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HQ 473185





December 23, 2002

COP-1 RR:IT:IP 473185 CK

CATEGORY: COPYRIGHT

Mr. Ruben Garcia, Jr.
Director, Worldwide Optical Operations
Worldwide Anti-Piacy
Motion Picture Association
15503 Ventura Blvd.
Encino, CA 91436

RE: Contact information for copyright infringement of MPAA members

Dear Mr. Garcia:

This is in reply to your letter dated September 17, 2002, in which you requested a binding ruling on behalf of the Motion Picture Association of America. You would like that when Customs, pursuant to 19 CFR 133.43(b), sends certain information or product samples to your member company studios regarding potentially pirated copies of motion pictures, we also send this information to the trade association to which the rights holder belongs. You also request information regarding seizures of clearly piratical merchandise under 19 CFR 133.42.

FACTS:

According to its submission, one of the primary missions of the Motion Picture Association of America (“MPAA”) is to address intellectual property infringement of its member companies. To address this problem the MPAA directs a comprehensive anti-piracy program from it headquarters in Encino, California. Some of the MPAA member companies are: Columbia Pictures Industries, Inc./TriStar Pictures, Inc.; Disney Enterprises, Inc.; Metro-Goldwyn-Mayer Studios, Inc./UA; Paramount Pictures Corp.; Twentieth Century Fox Film Corp.; Universal City Studios, LLLP; and Time Warner Entertainment Co., L.P.

In an effort to enhance the MPAA’s ability to be more responsive to law enforcement officials worldwide and to facilitate joint efforts with Customs, MPAA asks Customs to agree to send information and/or product samples to the MPAA, as well as to the MPAA’s member companies.

The MPAA’s member companies have executed affidavits authorizing Customs to send this information to the MPAA, as well as to the studios themselves. These affidavits also authorize Customs to send product samples to the MPAA for the purpose of laboratory comparison and examination pursuant to 19 CFR 133.43(c). The MPAA’s Anti-Piracy office in Encino, California will serve as the repository for the original affidavits executed by legal representatives of each member company. The release of any samples by Customs is envisioned to be completed in accordance with established Customs procedures (19 CFR 133.43(c)).

Six copies of executed affidavits were provided with this ruling request from the legal representatives of: Warner Bros., a division of Time Warner Entertainment Co., Ltd.; Twentieth Century Fox Film Corp. and Twentieth Century Fox Home Entertainment, Inc.; Disney Enterprises, Inc.; Columbia TriStar Home Entertainment; Universal City Studios, Inc.; and Paramount Pictures Corp. All six affidavits state that the MPAA is appointed as the recipient of any information that Customs is authorized to disclose, pursuant to 19 CFR §§ 133.21, 133.25, 133.42, and 133.43.

ISSUE:

Whether Customs may include the MPAA as a contact in the IPR Module for purposes of disclosure of certain information pursuant to 19 CFR §§ 133.21, 133.25, 133.42, and 133.43?

LAW AND ANALYSIS:

Section 133.42(d) and (e) of the Customs Regulations (19 CFR 133.42(d) & (e)) provides:

(d) Disclosure.

When merchandise is seized under this section, Customs shall disclose to the owner of the copyright the following information, if available, within 30 days, excluding weekends and holidays, of the date of the notice of seizure:

(1) The date of importation;
(2) The port of entry;
(3) A description of the merchandise;
(4) The quantity involved;
(5) The name and address of the manufacturer; (6) The country of origin of the merchandise; (7) The name and address of the exporter; and (8) The name and address of the importer.

