Deschutes River Conservancy Reauthorization Act of 2005

Mr. President, I rise today to introduce with my colleagues, Senators Feinstein, Grassley, Kyl, and Cornyn, a comprehensive bipartisan bill to increase gang prosecution and prevention efforts. The bill I introduce today is identical to S. 1735 that was favorably reported by the Senate Judiciary Committee in the 108th Congress.

This legislation, ``The Gang Prevention and Effective Deterrence Act of 2005,'' authorizes approximately $650 million over the next five years to support law enforcement and efforts to prevent youngsters from joining gangs. Of that, $450 million would be used to support Federal, State and local law enforcement efforts against violent gangs, and $200 million would be used for intervention and prevention programs for at- risk youth. The bill increases funding for the Federal prosecutors and Federal Bureau of Investigation (FBI) agents needed to conduct coordinated enforcement efforts against violent gangs.

This bill also creates new criminal gang prosecution offenses, enhances existing gang and violent crime penalties to deter and punish illegal street gangs, enacts violent crime reforms needed to prosecute effectively gang members, and implements a limited reform of the juvenile justice system to facilitate Federal prosecution of 16- and 17-year-old gang members who commit serious violent felonies.

The problem of gang violence in America is not a new one, nor is it a problem that is limited to major urban areas. Once thought to be only a problem in our Nation's largest cities, gangs have invaded smaller communities. Gangs in Salt Lake County result in significant measure from the influence of gangs existing in Los Angeles and Chicago, but with local mutations.

Constituents frequently mention to me their extreme concern about gang violence in Utah. According to the Salt Lake Area Gang Project, a multi-jurisdictional task force created in 1989 to fight gang crime in the Salt Lake area, there are at least 250 identified gangs in Utah with over 3,500 members. In Utah, there are street gangs that are ethnically oriented, such as Hispanic gangs, as well as those affiliated with gangs from other cities, such as the Crips and Bloods, Folks and People, motorcycle gangs, Straight Edge gangs, Animal Liberation Front, Skinheads, Varrio Loco Town, Oquirrh Shadow Boys, Salt Lake Posse, and the list goes on. Some of these gangs are racist; some are extremist.

And what I find particularly troubling is that over one-third of the total gang membership is made up of juveniles. Thus, these crimes have a particular impact on youths.

Gangs now resemble organized crime syndicates which readily engage in gun violence, illegal gun trafficking, illegal drug trafficking and other serious crimes. All too often we read in the headlines about gruesome and tragic stories of rival gang members gunned down, innocent bystanders--adults, teenagers and children--caught in the cross fire of gangland shootings, and family members crying out in grief as they lose loved ones to the gang wars plaguing our communities.

Recent studies confirm that gang violence is an increasing problem in all of our communities. Based on the latest available National Youth Gang Survey, it is now estimated that there are more than 25,000 gangs, and over 750,000 gang members who are active in more than 3,000 jurisdictions across the United States. The most current reports indicate that in 2002 alone, after five years of decline, gang membership has spiked nationwide.

I have been--and remain--committed to supporting Federal, State and local task forces as a model for effective gang enforcement strategies. Working together, these task forces have demonstrated that they can make a difference in the community. In Salt Lake City, the Metro Gang Multi-Jurisdiction Task Force stands out as a critical player in fighting gang violence in Salt Lake City. We need to reassure outstanding organizations like this that there will be adequate resources available to expand and fund these critical task force operations to fight gang violence.

In my study of this problem, it has become clear that the government needs to work with communities to meet this problem head-on and defeat it. If we really want to reduce gang violence, we must ensure that law enforcement has adequate resources and legal tools, and that our communities have the ability to implement proven intervention and prevention strategies, so that gang members who are removed from the community are not simply replaced by the next generation of new gang members.

In closing, I want to commend my colleagues--Senators Feinstein, Grassley, Kyl and Cornyn. They have worked very closely with me as we considered these issues last Congress and I look forward to working with them and others as we proceed this year. I urge my colleagues to join with us in promptly passing this important legislation.

