PUBLIC LAW 109–9—APR. 27, 2005

FAMILY ENTERTAINMENT AND COPYRIGHT ACT OF 2005

119 STAT. 218 PUBLIC LAW 109–9—APR. 27, 2005

Public Law 109–9

109th Congress

An Act

Apr. 27, 2005 [S. 167]

Family Entertainment and Copyright Act of 2005.

17 USC 101 note.

Artists’ Rights

To provide for the protection of intellectual property rights, 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 ‘‘Family Entertainment and Copy- right Act of 2005’’.

TITLE I—ARTISTS’ RIGHTS AND THEFT

and Theft Prevention of 2005.

Act

PREVENTION

17 USC 101 note.

SEC. 101. SHORT TITLE.

This title may be cited as the ‘‘Artists’ Rights and Theft Preven- tion 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:

‘‘§ 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 audio- visual 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 con- victed 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

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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 reason- able 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 exhi-
bition facility’, and ‘transmit’ have, respectively, the meanings
given those terms in section 101 of title 17.
‘‘(2) AUDIOVISUAL RECORDING DEVICE.—The term ‘audio-
visual 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 pri-
mary purpose of the device.’’.

119 STAT. 220 PUBLIC LAW 109–9—APR. 27, 2005

(b) CLERICAL AMENDMENT.—The table of sections at the begin- ning 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 fa- cility.’’.

(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 com- puter 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 expecta- tion 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—

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(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 distribu- tion’ 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 COMMER-

CIAL 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 dis- tribution.
‘‘(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—

Deadlines.

119 STAT. 222 PUBLIC LAW 109–9—APR. 27, 2005

‘‘(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

28 USC 994 note. Deadline.

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 Commis- sion 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 COMMIS- SION.—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 sub- section (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;

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(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 INFRINGE- MENT FOR SKIPPING AUDIO AND VIDEO CONTENT IN MOTION PIC- TURES

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 impercep- tible’ 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

Family Movie Act of 2005.

17 USC 101 note.

119 STAT. 224 PUBLIC LAW 109–9—APR. 27, 2005

Notice.

Applicability. Effective date.

National Film Preservation Act of 2005.

2 USC 179l note.

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 perform- ance 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 enact- ment 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 pur- poses’’, approved July 5, 1946 (15 U.S.C. 1051 et seq.).

TITLE III—NATIONAL FILM PRESERVATION

Subtitle A—Reauthorization of the

National Film Preservation Board

SEC. 301. SHORT TITLE.

This subtitle may be cited as the ‘‘National Film Preservation
Act of 2005’’.

SEC. 302. REAUTHORIZATION AND AMENDMENT.

(a) DUTIES OF THE LIBRARIAN OF CONGRESS.—Section 103 of the National Film Preservation Act of 1996 (2 U.S.C. 179m) is amended—
(1) in subsection (b)—
(A) by striking ‘‘film copy’’ each place that term appears and inserting ‘‘film or other approved copy’’;
(B) by striking ‘‘film copies’’ each place that term appears and inserting ‘‘film or other approved copies’’; and

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(C) in the third sentence, by striking ‘‘copyrighted’’ and inserting ‘‘copyrighted, mass distributed, broadcast, or published’’; and
(2) by adding at the end the following:
‘‘(c) COORDINATION OF PROGRAM WITH OTHER COLLECTION,
PRESERVATION, AND ACCESSIBILITY ACTIVITIES.—In carrying out the
comprehensive national film preservation program for motion pic-
tures established under the National Film Preservation Act of 1992,
the Librarian, in consultation with the Board established pursuant
to section 104, shall—
‘‘(1) carry out activities to make films included in the
National Film registry more broadly accessible for research
and educational purposes, and to generate public awareness
and support of the Registry and the comprehensive national
film preservation program;
‘‘(2) review the comprehensive national film preservation
plan, and amend it to the extent necessary to ensure that
it addresses technological advances in the preservation and
storage of, and access to film collections in multiple formats;
and
‘‘(3) wherever possible, undertake expanded initiatives to ensure the preservation of the moving image heritage of the United States, including film, videotape, television, and born digital moving image formats, by supporting the work of the National Audio-Visual Conservation Center of the Library of Congress, and other appropriate nonprofit archival and preservation organizations.’’.
(b) NATIONAL FILM PRESERVATION BOARD.—Section 104 of the National Film Preservation Act of 1996 (2 U.S.C. 179n) is amended—
(1) in subsection (a)(1) by striking ‘‘20’’ and inserting ‘‘22’’; (2) in subsection (a)(2) by striking ‘‘three’’ and inserting
‘‘5’’;
and
(3) in subsection (d) by striking ‘‘11’’ and inserting ‘‘12’’; (4) by striking subsection (e) and inserting the following:
‘‘(e) REIMBURSEMENT OF EXPENSES.—Members of the Board
shall serve without pay, but may receive travel expenses, including
per diem in lieu of subsistence, in accordance with sections 5702
and 5703 of title 5, United States Code.’’.
(c) NATIONAL FILM REGISTRY.—Section 106 of the National Film
Preservation Act of 1996 (2 U.S.C. 179p) is amended by adding
at the end the following:
‘‘(e) NATIONAL AUDIO-VISUAL CONSERVATION CENTER.—The
Librarian shall utilize the National Audio-Visual Conservation
Center of the Library of Congress at Culpeper, Virginia, to ensure that preserved films included in the National Film Registry are stored in a proper manner, and disseminated to researchers, scholars, and the public as may be appropriate in accordance with—
‘‘(1) title 17, United States Code; and
‘‘(2) the terms of any agreements between the Librarian
and persons who hold copyrights to such audiovisual works.’’.
(d) USE OF SEAL.—Section 107(a) of the National Film Preserva-
tion Act of 1996 (2 U.S.C. 179q(a)) is amended—
(1) in paragraph (1), by inserting ‘‘in any format’’ after
‘‘or any copy’’; and

