NO ELECTRONIC THEFT (NET) ACT of 1997
[[Page 111 STAT. 2678]]
Public Law 105-147
105th Congress
An Act
To amend the provisions of titles 17 and
18, United States Code, to
provide greater copyright protection
by amending criminal copyright
infringement provisions, and for
other purposes.
<<NOTE: Dec. 16, 1997 - [H.R. 2265]>>
Be it enacted by the Senate and
House of Representatives of the
United States of America in Congress assembled,
<<NOTE: No Electronic Theft (NET) Act. 18
USC 2311 note.>>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``No Electronic Theft (NET) Act''.
SEC. 2. CRIMINAL INFRINGEMENT OF COPYRIGHTS.
(a) Definition of Financial Gain.--Section
101 of title 17, United
States Code, is amended by inserting after the
undesignated paragraph
relating to the term ``display'', the following
new paragraph:
``The term `financial gain' includes receipt, or expectation
of receipt,
of anything of value, including the receipt of other
copyrighted
works.''.
(b) Criminal Offenses.--Section
506(a) of title 17, United States
Code, is amended to read as follows:
``(a) Criminal Infringement.--Any
person who infringes a copyright
willfully either--
``(1) for purposes of commercial advantage or private
financial
gain, or
``(2) 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,
shall be punished as provided under section 2319
of title 18, United
States Code. For purposes of this subsection, evidence
of reproduction
or distribution of a copyrighted work, by itself,
shall not be
sufficient to establish willful infringement.''.
(c) Limitation on Criminal Proceedings.--Section
507(a) of title 17,
United States Code, is amended by striking ``three''
and inserting
``5''.
(d) Criminal Infringement of
a Copyright.--Section 2319 of title 18,
United States Code, is amended--
(1) in subsection (a), by striking ``subsection (b)'' and
inserting
``subsections (b) and (c)'';
(2) in subsection (b)--
(A) in the matter preceding paragraph (1), by
striking ``subsection (a) of this section'' and
inserting ``section 506(a)(1) of title 17''; and
(B) in paragraph (1)--
(i) by inserting ``including by electronic
means,'' after ``if the offense consists of the
reproduction or distribution,''; and
[[Page 111 STAT. 2679]]
(ii) by striking ``with a retail value of more
than $2,500'' and inserting ``which have a total
retail value of more than $2,500''; and
(3) by redesignating subsection (c) as subsection (e) and
inserting
after subsection (b) the following:
``(c) Any person who commits
an offense under section 506(a)(2) of
title 17, United States Code--
``(1) shall be imprisoned not more than 3 years, or fined in
the
amount set forth in this title, or both, if the offense
consists
of the reproduction or distribution of 10 or more
copies
or phonorecords of 1 or more copyrighted works, which
have
a total retail value of $2,500 or more;
``(2) shall be imprisoned not more than 6 years, or fined in
the
amount set forth in this title, or both, if the offense is a
second
or subsequent offense under paragraph (1); and
``(3) shall be imprisoned not more than 1 year, or fined in
the
amount set forth in this title, or both, if the offense
consists
of the reproduction or distribution of 1 or more copies
or phonorecords
of 1 or more copyrighted works, which have a
total
retail value of more than $1,000.
``(d)(1) During preparation of
the presentence report pursuant to
Rule 32(c) of the Federal Rules of Criminal Procedure,
victims of the
offense shall be permitted to submit, and the probation
officer shall
receive, 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) Persons permitted to submit
victim impact statements shall
include--
``(A) producers and sellers of legitimate works affected by
conduct
involved in the offense;
``(B) holders of intellectual property rights in such works;
and
``(C) the legal representatives of such producers, sellers,
and
holders.''.
(e) Unauthorized Fixation and
Trafficking of Live Musical
Performances.--Section 2319A of title 18, United
States Code, is
amended--
(1) by redesignating subsections (d) and (e) as subsections
(e)
and (f ), respectively; and
(2) by inserting after subsection (c) the following:
``(d) Victim Impact Statement.--(1)
During preparation of the
presentence report pursuant to Rule 32(c) of the
Federal Rules of
Criminal Procedure, victims of the offense shall
be permitted to submit,
and the probation officer shall receive, 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) Persons permitted to submit
victim impact statements shall
include--
``(A) producers and sellers of legitimate works affected by
conduct
involved in the offense;
``(B) holders of intellectual property rights in such works;
and
``(C) the legal representatives of such producers, sellers,
and
holders.''.
(f ) Trafficking in Counterfeit
Goods or Services.--Section 2320 of
title 18, United States Code, is amended--
(1) by redesignating subsections (d) and (e) as subsections
(e)
and (f ), respectively; and
(2) by inserting after subsection (c) the following:
[[Page 111 STAT. 2680]]
``(d)(1) During preparation of
the presentence report pursuant to
Rule 32(c) of the Federal Rules of Criminal Procedure,
victims of the
offense shall be permitted to submit, and the probation
officer shall
receive, 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) Persons permitted to submit
victim impact statements shall
include--
``(A) producers and sellers of legitimate goods or services
affected
by conduct involved in the offense;
``(B) holders of intellectual property rights in such goods
or services;
and
``(C) the legal representatives of such producers, sellers,
and
holders.''.
(g) Directive to Sentencing Commission.--(1)
Under the authority of
the Sentencing Reform Act of 1984 (Public Law 98-473;
98 Stat. 1987) and
section 21 of the Sentencing Act of 1987 (Public
Law 100-182; 101 Stat.
1271; 18 U.S.C. 994 note) (including the authority
to amend the
sentencing guidelines and policy statements), the
United States
Sentencing Commission shall ensure that the applicable
guideline range
for a defendant convicted of a crime against intellectual
property
(including offenses set forth at section 506(a)
of title 17, United
States Code, and sections 2319, 2319A, and 2320
of title 18, United
States Code) is sufficiently stringent to deter
such a crime and to
adequately reflect the additional considerations
set forth in paragraph
(2) of this subsection.
(2) In implementing paragraph
(1), the Sentencing Commission shall
ensure that the guidelines provide for consideration
of the retail value
and quantity of the items with respect to which
the crime against
intellectual property was committed.
SEC. 3. INFRINGEMENT BY UNITED STATES.
Section 1498(b) of title 28,
United States Code, is amended by
striking ``remedy of the owner of such copyright
shall be by action''
and inserting ``action which may be brought for
such infringement shall
be an action by the copyright owner''.
Approved December 16, 1997.
LEGISLATIVE HISTORY--H.R. 2265:
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HOUSE REPORTS: No. 105-339 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 143 (1997):
Nov. 4, considered and passed House.
Nov. 13, considered and passed Senate.
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