Mr. President, I rise today to introduce the Family Entertainment and Copyright Act of 2005. This important legislation consists of a package of smaller intellectual property bills that the House and Senate have been working to enact since last Congress. This legislation passed the Senate not once, but twice, during the waning days of the last Congress. Unfortunately, though, it was doomed by a non-germane amendment unrelated to intellectual property law. My hope is that we can work together this Congress to avoid this type of pitfall, and I commit to work with other members to do so.

Before beginning my substantive discussion of the bill, I would like to thank my colleagues Senators Leahy, Cornyn, and Feinstein for their ongoing efforts on this legislation. Just as it was last year, this legislation is a group effort, and I want to take care to recognize the contributions and their excellent work along with that of Representatives Sensenbrenner, Smith, Berman, and Conyers in the House.

Before going into a title-by-title discussion of the bill, I would like to express my particular support for the Family Movie Act, which has been included in this legislation. Chairman Lamar Smith and I worked on this bill last Congress. It's important legislation both to parents who want the ability to use new technologies to help shield their families from inappropriate content as well as the technology companies, such as ClearPlay in my home State of Utah, that are working to develop these technologies. The Family Movie Act will give parents more say over what their children see, without limiting the creative control of directors and movie studios.

Title I of this Act, the Artists' Rights and Theft Prevention Act of 2005, (the ART Act), contains a slightly modified version of S. 1932, authored by Senators Cornyn and Feinstein in the 108th Congress. This bill will close two significant gaps in our copyright laws that are feeding some of the piracy now rampant on the Internet.

First, it criminalizes attempts to record movies off of theater screens. These camcorded copies of new movies now appear on filesharing networks almost contemporaneously with the theatrical release of a film. Several States have already taken steps to criminalize this activity, but providing a uniform Federal law--instead of a patchwork of State criminal statutes--will assist law enforcement officials in combating the theft and redistribution of valuable intellectual property embodied in newly-released motion pictures.

Second, the bill will create a pre-registration system that will permit criminal penalties and statutory-damage awards. This will also provide a tool for law enforcement officials combating the growing problem of music and movies being distributed on filesharing networks and circulating on the Internet before they are even released. Obviously, the increasingly frequent situation of copyrighted works

being distributed illegally via the Internet before they are even made available for sale to the public severely undercuts the ability of copyright holders to receive fair and adequate compensation for their works.

Title II of this Act, the Family Movie Act of 2005 (the FMA), resolves some ongoing disputes about the legality of so-called ``jump- and-skip'' technologies that companies like Clearplay in my home State of Utah have developed to permit family-friendly viewing of films that may contain objectionable content. The FMA creates a narrowly defined safe-harbor clarifying that distributors of such technologies will not face liability for copyright or trademark infringement, provided that they comply with the requirements of the Act. I have been working with my colleagues in the Senate and several leaders in the House-- including, most importantly Chairmen Smith and Sensenbrenner--for the past couple of years to resolve this issue. The FMA will help to end aggressive litigation threatening the viability of small companies like Clearplay which are busy creating innovative technologies for consumers that allow them to tailor their home viewing experience to their own individual or family preferences.

The Family Movie Act creates a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances of an authorized copy of the motion picture taking place in the course of a private viewing in a household. The version passed last year by the House explicitly excluded from the scope of the new copyright exemption so-called ``ad-skipping'' technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. This provision was included on the House floor to address the concerns of some Members who were concerned that a court might misread the new section 110(11) exemption to apply to ``ad- skipping''' cases, such as in the recent litigation involving ReplayTV.

