18 U.S.C. § 2319A — Unauthorized fixation of and trafficking

Page 578 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2319A AMENDMENTS 2008—Subsecs. (b)(2), (c)(2). Pub. L. 110–403, § 208(1), (2), inserted ‘‘is a felony and’’ after ‘‘the offense’’ and sub- stituted ‘‘subsection (a)’’ for ‘‘paragraph (1)’’. Subsec. (d)(3). Pub. L. 110–403, § 208(3), inserted ‘‘is a felony and’’ after ‘‘the offense’’ and ‘‘under subsection (a)’’ before the semicolon. Subsec. (d)(4). Pub. L. 110–403, § 208(4), inserted ‘‘is a felony and’’ after ‘‘the offense’’. 2005—Subsec. (a). Pub. L. 109–9, § 103(b)(1), substituted ‘‘Any person who’’ for ‘‘Whoever’’ and ‘‘, (c), and (d)’’ for ‘‘and (c) of this section’’. Subsec. (b). Pub. L. 109–9, § 103(b)(2), substituted ‘‘sec- tion 506(a)(1)(A)’’ for ‘‘section 506(a)(1)’’ in introductory provisions. Subsec. (c). Pub. L. 109–9, § 103(b)(3), substituted ‘‘sec- tion 506(a)(1)(B) of title 17’’ for ‘‘section 506(a)(2) of title 17, United States Code’’ in introductory provisions. Subsecs. (d), (e). Pub. L. 109–9, § 103(b)(4), (5), added subsec. (d) and redesignated former subsec. (d) as (e). Former subsec. (e) redesignated (f). Subsec. (f). Pub. L. 109–9, § 103(b)(4), (6), redesignated subsec. (e) as (f) and added pars. (3) and (4). 2002—Subsec. (e)(2). Pub. L. 107–273 substituted ‘‘107 through 122’’ for ‘‘107 through 120’’. 1997—Subsec. (a). Pub. L. 105–147, § 2(d)(1), substituted ‘‘subsections (b) and (c)’’ for ‘‘subsection (b)’’. Subsec. (b). Pub. L. 105–147, § 2(d)(2)(A), substituted ‘‘section 506(a)(1) of title 17’’ for ‘‘subsection (a) of this section’’ in introductory provisions. Subsec. (b)(1). Pub. L. 105–147, § 2(d)(2)(B), inserted ‘‘including by electronic means,’’ after ‘‘if the offense consists of the reproduction or distribution,’’ and sub- stituted ‘‘which have a total retail value of more than $2,500’’ for ‘‘with a retail value of more than $2,500’’. Pub. L. 105–80, substituted ‘‘at least 10 copies’’ for ‘‘at last 10 copies’’. Subsecs. (c) to (e). Pub. L. 105–147, § 2(d)(3), added sub- secs. (c) and (d) and redesignated former subsec. (c) as (e). 1992—Subsec. (b). Pub. L. 102–561, § 1, amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘Any person who commits an offense under subsection (a) of this section— ‘‘(1) shall be fined not more than $250,000 or impris- oned for not more than five years, or both, if the of- fense— ‘‘(A) involves the reproduction or distribution, during any one-hundred-and-eighty-day period, of at least one thousand phonorecords or copies in- fringing the copyright in one or more sound record- ings; ‘‘(B) involves the reproduction or distribution, during any one-hundred-and-eighty-day period, of at least sixty-five copies infringing the copyright in one or more motion pictures or other audiovisual works; or ‘‘(C) is a second or subsequent offense under ei- ther of subsection (b)(1) or (b)(2) of this section, where a prior offense involved a sound recording, or a motion picture or other audiovisual work; ‘‘(2) shall be fined not more than $250,000 or impris- oned for not more than two years, or both, if the of- fense— ‘‘(A) involves the reproduction or distribution, during any one-hundred-and-eighty-day period, of more than one hundred but less than one thousand phonorecords or copies infringing the copyright in one or more sound recordings; or ‘‘(B) involves the reproduction or distribution, during any one-hundred-and-eighty-day period, of more than seven but less than sixty-five copies in- fringing the copyright in one or more motion pic- tures or other audiovisual works; and ‘‘(3) shall be fined not more than $25,000 or impris- oned for not more than one year, or both, in any other case.’’ Subsec. (c). Pub. L. 102–561, § 2, substituted ‘‘ ‘phono- record’ ’’ for ‘‘ ‘sound recording’, ‘motion picture’, ‘audiovisual work’, ‘phonorecord’,’’ in par. (1) and ‘‘120’’ for ‘‘118’’ in par. (2). § 2319A. Unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances (a) OFFENSE.—Whoever, without the consent of the performer or performers involved, know- ingly and for purposes of commercial advantage or private financial gain— (1) fixes the sounds or sounds and images of a live musical performance in a copy or phono- record, or reproduces copies or phonorecords of such a performance from an unauthorized fixation; (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance; or (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fix- ations occurred in the United States; shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, or both, or if the offense is a second or subsequent offense, shall be imprisoned for not more than 10 years or fined in the amount set forth in this title, or both. (b) FORFEITURE AND DESTRUCTION OF PROP- ERTY; 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. (c) SEIZURE AND FORFEITURE.