subsection, the Register of Copyrights shall issue regulations to establish procedures for preregistration of a work that is being prepared for commercial distribution and has not been published.

`(2) CLASS OF WORKS- The regulations established under paragraph (1) shall permit preregistration for any work that is in a class of works that the Register determines has had a history of infringement prior to authorized commercial distribution.

`(3) APPLICATION FOR REGISTRATION- Not later than 3 months after the first publication of a work preregistered under this subsection, the applicant shall submit to the Copyright Office--

`(A) an application for registration of the work;

`(B) a deposit; and

`(C) the applicable fee.

`(4) EFFECT OF UNTIMELY APPLICATION- An action under this chapter for infringement of a work preregistered under this subsection, in a case in which the infringement commenced no later than 2 months after the first publication of the work, shall be dismissed if the items described in paragraph (3) are not submitted to the Copyright Office in proper form within the earlier of--

`(A) 3 months after the first publication of the work; or

`(B) 1 month after the copyright owner has learned of the infringement.'.

(b) Infringement Actions- Section 411(a) of title 17, United States Code, is amended by inserting `preregistration or' after `shall be instituted until'.

(c) Exclusion- Section 412 of title 17, United States Code, is amended by inserting after `section 106A(a)' the following: `, an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement,'.

SEC. 105. FEDERAL SENTENCING GUIDELINES.

(a) Review and Amendment- Not later than 180 days after the date of enactment of this Act , the United States Sentencing Commission, pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, shall review and, if appropriate, amend the Federal sentencing guidelines and policy statements applicable to persons convicted of intellectual property rights crimes, including any offense under--

(1) section 506, 1201, or 1202 of title 17, United States Code; or

(2) section 2318, 2319, 2319A, 2319B, or 2320 of title 18, United States Code.

(b) Authorization- The United States Sentencing Commission may amend the Federal sentencing guidelines in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 note) as though the authority under that section had not expired.

(c) Responsibilities of United States Sentencing Commission- In carrying out this section, the United States Sentencing Commission shall--

(1) take all appropriate measures to ensure that the Federal sentencing guidelines and policy statements described in subsection (a) are sufficiently stringent to deter, and adequately reflect the nature of, intellectual property rights crimes;

(2) determine whether to provide a sentencing enhancement for those convicted of the offenses described in subsection (a), if the conduct involves the display, performance, publication, reproduction, or distribution of a copyrighted work before it has been authorized by the copyright owner, whether in the media format used by the infringing party or in any other media format;

(3) determine whether the scope of `uploading' set forth in application note 3 of section 2B5.3 of the Federal sentencing guidelines is adequate to address the loss attributable to people who, without authorization, broadly distribute copyrighted works over the Internet; and

(4) determine whether the sentencing guidelines and policy statements applicable to the offenses described in subsection (a) adequately reflect any harm to victims from copyright infringement if law enforcement authorities cannot determine how many times copyrighted material has been reproduced or distributed.

TITLE II--EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO CONTENT IN MOTION PICTURES

SEC. 201. SHORT TITLE.

This title may be cited as the `Family Movie Act of 2005'.

SEC. 202. EXEMPTION FROM INFRINGEMENT FOR SKIPPING AUDIO AND VIDEO CONTENT IN MOTION PICTURES.

(a) In General- Section 110 of title 17, United States Code, is amended--

(1) in paragraph (9), by striking `and' after the semicolon at the end;

(2) in paragraph (10), by striking the period at the end and inserting `; and';

(3) by inserting after paragraph (10) the following:

`(11) the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.'; and

(4) by adding at the end the following:

`For purposes of paragraph (11), the term `making imperceptible' does not include the addition of audio or video content that is performed or displayed over or in place of existing content in a motion picture.

`Nothing in paragraph (11) shall be construed to imply further rights under section 106 of this title, or to have any effect on defenses or limitations on rights granted under any other section of this title or under any other paragraph of this section.'.

(b) Exemption From Trademark Infringement- Section 32 of the Trademark Act of 1946 (15 U.S.C. 1114) is amended by adding at the end the following:

`(3)(A) Any person who engages in the conduct described in paragraph (11) of section 110 of title 17, United States Code, and who complies with the requirements set forth in that paragraph is not liable on account of such conduct for a violation of any right under this Act . This subparagraph does not preclude liability, nor shall it be construed to restrict the defenses or limitations on rights granted under this Act , of a person for conduct not described in paragraph (11) of section 110 of title 17, United States Code, even if that person also engages in conduct described in paragraph (11) of section 110 of such title.