In the Senate, however, some expressed concern that the inclusion of such explicit language could create unwanted inferences with respect to the merits of the legal positions at the heart of recent ``ad- skipping'' litigation. Those issues remain unsettled in the courts, and it was never the intent of this legislation to resolve or affect those issues in any way. Indeed, the Copyright Act contains literally scores of similar exemptions, and none of those exemptions have been or should be construed to imply anything about the legality of conduct falling outside their scope. As a result, the Copyright Office has now confirmed that such an explicit exclusion is unnecessary to achieve the desired outcome, which is to avoid application of this new exemption in potential future cases involving ad-skipping devices. In order to avoid unnecessary controversy, the Senate bill omits the exclusionary language with the understanding that doing so does not in any way change the scope of the bill.

That this change in no way affects the scope of the exemption is clear when considering that the new section 110(11) exemption protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture. . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply. The limited scope of this exemption does not, however, imply or show that such conduct or a technology that enables such conduct would be infringing. This legislation does not in any way deal with that issue. It means simply that such conduct and products enabling such conduct are not immunized from liability by this exemption.

This bill also differs from the version passed by the House last year in that it adds two ``savings clauses.'' The copyright savings clause makes clear that there should be no spillover effect from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The trademark savings clause clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement.

Title III of this Act, the National Film Preservation Act of 2004, will reauthorize the National Film Preservation Board and the National Film Preservation Foundation. These entities have worked successfully to recognize and preserve historically or culturally significant films--often by providing the grants and expertise that enable local historical societies to protect and preserve historically significant films for the local communities for which they are most important. This fine work will ensure that the history of the 20th century will be preserved and available to future generations.

As a conservative Senator from a socially conservative state, I occasionally take a few swings at the movie industry for the quality and content of the motion pictures they are currently creating, but I will note for the record that I commend efforts to ensure that important artistic, cultural, and historically significant films are preserved for future generations. I commend my friend from Vermont for his perseverance in reauthorizing Federal funds to continue this important effort.

Title IV of this act, the ``Preservation of Orphan Works Act,'' also ensures the preservation of valuable historic records by correcting a technical error that unnecessarily narrows a limitation on the copyright law applicable to librarians and archivists. This will strengthen the ability of librarians and archivists to better meet the needs of both researchers and ordinary individuals and will result in greater accessibility of important works. I applaud my colleague in the House--Representative Howard Berman of California--for his efforts on this bill and am pleased to see it included in this Senate package.

Just to conclude, I will again thank Ranking Democratic Member Leahy, Senator Cornyn, Chairmen Sensenbrenner and Smith, as well as Mr. Conyers and Mr. Berman for their bicameral, bipartisan approach to these bills and to intellectual property issues generally.

I ask unanimous consent that the text of the bill be printed in the Record.

I would be happy to yield for a question from the distinguished Senator from Texas.

I thank my friend, the Senator from Texas, for that reminder. I would certainly have no objection to entering our previous colloquy into the Record again and ask unanimous consent that it appear after our remarks.

Mr. President, Section 102 of the ART Act establishes a new provision of Title 18 entitled, ``Unauthorized Recording of Motion Pictures in a Motion Picture Exhibition Facility.'' I ask Senator Cornyn, what is the purpose of this provision?

I have heard it said that this bill could be used against a salesperson or a customer at stores such as Best Buy or Circuit City if he or she were to point a video camera at a television screen showing a movie. Is this cause for concern?

Does the Senator from California agree with your colleague from Texas?

I have also heard some say that this statute could be used to prosecute someone for camcording a DVD at his home. Is this a fair concern?

Do the users of hearing aids, cell phones or similar devices have anything to fear from this statute?

It appears that there is no fair use exception to this provision. Is that correct?

Does the Senator from Texas agree?

My cosponsor, Senator Cornyn, raises an important point. While we removed the ``ad-skipping'' language from the statute to avoid this unnecessary controversy, you are absolutely correct that this does not in any way change the scope of the bill. The bill protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply.

The limited scope of this exemption does not, however, imply or show that

such a product would be infringing. This legislation does not in any way deal with that issue. It means simply that such a product is not immunized from liability by this exemption.

Certainly.

