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CITE

    18 USC Sec. 2318                                            01/05/2009

EXPCITE

    TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
    PART I - CRIMES
    CHAPTER 113 - STOLEN PROPERTY

HEAD

    Sec. 2318. Trafficking in counterfeit labels, illicit labels, or
      counterfeit documentation or packaging

STATUTE

      (a)(1) (!1) Whoever, in any of the circumstances described in
    subsection (c), knowingly traffics in -
        (A) a counterfeit label or illicit label affixed to, enclosing,
      or accompanying, or designed to be affixed to, enclose, or
      accompany -
          (i) a phonorecord;
          (ii) a copy of a computer program;
          (iii) a copy of a motion picture or other audiovisual work;
          (iv) a copy of a literary work;
          (v) a copy of a pictorial, graphic, or sculptural work;
          (vi) a work of visual art; or
          (vii) documentation or packaging; or
        (B) 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" has the same meaning as in section
      2320(e) of this title;
        (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) Forfeiture and Destruction of Property; 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.
      (e) 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 (!2) unless it is commenced within 3
      years after the date on which the claimant discovers the
      violation of subsection (a).

SOURCE

    (Added Pub. L. 87-773, Sec. 1, Oct. 9, 1962, 76 Stat. 775; amended
    Pub. L. 93-573, title I, Sec. 103, Dec. 31, 1974, 88 Stat. 1873;
    Pub. L. 94-553, title I, Sec. 111, Oct. 19, 1976, 90 Stat. 2600;
    Pub. L. 97-180, Sec. 2, May 24, 1982, 96 Stat. 91; Pub. L. 101-647,
    title XXXV, Sec. 3567, Nov. 29, 1990, 104 Stat. 4928; Pub. L. 103-
    272, Sec. 5(e)(10), July 5, 1994, 108 Stat. 1374; Pub. L. 103-322,
    title XXXIII, Sec. 330016(1)(U), Sept. 13, 1994, 108 Stat. 2148;
    Pub. L. 104-153, Sec. 4(a), (b)(1), July 2, 1996, 110 Stat. 1386,
    1387; Pub. L. 108-482, title I, Sec. 102(a), (b), Dec. 23, 2004,
    118 Stat. 3912, 3914; Pub. L. 109-181, Sec. 2(c)(2), Mar. 16, 2006,
    120 Stat. 288; Pub. L. 110-403, title II, Sec. 202, Oct. 13, 2008,
    122 Stat. 4260.)