119 STAT. 226 PUBLIC LAW 109–9—APR. 27, 2005

National Film Preservation Foundation Reauthorization Act of 2005.

36 USC 101 note.

Preservation of Orphan Works Act.

17 USC 101 note.

(2) in paragraph (2), by striking ‘‘or film copy’’ and inserting
‘‘in any format’’.
(e) EFFECTIVE DATE.—Section 113 of the National Film
Preservation Act of 1996 (2 U.S.C. 179w) is amended by striking
‘‘7’’ and inserting ‘‘13’’.

Subtitle B—Reauthorization of the

National Film Preservation Foundation

SEC. 311. SHORT TITLE.

This subtitle may be cited as the ‘‘National Film Preservation
Foundation Reauthorization Act of 2005’’.

SEC. 312. REAUTHORIZATION AND AMENDMENT.

(a) BOARD OF DIRECTORS.—Section 151703 of title 36, United
States Code, is amended—
(1) in subsection (b)(2)(A), by striking ‘‘nine’’ and inserting
‘‘12’’; and
(2) in subsection (b)(4), by striking the second sentence
and inserting ‘‘There shall be no limit to the number of terms
to which any individual may be appointed.’’.
(b) POWERS.—Section 151705 of title 36, United States Code,
is amended in subsection (b) by striking ‘‘District of Columbia’’
and inserting ‘‘the jurisdiction in which the principal office of the
corporation is located’’.
(c) PRINCIPAL OFFICE.—Section 151706 of title 36, United States
Code, is amended by inserting ‘‘, or another place as determined by the board of directors’’ after ‘‘District of Columbia’’.
(d) AUTHORIZATION OF APPROPRIATIONS.—Section 151711 of title
36, United States Code, is amended by striking subsections (a)
and (b) and inserting the following:
‘‘(a) AUTHORIZATION OF APPROPRIATIONS.—There are authorized
to be appropriated to the Library of Congress amounts necessary
to carry out this chapter, not to exceed $530,000 for each of the
fiscal years 2005 through 2009. These amounts are to be made
available to the corporation to match any private contributions
(whether in currency, services, or property) made to the corporation
by private persons and State and local governments.
‘‘(b) LIMITATION RELATED TO ADMINISTRATIVE EXPENSES.—
Amounts authorized under this section may not be used by the
corporation for management and general or fundraising expenses
as reported to the Internal Revenue Service as part of an annual
information return required under the Internal Revenue Code of
1986.’’.

TITLE IV—PRESERVATION OF ORPHAN WORKS

SEC. 401. SHORT TITLE.

This title may be cited as the ‘‘Preservation of Orphan Works
Act’’.

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SEC. 402. REPRODUCTION OF COPYRIGHTED WORKS BY LIBRARIES AND ARCHIVES.

Section 108(i) of title 17, United States Code, is amended by striking ‘‘(b) and (c)’’ and inserting ‘‘(b), (c), and (h)’’.
Approved April 27, 2005.

LEGISLATIVE HISTORY—S. 167:

HOUSE REPORTS: No. 109–33, Pt. 1 (Comm. on the Judiciary). CONGRESSIONAL RECORD, Vol. 151 (2005):

Feb. 1, considered and passed Senate. Apr. 19, considered and passed House.

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