Yes it is. Let me ask that a copy of the section-by- section analysis of the Family Movie Act as amended by the Senate be included in the Record. This section-by-section analysis contains a more complete analysis of the bill as proposed today in the Senate, including the limited changes made by the bill Senators Leahy, Cornyn, Biden, and I offer today.

The analysis follows.

Section-by-Section Analysis of the Family Movie Act of 2004, Amended

and Passed by the Senate

overview

Title II of the Family Entertainment and Copyright Act of

2004 incorporates the House-passed provision of the Family

Movie Act of 2004, with limited changes as reflected in this

section-by-section analysis. As discussed herein, these

changes are not intended to and do not affect the scope,

effect or application of the bill.

The purpose of the Family Movie Act is to empower private

individuals to use technology to skip and mute material that

they find objectionable in movies, without impacting

established doctrines of copyright or trademark law or those

whose business models depend upon advertising. This amendment

to the law should be narrowly construed to effect its

intended purpose only. The sponsors of the legislation have

been careful to tailor narrowly the legislation to clearly

allow specific, consumer-directed activity and not to open or

decide collateral issues or to affect any other potential

or actual disputes in the law.

The bill as proposed in the Senate makes clear that, under

certain conditions, ``making imperceptible'' of limited

portions of audio or video content of a motion picture--that

is, skipping and muting limited portions of movies without

adding any content--as well as the creation or provision of a

computer program or other technology that enables such making

imperceptible, does not violate existing copyright or

trademark laws. That is true whether the movie is on

prerecorded media, like a DVD, or is transmitted to the home,

as through pay-per-view and ``video-on-demand'' services.

Subsection (a): Short Title

Subsection (a) sets forth the short title of the bill as

the Family Movie Act of 2004.

Subsection (b): Exemption from Copyright and Trademark

Infringement for Skipping of Audio or Video Content of

Motion Pictures

Subsection (b) is the Family Movie Act core provision and

creates a new exemption at section 110(11) of the Copyright

Act for the ``making imperceptible'' of limited portions of

audio or video content of a motion picture during a

performance in a private household. This new exemption sets

forth a number of conditions to ensure that it achieves its

intended effect while remaining carefully circumscribed and

avoiding any unintended consequences. The conditions that

allow an exemption, which are discussed in more detail below,

consist of the following:

The making imperceptible must be ``by or at the direction

of a member of a private household.'' This legislation

contemplates that any altered performances of the motion

picture would be made either directly by the viewer or at the

direction of a viewer where the viewer is exercising

substantial choice over the types of content they choose to

skip or mute.

The making imperceptible must occur ``during a performance

in or transmitted to the household for private home

viewing.'' Thus, this provision does not exempt an

unauthorized ``public performance'' of an altered version.

The making imperceptible must be ``from an authorized copy

of a motion picture.'' Thus, skipping and muting from an

unauthorized or ``bootleg'' copy of a motion picture would

not be exempt.

No ``fixed copy'' of the altered version of the motion

picture may be created by the computer program or other

technology that makes imperceptible portions of the audio or

video content of the motion picture. This provision makes

clear that services or technologies that make a fixed copy of

the altered version are not afforded the benefit of this

exemption.

The ``making imperceptible'' of limited portions of a

motion picture does not include the addition of audio or

video content over or in place of other content, such as

placing a modified image of a person, a product, or an

advertisement in place of another, or adding content of any

kind.

These limitations, and other operative provisions of this

new section 110(11) exemption, merit further elaboration as

to their purposes and effects.

The bill makes clear that the ``making imperceptible'' of

limited portions of audio or video content of a motion

picture must be done by or at the direction of a member of a

private household. While this limitation does not require

that the individual member of the private household exercise

ultimate decision-making over each and every scene or element

of dialog in the motion picture that is to be made

imperceptible, it does require that the making imperceptible

be made at the direction of that individual in response to

the individualized preferences expressed by that individual.

The test of ``at the direction of an individual'' would be

satisfied when an individual selects preferences from among

options that are offered by the technology.