AMENDMENTS

      2008 - Subsec. (a). Pub. L. 110-403, Sec. 202(1), designated
    existing provisions as par. (1) and redesignated former pars. (1)
    and (2) as subpars. (A) and (B), respectively, of par. (1), and
    former subpars. (A) to (G) as cls. (i) to (vii), respectively, of
    subpar. (A).
      Subsec. (d). Pub. L. 110-403, Sec. 202(2), amended subsec. (d)
    generally. Prior to amendment, subsec. (d) read as follows: "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."
      Subsecs. (e), (f). Pub. L. 110-403, Sec. 202(3), redesignated
    subsec. (f) as (e) and struck out former subsec. (e) which read as
    follows: "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)."
      2006 - Subsec. (b)(2). Pub. L. 109-181 added par. (2) and struck
    out former par. (2) which read as follows: "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;".
      2004 - Pub. L. 108-482, Sec. 102(a)(1), substituted "Trafficking
    in counterfeit labels, illicit labels, or counterfeit documentation
    or packaging" for "Trafficking in counterfeit labels for
    phonorecords, copies of computer programs or computer program
    documentation or packaging, and copies of motion pictures or other
    audio visual works, and trafficking in counterfeit computer program
    documentation or packaging" in section catchline.
      Subsec. (a). Pub. L. 108-482, Sec. 102(a)(2), added subsec. (a)
    and struck out former subsec. (a) which read as follows: "Whoever,
    in any of the circumstances described in subsection (c) of this
    section, knowingly traffics in a counterfeit label affixed or
    designed to be affixed to a phonorecord, or a copy of a computer
    program or documentation or packaging for a computer program, or a
    copy of a motion picture or other audiovisual work, and whoever, in
    any of the circumstances described in subsection (c) of this
    section, knowingly traffics in counterfeit documentation or
    packaging for a computer program, shall be fined under this title
    or imprisoned for not more than five years, or both."
      Subsec. (b)(2). Pub. L. 108-482, Sec. 102(a)(3)(A), struck out
    "and" after the semicolon at end.
      Subsec. (b)(3). Pub. L. 108-482, Sec. 102(a)(3)(B), substituted "
    'audiovisual work', 'literary work', 'pictorial, graphic, or
    sculptural work', 'sound recording', 'work of visual art', and
    'copyright owner' have" for "and 'audiovisual work' have" and a
    semicolon for the period at end.
      Subsec. (b)(4) to (6). Pub. L. 108-482, Sec. 102(a)(3)(C), added
    pars. (4) to (6).
      Subsec. (c)(3). Pub. L. 108-482, Sec. 102(a)(4)(A), added par.
    (3) and struck former par. (3) which read as follows: "the
    counterfeit label is affixed to or encloses, or is designed to be
    affixed to or enclose, a copy of a copyrighted computer program or
    copyrighted documentation or packaging for a computer program, a
    copyrighted motion picture or other audiovisual work, or a
    phonorecord of a copyrighted sound recording; or".
      Subsec. (c)(4). Pub. L. 108-482, Sec. 102(a)(4)(B), struck out
    "for a computer program" after "packaging".
      Subsec. (d). Pub. L. 108-482, Sec. 102(a)(5), inserted "or
    illicit labels" after "counterfeit labels" in two places and
    inserted ", and of any equipment, device, or material used to
    manufacture, reproduce, or assemble the counterfeit labels or
    illicit labels" before period at end.
      Subsec. (f). Pub. L. 108-482, Sec. 102(b), added subsec. (f).
      1996 - Pub. L. 104-153, Sec. 4(b)(1), substituted "Trafficking in
    counterfeit labels for phonorecords, copies of computer programs or
    computer program documentation or packaging, and copies of motion
    pictures or other audio visual works, and trafficking in
    counterfeit computer program documentation or packaging" for
    "Trafficking in counterfeit labels for phonorecords and copies of
    motion pictures or other audiovisual works" in section catchline.
      Subsec. (a). Pub. L. 104-153, Sec. 4(a)(1), substituted "a
    computer program or documentation or packaging for a computer
    program, or a copy of a motion picture or other audiovisual work,
    and whoever, in any of the circumstances described in subsection
    (c) of this section, knowingly traffics in counterfeit
    documentation or packaging for a computer program," for "a motion
    picture or other audiovisual work,".
      Subsec. (b)(3). Pub. L. 104-153, Sec. 4(a)(2), inserted "
    'computer program'," after " 'motion picture',".
      Subsec. (c)(2). Pub. L. 104-153, Sec. 4(a)(3)(A), struck out "or"
    at end.
      Subsec. (c)(3). Pub. L. 104-153, Sec. 4(a)(3)(B), inserted "a
    copy of a copyrighted computer program or copyrighted documentation
    or packaging for a computer program," after "enclose," and
    substituted "; or" for period at end.
      Subsec. (c)(4). Pub. L. 104-153, Sec. 4(a)(3)(C), added par. (4).
      1994 - Subsec. (a). Pub. L. 103-322 substituted "fined under this
    title" for "fined not more than $250,000".
      Subsec. (c)(1). Pub. L. 103-272 substituted "section 46501 of
    title 49" for "section 101 of the Federal Aviation Act of 1958".
      1990 - Pub. L. 101-647 struck out comma after "phonorecords" in
    section catchline.
      1982 - Pub. L. 97-180 substituted "Trafficking in counterfeit
    labels for phonorecords, and copies of motion pictures or other
    audiovisual works" for "Transportation, sale or receipt of
    phonograph records bearing forged or counterfeit labels" in section
    catchline.
      Subsec. (a). Pub. L. 97-180 substituted provision that violators
    of this section shall be fined not more than $250,000 or imprisoned
    for not more than five years or both for provision that whoever
    knowingly and with fraudulent intent transported, caused to be
    transported, received, sold, or offered for sale in interstate or
    foreign commerce any phonograph record, disk, wire, tape, film, or
    other article on which sounds were recorded, to which or upon which
    was stamped, pasted, or affixed any forged or counterfeited label,
    knowing the label to have been falsely made, forged, or
    counterfeited would be fined not more than $10,000 or imprisoned
    for not more than one year, or both, for the first such offense and
    would be fined not more than $25,000 or imprisoned for not more
    than two years, or both, for any subsequent offense.
      Subsecs. (b) to (e). Pub. L. 97-180 added subsecs. (b) and (c),
    redesignated former subsecs. (b) and (c) as (d) and (e),
    respectively, and in subsec. (d) as so redesignated struck out the
    comma after "judgment of conviction shall".
      1976 - Pub. L. 94-553 designated existing provisions as subsec.
    (a) and substituted "$10,000" for "$25,000" and "$25,000" for
    "$50,000", and added subsecs. (b) and (c).
      1974 - Pub. L. 93-573 substituted "not more than $25,000 or
    imprisoned for not more than one year, or both, for the first
    offense and shall be fined not more than $50,000 or imprisoned not
    more than 2 years, or both, for any subsequent offense" for "not
    more than $1,000 or imprisoned not more than one year or both".
                     EFFECTIVE DATE OF 1976 AMENDMENT
      Amendment by Pub. L. 94-553 effective Jan. 1, 1978, see section
    102 of Pub. L. 94-553, set out as a note preceding section 101 of
    Title 17, Copyrights.
        OTHER RIGHTS NOT AFFECTED BY ANTI-COUNTERFEITING PROVISIONS
      Pub. L. 108-482, title I, Sec. 103, Dec. 23, 2004, 118 Stat.
    3915, provided that:
      "(a) Chapters 5 and 12 of Title 17; Electronic Transmissions. -
    The amendments made by this title [amending this section] -
        "(1) shall not enlarge, diminish, or otherwise affect any
      liability or limitations on liability under sections 512, 1201 or
      1202 of title 17, United States Code; and
        "(2) shall not be construed to apply -
          "(A) in any case, to the electronic transmission of a genuine
        certificate, licensing document, registration card, similar
        labeling component, or documentation or packaging described in
        paragraph (4) or (5) of section 2318(b) of title 18, United
        States Code, as amended by this title; and
          "(B) in the case of a civil action under section 2318(f) [now
        2318(e)] of title 18, United States Code, to the electronic
        transmission of a counterfeit label or counterfeit
        documentation or packaging defined in paragraph (1) or (6) of
        section 2318(b) of title 18, United States Code.
      "(b) Fair Use. - The amendments made by this title shall not
    affect the fair use, under section 107 of title 17, United States
    Code, of a genuine certificate, licensing document, registration
    card, similar labeling component, or documentation or packaging
    described in paragraph (4) or (5) of section 2318(b) of title 18,
    United States Code, as amended by this title."

FOOTNOTE

    (!1) So in original. No par. (2) has been enacted.
    (!2) So in original. Probably should be "this subsection".
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