§ 2319C. Illicit digital transmission services

• (a) In this section—
  • (1) the terms “audiovisual work”, “computer program”, “copies”, “copyright owner”, “digital transmission”, “financial gain”, “motion picture”, “motion picture exhibition facility”, “perform”, “phonorecords”, “publicly” (with respect to performing a work), “sound recording”, and “transmit” have the meanings given those terms in section 101 of title 17 ;
  • (2) the term “digital transmission service” means a service that has the primary purpose of publicly performing works by digital transmission;
  • (3) the terms “publicly perform” and “public performance” refer to the exclusive rights of a copyright owner under paragraphs (4) and (6) of section 106 (relating to exclusive rights in copyrighted works) of title 17, as limited by sections 107 through 122 of title 17; and
  • (4) the term “work being prepared for commercial public performance” 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 public performance—
      • (i) the copyright owner has a reasonable expectation of commercial public performance; and
      • (ii) the copies or phonorecords of the work have not been commercially publicly performed in the United States by or with the authorization of the copyright owner; or
    • (B) a motion picture, if, at the time of unauthorized public performance, the motion picture—
      • (i)
        • (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 by or with the authorization of the copyright owner in a format intended to permit viewing outside a motion picture exhibition facility; or
      • (ii) had not been commercially publicly performed in the United States by or with the authorization of the copyright owner more than 24 hours before the unauthorized public performance.
• (b) It shall be unlawful for a person to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that—
  • (1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law;
  • (2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or
  • (3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law.
• (c) Any person who violates subsection (b) shall be, in addition to any penalties provided for under title 17 or any other law—
  • (1) fined under this title, imprisoned not more than 3 years, or both;
  • (2) fined under this title, imprisoned not more than 5 years, or both, if—
    • (A) the offense was committed in connection with 1 or more works being prepared for commercial public performance; and
    • (B) the person knew or should have known that the work was being prepared for commercial public performance; and
  • (3) fined under this title, imprisoned not more than 10 years, or both, if the offense is a second or subsequent offense under this section or section 2319(a).
• (d) Nothing in this section shall be construed to—
  • (1) affect the interpretation of any other provision of civil copyright law, including the limitations of liability set forth in section 512 of title 17 , or principles of secondary liability; or
  • (2) prevent any Federal or State authority from enforcing cable theft or theft of service laws that are not subject to preemption under section 301 of title 17 .