An example is the C1earPlay model. C1earPlay provides so-

called `` filter files'' that allow a viewer to express his

or her preferences in a number of different categories,

including language, violence, drug content, sexual content,

and several others. The version of the movie that the viewer

sees depends upon the preferences expressed by that viewer.

Such a model would fall under the liability limitation of the

Family Movie Act.

This limitation, however, would not allow a program

distributor, such as a provider of video-on-demand services,

a cable or satellite channel, or a broadcaster, to make

imperceptible limited portions of a movie in order to provide

an altered version of that movie to all of its customers,

which could violate a number of the copyright owner's

exclusive rights, or to make a determination of scenes to be

skipped or dialog to be muted and to offer to its viewers no

more of a choice than to view an original or an altered

version of that film. Some element of individualized

preferences and control must be present such that the viewer

exercises substantial choice over the types of content they

choose to skip or mute.

It is also important to emphasize that the new section

110(11) exemption is targeted narrowly and specifically at

the act of ``making imperceptible'' limited portions of audio

or video content of a motion picture during a performance

that occurs in, or that is transmitted to, a private

household for private home viewing. This section would not

exempt from liability an otherwise infringing performance, or

a transmission of a performance, during which limited

portions of audio or video content of the motion picture are

made imperceptible. In other words, where a performance in a

household or a transmission of a performance to a household

is done lawfully, the making imperceptible limited portions

of audio or video content of the motion picture during that

performance, consistent with the requirements of this new

section, will not result in infringement liability.

Similarly, an infringing performance in a household, or an

infringing transmission of a performance to a household, are

not rendered non-infringing by section 110(11) by virtue of

the fact that limited portions of audio or video content of

the motion picture being performed are made imperceptible

during such performance or transmission in a manner

consistent with that section.

The bill also provides additional guidance, if not an exact

definition, of what the term ``making imperceptible'' means.

The bill provides specifically that the term ``making

imperceptible'' does not include the addition of audio or

video content that is performed or displayed over or in place

of existing content in a motion picture. This is intended to

make clear in the text of the statute what has been expressed

throughout the consideration of this legislation, which is

that the Family Movie Act does not enable the addition of

content of any kind, including the making imperceptible of

audio or video content by replacing it or by superimposing

other content over it. In other words, for purposes of

section 110(11), ``making imperceptible'' refers solely to

skipping scenes and portions of scenes or muting audio

content from the original, commercially available version of

the motion picture. No other modifications of the content are

addressed or immunized by this legislation.

The House sponsor of this legislation noted in his

explanation of his bill, and the Senate is also aware, that

some copy protection technologies rely on matter placed into

the audio or video signal. The phrase ``limited portions of

audio or video content of a motion picture'' means what it

would naturally seem to mean (i.e., the actual content of

the motion picture) and does not refer to any component of

a copy protection scheme or technology. This provision

does not allow the skipping of technologies or other copy-

protection-related matter for the purpose of defeating

copy protection. Rather, it is expected that skipping and

muting of content

in the actual motion picture will be skipped or muted at

the direction of the viewer based on that viewer's desire

to avoid seeing or hearing the action or sound in the

motion picture. Skipping or muting done for the purpose of

or having the effect of avoiding copy protection

technologies would be an abuse of the safe harbor outlined

in this legislation and may violate section 1201 of title

17.

Violating the Digital Millennium Copyright Act, and

particularly its anti-circumvention provisions, is not

necessary to enable technology of the kind contemplated under

the Family Movie Act. Although the amendment to section 110

provides that it is not an infringement of copyright to

engage in the conduct that is the subject of the Family Movie

Act, the Act does not provide any exemption from the anti-

circumvention provisions of section 1201 of title 17, or from

any other provision of chapter 12 of title 17. It would not

be a defense to a claim of violation of section 1201 that the

circumvention is for the purpose of engaging in the conduct

covered by this new exemption in section 110(11), just as it

is not a defense under section 1201 that the circumvention is

for the purpose of engaging in any other non-infringing

conduct.

