(Pub. L. 94–553, title I, § 101,Oct. 19, 1976, 90 Stat. 2585; Pub. L. 110–403, title I, § 102(a),Oct. 13, 2008, 122 Stat. 4258; Pub. L. 111–295, § 6(d),Dec. 9, 2010, 124 Stat. 3181.)
Historical and Revision Notes
house report no. 94–1476
The two subsections of section
deal respectively with the courts’ power to impound allegedly infringing articles during the time an action is pending, and to order the destruction or other disposition of articles found to be infringing. In both cases the articles affected include “all copies or phonorecords” which are claimed or found “to have been made or used in violation of the copyright owner’s exclusive rights,” and also “all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies of phonorecords may be reproduced.” The alternative phrase “made or used” in both subsections enables a court to deal as it sees fit with articles which, though reproduced and acquired lawfully, have been used for infringing purposes such as rentals, performances, and displays.
Articles may be impounded under subsection (a) “at any time while an action under this title is pending,” thus permitting seizures of articles alleged to be infringing as soon as suit has been filed and without waiting for an injunction. The same subsection empowers the court to order impounding “on such terms as it may deem reasonable.” The present Supreme Court rules with respect to seizure and impounding were issued even though there is no specific provision authorizing them in the copyright statute, and there appears no need for including a special provision on the point in the bill.
Under section 101(d) of the present statute [section 101(d) of former title 17], articles found to be infringing may be ordered to be delivered up for destruction. Section 503(b) of the bill would make this provision more flexible by giving the court discretion to order “destruction or other reasonable disposition” of the articles found to be infringing. Thus, as part of its final judgment or decree, the court could order the infringing articles sold, delivered to the plaintiff, or disposed of in some other way that would avoid needless waste and best serve the ends of justice.
References in Text
The Trademark Act, referred to in subsec. (a)(3), probably means the Trademark Act of 1946, act July 5, 1946, ch. 540, 60 Stat. 427
, also popularly known as the Lanham Act, which is classified generally to chapter
, Commerce and Trade. Section 32 of the Act is classified to section
. For complete classification of this Act to the Code, see Short Title note set out under section
The Federal Rules of Civil Procedure, referred to in subsec. (a)(3), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
2010—Subsec. (a)(1)(B). Pub. L. 111–295
substituted “copies or phonorecords” for “copies of phonorecords”.
2008—Subsec. (a). Pub. L. 110–403
amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.”