18 U.S.C. § 2318 : US Code - Section 2318: Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging

Search 18 U.S.C. § 2318 : US Code - Section 2318: Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging

(a) Whoever, in any of the circumstances described in subsection
(c), knowingly traffics in -
(1) a counterfeit label or illicit label affixed to, enclosing,
or accompanying, or designed to be affixed to, enclose, or
accompany -
(A) a phonorecord;
(B) a copy of a computer program;
(C) a copy of a motion picture or other audiovisual work;
(D) a copy of a literary work;
(E) a copy of a pictorial, graphic, or sculptural work;
(F) a work of visual art; or
(G) documentation or packaging; or
(2) counterfeit documentation or packaging,
shall be fined under this title or imprisoned for not more than 5
years, or both.
(b) As used in this section -
(1) the term "counterfeit label" means an identifying label or
container that appears to be genuine, but is not;
(2) the term "traffic" means to transport, transfer or
otherwise dispose of, to another, as consideration for anything
of value or to make or obtain control of with intent to so
transport, transfer or dispose of;
(3) the terms "copy", "phonorecord", "motion picture",
"computer program", "audiovisual work", "literary work",
"pictorial, graphic, or sculptural work", "sound recording",
"work of visual art", and "copyright owner" have, respectively,
the meanings given those terms in section 101 (relating to
definitions) of title 17;
(4) the term "illicit label" means a genuine certificate,
licensing document, registration card, or similar labeling
component -
(A) that is used by the copyright owner to verify that a
phonorecord, a copy of a computer program, a copy of a motion
picture or other audiovisual work, a copy of a literary work, a
copy of a pictorial, graphic, or sculptural work, a work of
visual art, or documentation or packaging is not counterfeit or
infringing of any copyright; and
(B) that is, without the authorization of the copyright owner
-
(i) distributed or intended for distribution not in
connection with the copy, phonorecord, or work of visual art
to which such labeling component was intended to be affixed
by the respective copyright owner; or
(ii) in connection with a genuine certificate or licensing
document, knowingly falsified in order to designate a higher
number of licensed users or copies than authorized by the
copyright owner, unless that certificate or document is used
by the copyright owner solely for the purpose of monitoring
or tracking the copyright owner's distribution channel and
not for the purpose of verifying that a copy or phonorecord
is noninfringing;
(5) the term "documentation or packaging" means documentation
or packaging, in physical form, for a phonorecord, copy of a
computer program, copy of a motion picture or other audiovisual
work, copy of a literary work, copy of a pictorial, graphic, or
sculptural work, or work of visual art; and
(6) the term "counterfeit documentation or packaging" means
documentation or packaging that appears to be genuine, but is
not.
(c) The circumstances referred to in subsection (a) of this
section are -
(1) the offense is committed within the special maritime and
territorial jurisdiction of the United States; or within the
special aircraft jurisdiction of the United States (as defined in
section 46501 of title 49);
(2) the mail or a facility of interstate or foreign commerce is
used or intended to be used in the commission of the offense;
(3) the counterfeit label or illicit label is affixed to,
encloses, or accompanies, or is designed to be affixed to,
enclose, or accompany -
(A) a phonorecord of a copyrighted sound recording or
copyrighted musical work;
(B) a copy of a copyrighted computer program;
(C) a copy of a copyrighted motion picture or other
audiovisual work;
(D) a copy of a literary work;
(E) a copy of a pictorial, graphic, or sculptural work;
(F) a work of visual art; or
(G) copyrighted documentation or packaging; or
(4) the counterfeited documentation or packaging is
copyrighted.
(d) When any person is convicted of any violation of subsection
(a), the court in its judgment of conviction shall in addition to
the penalty therein prescribed, order the forfeiture and
destruction or other disposition of all counterfeit labels or
illicit labels and all articles to which counterfeit labels or
illicit labels have been affixed or which were intended to have had
such labels affixed, and of any equipment, device, or material used
to manufacture, reproduce, or assemble the counterfeit labels or
illicit labels.
(e) Except to the extent they are inconsistent with the
provisions of this title, all provisions of section 509, title 17,
United States Code, are applicable to violations of subsection (a).
(f) Civil Remedies. -
(1) In general. - Any copyright owner who is injured, or is
threatened with injury, by a violation of subsection (a) may
bring a civil action in an appropriate United States district
court.
(2) Discretion of court. - In any action brought under
paragraph (1), the court -
(A) may grant 1 or more temporary or permanent injunctions on
such terms as the court determines to be reasonable to prevent
or restrain a violation of subsection (a);
(B) at any time while the action is pending, may order the
impounding, on such terms as the court determines to be
reasonable, of any article that is in the custody or control of
the alleged violator and that the court has reasonable cause to
believe was involved in a violation of subsection (a); and
(C) may award to the injured party -
(i) reasonable attorney fees and costs; and
(ii)(I) actual damages and any additional profits of the
violator, as provided in paragraph (3); or
(II) statutory damages, as provided in paragraph (4).
(3) Actual damages and profits. -
(A) In general. - The injured party is entitled to recover -
(i) the actual damages suffered by the injured party as a
result of a violation of subsection (a), as provided in
subparagraph (B) of this paragraph; and
(ii) any profits of the violator that are attributable to a
violation of subsection (a) and are not taken into account in
computing the actual damages.
(B) Calculation of damages. - The court shall calculate
actual damages by multiplying -
(i) the value of the phonorecords, copies, or works of
visual art which are, or are intended to be, affixed with,
enclosed in, or accompanied by any counterfeit labels,
illicit labels, or counterfeit documentation or packaging, by
(ii) the number of phonorecords, copies, or works of visual
art which are, or are intended to be, affixed with, enclosed
in, or accompanied by any counterfeit labels, illicit labels,
or counterfeit documentation or packaging.
(C) Definition. - For purposes of this paragraph, the "value"
of a phonorecord, copy, or work of visual art is -
(i) in the case of a copyrighted sound recording or
copyrighted musical work, the retail value of an authorized
phonorecord of that sound recording or musical work;
(ii) in the case of a copyrighted computer program, the
retail value of an authorized copy of that computer program;
(iii) in the case of a copyrighted motion picture or other
audiovisual work, the retail value of an authorized copy of
that motion picture or audiovisual work;
(iv) in the case of a copyrighted literary work, the retail
value of an authorized copy of that literary work;
(v) in the case of a pictorial, graphic, or sculptural
work, the retail value of an authorized copy of that work;
and
(vi) in the case of a work of visual art, the retail value
of that work.
(4) Statutory damages. - The injured party may elect, at any
time before final judgment is rendered, to recover, instead of
actual damages and profits, an award of statutory damages for
each violation of subsection (a) in a sum of not less than $2,500
or more than $25,000, as the court considers appropriate.
(5) Subsequent violation. - The court may increase an award of
damages under this subsection by 3 times the amount that would
otherwise be awarded, as the court considers appropriate, if the
court finds that a person has subsequently violated subsection
(a) within 3 years after a final judgment was entered against
that person for a violation of that subsection.
(6) Limitation on actions. - A civil action may not be
commenced under section (!1) unless it is commenced within 3
years after the date on which the claimant discovers the
violation of subsection (a).