There are a number of companies currently providing the

type of products and services covered by this Act. The Family

Movie Act is intended to facilitate the offering of such

products and services, and it certainly creates no impediment

to the technology employed by those companies. Indeed, it is

important to underscore the fact that the support for such

technology and consumer offerings that is reflected in this

legislation is driven in some measure by the desire for

copyright law to be respected and to ensure that technology

is deployed in a way that supports the continued creation and

protection of entertainment and information products that

rely on copyright protection. This legislation reflects the

firm expectation that those rights and the interests of

viewers in their homes can work together in the context

defined in this bill. Any suggestion that support for the

exercise of viewer choice in modifying their viewing

experience of copyrighted works requires violation of either

the copyright in the work or of the copy protection schemes

that provide protection for such work should be rejected as

counter to legislative intent or technological necessity.

The House-passed bill included an explicit exclusion to the

new section 110(11) exemption in cases involving the making

imperceptible of commercial advertisements or network or

station promotional announcements. This provision was added

on the House floor to respond to concerns expressed by

Members during the House Judiciary Committee markup that the

bill might be read somehow to exempt from copyright

infringement liability devices that allow for skipping of

advertisements in the playback of recorded television (so

called ``ad-skipping'' devices). Such a reading is not

consistent with the language of the bill or its intent.

The phrase ``limited portions of audio or video content of

a motion picture'' applies only to the skipping and muting of

scenes or dialog that are part of the motion picture itself,

and not to the skipping of commercial advertisements, which

are themselves considered motions pictures under the

Copyright Act. It also should be noted that the phrase

``limited portions'' is intended to refer to portions that

are both quantitatively and qualitatively insubstantial in

relation to the work as a whole. Where any substantial part

of a complete work (including a commercial advertisement) is

made imperceptible, the section 110(11) exemption would not

apply.

The House-passed bill adopted a ``belt and suspenders''

approach to this question by adding exclusionary language in

the statute itself. Ultimately that provision raised concerns

in the Senate that such exclusionary language would result in

an inference that the bill somehow expresses an opinion, or

even decides, the unresolved legal questions underlying

recent litigation related to these so-called ``ad-skipping''

devices. In the meantime, the Copyright Office also made

clear that such exclusionary language is not necessary. In

other words, the exclusionary language created unnecessary

controversy without adding any needed clarity to the statute.

Thus, the Senate amendment omits the exclusionary language

while leaving the scope and application of the bill exactly

as it was when it passed the House. The legislation does not

provide a defense in cases involving so-called ``ad-

skipping'' devices, and it also does not affect the legal

issues underlying such litigation, one way or another.

Consistent with the intent of the legislation to fix a narrow

and specific copyright issue, this bill seeks very clearly to

avoid unnecessarily interfering with current business models,

especially with respect to advertising, promotional

announcements, and the like. Simply put, the bill as amended

in the Senate is narrowly targeted to the use of technologies

and services that filter out content in movies that a viewer

finds objectionable, and it in no way relates to or affects

the legality of so-called ``ad-skipping'' technologies.

There are a variety of services currently in litigation

that distribute actual copies of altered movies. This type of

activity is not covered by the section 110(11) exemption

created by the Family Movie Act. There is a basic distinction

between a viewer choosing to alter what is visible or audible

when viewing a film, the focus of this legislation, and a

separate entity choosing to create and distribute a single,

altered version to members of the public. The section 110(11)

exemption only applies to viewer directed changes to the

viewing experience, and not the making or distribution of

actual altered copies of the motion picture.

Related to this point, during consideration of this

legislation in the House there were conflicting expert

opinions on whether fixation is required to infringe the

derivative work right under the Copyright Act, as well as

whether evidence of Congressional intent in enacting the 1976

Copyright Act supports the notion that fixation should not be

a prerequisite for the preparation of an infringing

derivative work. This legislation should not be construed to

be predicated on or to take a position on whether fixation is

necessary to violate the derivative work right, or whether

the conduct that is immunized by this legislation would be

infringing in the absence of this legislation. Subsection (b)

also provides a savings clause to make clear that the newly-

created copyright exemption is not to be construed to have

any effect on rights, defenses, or limitations on rights

granted under title 17, other than those explicitly provided

for in the new section 110(11) exemption.