`(B) A manufacturer, licensee, or licensor of technology that enables the making of limited portions of audio or video content of a motion picture imperceptible as described in subparagraph (A) is not liable on account of such manufacture or license for a violation of any right under this Act , if such manufacturer, licensee, or licensor ensures that the technology provides a clear and conspicuous notice at the beginning of each performance that the performance of the motion picture is altered from the performance intended by the director or copyright holder of the motion picture. The limitations on liability in subparagraph (A) and this subparagraph shall not apply to a manufacturer, licensee, or licensor of technology that fails to comply with this paragraph.

`(C) The requirement under subparagraph (B) to provide notice shall apply only with respect to technology manufactured after the end of the 180-day period beginning on the date of the enactment of the Family Movie Act of 2005.

`(D) Any failure by a manufacturer, licensee, or licensor of technology to qualify for the exemption under subparagraphs (A) and (B) shall not be construed to create an inference that any such party that engages in conduct described in paragraph (11) of section 110 of title 17, United States Code, is liable for trademark infringement by reason of such conduct.'.

(c) Definition- In this section, the term `Trademark Act of 1946' means the Act entitled `An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes', approved July 5, 1946 (15 U.S.C. 1051 et seq.).

We may refer to it by its anagram..

F E C A L

(The Family Entertainment and Copyright Act Legislation)

How apropros it is...and yes, how FECAL it is!

Nice Code....I love it.

But was it really worth 4 stories in a row?

Afraid so George...'fraid so...
The Devil made me do it...
DEMOCRATS EXPRESSING VITUPERANCE INDEPENDENT of LEIGISLATION

Everytime I hear the word "row"...I think of death row, and when I think of Death Row, I think of Bushy, and when I think of Bushy, I think of him signing this into federal law.

"So it goes"-Vonnegut

"Any person who, without the authorization of the copyright owner, knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under title 17, or any part thereof, from a performance of such work in a motion picture exhibition facility, shall--"

It doesn't say "in whole or in part." Does that mean that this only applies to making a whole copy? If it includes making a partial copy, what if you used your cellphone camera to make a movie of a friend (i remember you, jackass) and you knowingly got some of the movie in it?

Why are gun makers supposed to be responsible for people shooting each other with guns, but nobody thinks that theaters and camera makers responsible for people recording a movie in a theater? Just because someone dies? What if I beat someone to death with their camera after they use it in a theater? Can I sue Sony?

And it says audiovisual device.. what if I use a separate audio and visual device? Not that I particularly care, but just curious.

Okay, Sherm has a viable point that he could probably prove in court by playback of the captured video that the intent was not to steal a movie.

First of all, Sec. 102 is specifically about trying to record an entire movie in a theatre. If you're doing this, I don't care what happens to you. They can fry your ass if they want because you're an idiot.

Sec. 103 is about criminal penalties for infringing on something that hasn't been released yet. It has to be willful and it has to be for profit.

Sec. 104 concerns civil cases, but again, only for unreleased works.

By definition, if you have possession of unreleased works, you probably got it from the studio or very close in the chain.

Fry those bastards, too.

Frankly, I don't see what the big deal is, except that infringement now carries the same sentence as involuntary manslaughter.

this sounds like some fecal matter

Sherm you've got a sharp mind. ever think of becoming a lawyer? can't believe I said that.

Kerry, McCain, or any of the others would've signed the bill too. Shows the far reaching effect the entertainment industry has in politics. they play all sides. Only the people en mass can turn these spinless politicians around and null the effects of the lobby groups

I wish I had the ability to know what everyone else would do...

Hell, I'd settle for being able to figure out the right six numbers that will come up on the Lotto tonight....

Republicans are a GIANT lobby group....

And, they don't get slowed down...but they damn sure get
"DeLayed"

You can easily obtain pre-release material by purchasing it in another country where it was released. Just because it hasn't been released in the US doesn't mean it hasn't been officially released in another country. An example of this is the NES version of Final Fantasy 2 which was released in Japan in the 80's but was never released in the US. Presumably this law would do the same for fansubs of movies which are available for purchase in Japan but have never been released in the US.

"Sherm you've got a sharp mind. ever think of becoming a lawyer?"

I take that as a compliment.

"can't believe I said that. "

I take that as an insult.

..my mom regularly told me between the ages of about 7 and 18 that I should be a lawyer. Apparently I'm a big pain in the ass or something. I dunno comp.. the last couple of years several people have complimented how I think. Not calling me smart necessarily.. but more or less what you said. I don't know what it's all about. Maybe i'm "special."

George,

I don't really care about penalizing someone who goes into a movie and tries to copy it via camcorder. But I agree with your point.. what's with a 3 year prison sentence.. that's ridiculous.

No insult intended sherm. LOL. just my feeling about lawyers in general. there are great ones for sure, perhaps you could bring some sanity to that profession.