(e) Samples available to the copyright owner. At any time following seizure of the merchandise, Customs may provide a sample of the suspect merchandise to the owner of the copyright for examination, testing, or any other use in pursuit of a related private civil remedy for copyright infringement. To obtain a sample under this section, the copyright owner must furnish to Customs a bond in the form and amount specified by the port director, conditioned to hold the United States, its officers and employees, and the importer or owner of the imported article harmless from any loss or damage resulting from the furnishing of a sample by Customs to the copyright owner. Customs may demand the return of the sample at any time. The owner must return the sample to Customs upon demand or at the conclusion of the examination, testing, or other use in pursuit of a related private civil remedy for copyright infringement. In the event that the sample is damaged, destroyed, or lost while in the possession of the copyright owner, the owner shall, in lieu of return of the sample, certify to Customs that: “The sample described as [insert description] provided pursuant to 19 CFR 133.42(e) was (damaged/destroyed/lost) during examination, testing, or other use.”

Section 133.43 of the Customs Regulations (19 CFR 133.43) states in pertinent part:

(b) Notice to copyright owner. If the importer of suspected infringing copies or phonorecords files a denial as provided in paragraph (a) of this section, the port director shall furnish to the copyright owner the following information, if available, within 30 days, excluding weekends and holidays, of the receipt of the importer's denial:

(1) The date of importation;
(2) The port of entry;
(3) A description of the merchandise;
(4) The quantity involved;
(5) The country of origin of the merchandise; and (6) Notice that the imported article will be released to the importer unless, within 30 days from the date of the notice, the copyright owner files with the port director:

(i) A written demand for the exclusion from entry of the detained imported article; and

(ii)A bond, in the form and amount specified by the port director, conditioned to hold the importer or owner of the imported article harmless from any loss or damage resulting from Customs detention in the event the Commissioner or his designee determines that the article is not an infringing copy prohibited importation under section 602 of the Copyright Act of 1976 (17 U.S.C. 602) (See part 113 of this chapter).

(c) Samples available to the copyright owner. At any time following presentation of the merchandise for Customs examination, but prior to seizure, Customs may provide a sample of the suspect merchandise to the owner of the copyright for examination or testing to assist in determining whether the article imported is a piratical copy. To obtain a sample under this section, the copyright owner must furnish Customs a bond in the form and amount specified by the port director, conditioned to hold the United States, its officers and employees, and the importer or owner of the imported article harmless from any loss or damage resulting from the furnishing of a sample by Customs to the copyright owner. Customs may demand the return of the sample at any time. The owner must return the sample to Customs upon demand or at the conclusion of the examination or testing. In the event that the sample is damaged, destroyed, or lost while in the possession of the copyright owner, the owner shall, in lieu of return of the sample, certify to Customs that: “The sample described as [insert description] provided pursuant to 19 CFR 133.43(c) was (damaged/destroyed/lost) during examination or testing for copyright infringement.

We note that disclosure of information pursuant to §§ 19 CFR 133.21 and 133.25 requirements is encompassed within the regulations of 19 CFR 133.42 and 19 CFR 133.43, as set forth above.

As per the above-cited regulations, Customs is obligated to disclose certain information to a copyright owner, whom has recorded its copyright with Customs. The fact that the copyright owners have appointed the MPAA as their agent to be contacted in cases of piracy is not prohibited. There is no language in the Customs Regulations that precludes Customs from honoring the affidavits submitted by the six copyright owners which designates the MPAA as the point of contact for information disclosed pursuant to the above regulations. Additionally, this exact agreement was previously approved for the Recording Industry Association of America (RIAA) and its members with the Customs Service in HQ 468212, dated October 12, 1999.

As a practical matter, the “contact information” section of the recordation screen in the IPR Module is extremely limited. Therefore, the copyright owners information will remain in place, and the MPAA contact information will be added to the “additional information section”, as each affected copyright is either recorded or renewed in the ordinary course of business.

HOLDING:

There is no language in 19 CFR §§ 133.21, 133.25, 133.42, or 133.43 which precludes Customs from disclosing certain information to a copyright owner’s designated agent, the MPAA, and honoring the affidavits executed by the above mentioned copyright owners.

Sincerely,

Joanne Roman Stump, Chief

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