Subsection (c): Exemption from Trademark Infringement

Subsection (c) provides for a limited exemption from

trademark infringement for those engaged in the conduct

described in the new section 110(11) of the Copyright Act. In

short, this subsection makes clear that a person engaging in

the conduct described in section 110(11)--the ``making

imperceptible'' of portions of audio or video content of a

motion picture or the creation or provision of technology to

enable such making available--is not subject to trademark

infringement liability based on that conduct, provided that

person's conduct complies with the requirements of section

110(11). This section provides a similar exemption for a

manufacturer, licensee or licensor of technology that enables

such making imperceptible, but such manufacturer, licensee or

licensor is subject to the additional requirement that it

ensure that the technology provides a clear and conspicuous

notice at the beginning of each performance that the

performance of the motion picture is altered from the

performance intended by the director or the copyright holder.

Of course, nothing in this section would immunize someone

whose conduct, apart from the narrow conduct described by

110(11), rises to the level of a Lanham Act violation. For

example, someone who provides technology to enable the making

imperceptible limited portions of a motion picture consistent

with section 110(11) could not be held liable on account of

such conduct under the Trademark Act, but if in providing

such . . .

Mr. President, I am pleased to introduce this bill today along with Senator Boxer as cosponsor to direct the Interior Secretary to conduct a study to evaluate the suitability and feasibility of expanding the Santa Monica National Recreation Area to include the Rim of the Valley Corridor.

The Rim of the Valley Corridor encircles the San Fernando Valley, La Crescenta, Simi, Conejo, and Santa Clarita Valleys, consisting of parts of the Santa Monica Mountains, Santa Susanna Mountains, San Gabriel Mountains, Verdugo Mountains, San Rafael Hills and connects to the adjacent Los Padres and San Bernardino National Forests.

This parcel of land is unique because of its rare Mediterranean ecosystem and wildlife corridor that stretches north from the Santa Monicas. With the population growth forecasted to multiply exponentially over the next several decades, the need for parks to balance out the expected population growth has become critical in California.

Since the creation of the Santa Monica Recreation Area in 1978, Federal, State, and local authorities have worked successfully together to create and maintain the highly successful Santa Monica Mountains National Recreation Area, the world's largest urban park, hemmed in on all sides by development.

Park and recreational lands provide people with a vital refuge from urban life while preserving valuable habitat and wildlife. With the passage of this legislation, Congress will hold true to its original commitment to preserve the scenic, natural, and historic setting of the Santa Monica Mountains Recreation Area.

With the inclusion of the Rim of the Valley Corridor in the Santa Monica Mountains Recreation Area, greater ecological health and diversity will be promoted, particularly for larger animals like mountain lions, bobcats, and the golden eagle. By creating a single contiguous Rim of the Valley Trail, people will enjoy greater access to existing trails in the Recreational Area.

After the study called for in this bill is complete, the Secretary of the Interior and Congress will be in a key position to determine whether all or portions of the Rim of the Valley Corridor warrant national park status.

This bill enjoys strong support from local and State officials and I hope that it will have as much strong bipartisan support this Congress, as it did last Congress. Congressman Adam Schiff plans to introduce companion legislation for this bill in the House and I applaud his commitment to this issue.

I urge my colleagues to support this legislation and I ask unanimous consent that the text of this proposed legislation be printed in the Record.

Mr. President, I rise today to join my good friend and colleague Senator Orrin Hatch, to introduce the ``Gang Prevention and Effective Deterrence Act of 2005.''

Gangs are spreading across our country, increasing in violence and power in every State. The growth and spread of these gangs illustrate the simple fact that they are no longer a local problem. They are a national problem, and require a national solution. This bill is designed to contribute to that solution by bringing together Federal, State and local law enforcement, equipping them with the right legal tools, and providing authorization for funds to make this partnership effective.