"I wish I had the ability to know what everyone else would do..."

with politicians it's easy. they're shallow and 2 demensional (in general, there's always exceptions). Follow the money and you'll find the vote. I wish it was so easy to pick out one party or individual that we could get rid of and sanity will once again reign but it's not that easy in the real world. as far as a big lobby group... repubs, dem, NRA, RIAA, MPAA, AARP and all the other acronyms wear the same cloak.

So...What Will DeLay Do>? He's a politician, and before crawling up along the water pipes into Capitol Hill, he was a bug exterminator in Texas...so, he should be able to figure out, right? I mean, all the DEET should have killed off a few brain cells along the way...
http://www.dissidentvoice.org/Articles7/Nimmo_DeLay-Israel.htm

By the way...my newest blog is on this little weasel..
http://without-delay.blogspot.com/

"Offense- Any person who, without the authorization of the copyright owner, knowingly uses or attempts to use an audiovisual recording device"

I submit that I am an audiovisual recording device. I have eyes and a brain that remembers. I am a biological machine and looking at the above law, I see that everyone is now a criminal. While I cannot reproduce an exact copy of what I see or hear, I can offer a reasonable parody and act out the entire story. Therefore, next time I have the urge to be entertained by the film industry, I'll forgo the trip to the theater and go straight to jail.

On a less dramatic note, this is a bad law ther should be repealed. People should be protesting now, before hundreds, if not thousands, of innocent people get arrested. This law won't effect the black-market or the guy selling copies out the back of his van. No, the only people who will be caught by this are teens and innocents.

With laws like this, there is no wonder that the US is spiralling into the abyss. What we need a new president, now before Bush does more damage that'll result in martial law and our neighbors lobbing nukes our way.

"Offense- Any person who, without the authorization of the copyright owner, knowingly uses or attempts to use an audiovisual recording device"

Would a vcr recorder, or TiVo constitute such a device, since it records audio and visual media?

Tinker - good thinking.

Bush isn't responsible for this damage. Abuse of our system is responsible for this damage. Abuse is happening because Americans are big pussies who won't stand up to the government (exhibit a: FECAL). We are responsible for this. Yet all we're doing is typing about it. Who cares? Bitching won't help but it's all we'll really do regardless.

"I submit that I am an audiovisual recording device. I have eyes and a brain that remembers." -tinker

What if you leave the theater and start reciting the words line for line? That's 3 years in prison, buddy. If you do good impressions, make it 5.

i've cussed four times since mike took over. i bet you didn't know that. it's true.

("bitching" doesn't count)

"Bush isn't responsible for this damage. Abuse of our system is responsible for this damage."

I couldn't have said it better.

Bush is lucky because he is the only president that does not have any intelectual property to steal.

My main reason for objecting to the video recording part of this is because I feel it's just a farce. The MPAA can say whatever they want, the sad part is legislators bought it, that's been proven by the fact that this legislation exists and was signed into law?!?!

Sherm seems to be correct on the split audio and video feeds. One could record them separately, then merge them in Premier. Who really cares though, I wouldn't want a crappy recording anyways!! Neither would most people, that's why this part of the legislation was stupid, it was unneccessary!!

Something else should be mentioned too. This legislation really was limited in scope, and it didn't have to be. Think about this, the Bill could have also had a section to make it a criminal offense to share any copyrighted works online, without authorization from the copyright holder!!! Perhaps legislators understand it's a very controversial subject, better left to the Supremes to bloody their noses with. Besides, by the internets nature, things are copied all the time to cache folders!!

"Frankly, I don't see what the big deal is, except that infringement now carries the same sentence as involuntary manslaughter."

Can I involontarily man Slauther Shitman instead since this is the same price?

I saw a debate on CSPAN. This is so companies can provide a service that sanitizes films for family viewing in accordance to the parameters of whoever is paying the bill. I really think this is all it is about, not much more.
Capt-n-Jack, I like your comments. I think the point is not to split the feeds, but to cut out offensive words as well as offensive visuals.

It allows the resale of a copyrighted move that has been edited by a third party.

How does this affect music sharing, if at all?

I suspect that Blockbuster has been doing this already, at least at one time in the company's history. Ever see Rodney Dangerfield's movie EASY MONEY? Jeff Altman plays his next door neighbor and Jeff's girlfriend is extraordinarily top heavy. There is one scene where her breasts pop out of her suit.
When I rented this movie from Blockbuster, the scene was not part of the movie anymore. I think Blockbuster has a political correct editing mechanism. Was it technically legal to practice this editing? Does this legislation address what is needed to settle a minor tiff between lawyers?

"Frankly, I don't see what the big deal is, except that infringement now carries the same sentence as involuntary manslaughter."

That is what's wrong with this legislation. It is now of equal importance for the accidental DEATH of a human life, and making bad copies of movies in a theater. Again, the value of human life is demoted to such pathetic lower levels, that man no longer sees the value of a human life.