—If copies or phonorecords of sounds or sounds and images of a live musical performance are fixed outside of the United States without the consent of the performer or performers involved, such copies or phonorecords are subject to seizure and for- feiture in the United States in the same manner as property imported in violation of the customs laws. The Secretary of Homeland Security shall issue regulations by which any performer may, upon payment of a specified fee, be entitled to notification by United States Customs and Bor- der Protection of the importation of copies or phonorecords that appear to consist of unau- thorized fixations of the sounds or sounds and images of a live musical performance. (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 per- mitted to submit, and the probation officer shall receive, a victim impact statement that identi- fies the victim of the offense and the extent and scope of the injury and loss suffered by the vic- tim, 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 pro- ducers, sellers, and holders. (e) DEFINITIONS.—As used in this section— Page 579 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2319B 1 See References in Text note below. (1) the terms ‘‘copy’’, ‘‘fixed’’, ‘‘musical work’’, ‘‘phonorecord’’, ‘‘reproduce’’, ‘‘sound recordings’’, and ‘‘transmit’’ mean those terms within the meaning of title 17; and (2) the term ‘‘traffic’’ has the same meaning as in section 2320(e) 1 of this title. (f) APPLICABILITY.—This section shall apply to any Act or Acts that occur on or after the date of the enactment of the Uruguay Round Agree- ments Act. (Added Pub. L. 103–465, title V, § 513(a), Dec. 8, 1994, 108 Stat. 4974; amended Pub. L. 105–147, § 2(e), Dec. 16, 1997, 111 Stat. 2679; Pub. L. 109–181, § 2(c)(1), Mar. 16, 2006, 120 Stat. 288; Pub. L. 110–403, title II, § 203, Oct. 13, 2008, 122 Stat. 4261.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Criminal Procedure, referred to in subsec. (d)(1), are set out in the Appendix to this title. Section 2320 of this title, referred to in subsec. (e)(2), was amended generally by Pub. L. 112–81, div. A, title VIII, § 818(h), Dec. 31, 2011, 125 Stat. 1497, and, as so amended, provisions similar to those formerly appear- ing in subsec. (e) are now contained in subsec. (f). The date of the enactment of the Uruguay Round Agreements Act, referred to in subsec. (f), is the date of enactment of Pub. L. 103–465, which was approved Dec. 8, 1994. AMENDMENTS 2008—Subsec. (b). Pub. L. 110–403, § 203(a), amended subsec. (b) generally. Prior to amendment, text read as follows: ‘‘When a person is convicted of a violation of subsection (a), the court shall order the forfeiture and destruction of any copies or phonorecords created in violation thereof, as well as any plates, molds, mat- rices, masters, tapes, and film negatives by means of which such copies or phonorecords may be made. The court may also, in its discretion, order the forfeiture and destruction of any other equipment by means of which such copies or phonorecords may be reproduced, taking into account the nature, scope, and proportion- ality of the use of the equipment in the offense.’’ Subsec. (c). Pub. L. 110–403, § 203(b), substituted ‘‘The Secretary of Homeland Security shall issue regulations by which any performer may, upon payment of a speci- fied fee, be entitled to notification by United States Customs and Border Protection of the importation of copies or phonorecords that appear to consist of unau- thorized fixations of the sounds or sounds and images of a live musical performance.’’ for ‘‘The Secretary of the Treasury shall, not later than 60 days after the date of the enactment of the Uruguay Round Agreements Act, issue regulations to carry out this subsection, in- cluding regulations by which any performer may, upon payment of a specified fee, be entitled to notification by the United States Customs Service of the importa- tion of copies or phonorecords that appear to consist of unauthorized fixations of the sounds or sounds and im- ages of a live musical performance.’’ 2006—Subsec. (e)(2). Pub. L. 109–181 added par. (2) and struck out former par. (2) which read as follows: ‘‘the term ‘traffic in’ means transport, transfer, or otherwise dispose of, to another, as consideration for anything of value, or make or obtain control of with intent to transport, transfer, or dispose of.’’ 1997—Subsecs. (d) to (f). Pub. L. 105–147 added subsec. (d) and redesignated former subsecs. (d) and (e) as (e) and (f), respectively. Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS For transfer of functions, personnel, assets, and li- abilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Sec- retary of Homeland Security, and for treatment of re- lated references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of Novem- ber 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Se- curity, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended gen- erally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6. § 2319B. Unauthorized recording of Motion pic- tures 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 per- formance of such work in a motion picture exhi- bition 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 re- cording device in a motion picture exhibition fa- cility may be considered as evidence in any pro- ceeding to determine whether that person com- mitted 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 OF PROP- ERTY; 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. (c) AUTHORIZED ACTIVITIES.—This section does not prevent any lawfully authorized investiga- tive, 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).