First, let me illustrate the scope of the problem we face: In 2002, there were approximately 731,500 gang members and 21,500 gangs in the United States. Additionally, the FBI report on national crime statistics found that youth-gang homicides had jumped to more than 1,100 in 2002, up from 692 in 1999. According to a report commissioned by a coalition of big city police chiefs, gang-related killings skyrocketed by 50 percent from 1999 to 2002. In 2002, there were a little more than 16,000 homicides in the United States--more than a thousand of those murders were gang-related. In Southern California alone there have been about 3,100 gang-related killings since 1999. 87 percent of U.S. cities with a population of more than 100,000 have reported gang problems, according to the Department of justice.

The bottom line is that this is a major problem.

This legislation before us today squarely addresses these serious issues. Its main point is to create a new type of crime, by defining and criminalizing ``Criminal Street Gangs.'' This recognizes the basic point of a street gang--it is more powerful, and more dangerous, than its individual members. Defeating gangs means recognizing what is so dangerous about them, and then making that conduct against the law.

This bill does exactly that. It makes illegal participation in a criminal street gang a federal crime. A ``criminal street gang'' is defined to mean a formal or informal group, club, organization or association of 3 or more persons who act together to commit gang crimes. This legislation makes it a crime for a member of a criminal street gang to commit, conspire or attempt to commit two or more predicate gang crimes; or to get another individual to commit a gang crime. The term ``gang crime'' is defined to include violent and other serious State and Federal felony crimes such as: murder, maiming, manslaughter, kidnapping, arson, robbery, assault with a dangerous weapon, obstruction of justice, carjacking, distribution of a controlled substance, certain firearms offenses and money laundering. And it criminalizes violent crimes in furtherance or in aid of criminal street gangs.

These two provisions are at the heart of this legislation. Armed with this new law, Federal prosecutors, working in tandem with State and local law enforcement, will be able to take on gangs in much the same way that traditional Mafia families have been systematically destroyed by effective RICO prosecutions. The legislation also recognizes that the core changes, standing alone, are not sufficient.

The Gang Prevention and Effective Deterrence Act is a comprehensive bill to increase gang prosecution and prevention efforts. The bill authorizes approximately $650 million over the next five years to support Federal, State and local law enforcement efforts against violent gangs including the funding of witness protection programs and for intervention and prevention programs for at-risk youth. In support of this effort, the bill increases funding for Federal prosecutors and FBI agents to increase coordinated enforcement efforts against violent gangs.

Witness protection is particularly important--as an example, recent press reports from Boston show that gang members are distributing what is, in essence, a witness intimidation media kit, complete with graphics and CDs that warn potential witnesses that they will be killed--one CD depicts three bodies on its covers. In another incident, a witnesses' grand jury testimony was taped to his home--soon afterward he was killed.

The Act also creates new criminal gang prosecution offenses, enhances existing gang and violent crime penalties to deter and punish illegal street gangs, proposes violent crime reforms needed to effectively prosecute gang members, and proposes a limited reform of the juvenile justice system to facilitate Federal prosecution of 16 and 17 year old gang members who commit serious acts of violence--specifically it:

Makes recruiting minors to join criminal street gangs a Federal crime and requires offenders to pay the costs associated with housing and treating any recruited minor who is prosecuted for their gang activity.

Makes murder and other violent crimes committed in connection with drug trafficking Federal crimes.

Creates a new offense of multiple interstate murders, where an individual crosses State lines and intends to cause the death of two or more people.

Allows for prosecution of gang members who cross State lines to obstruct justice, intimidate or retaliate against witnesses, jurors, informants, or victims.

Creates tougher laws for certain Federal crimes like assault, carjacking, manslaughter, conspiracy, and for specific types of crimes occurring in Indian country.

Requires that someone convicted of hiring another person to commit murder be punished with imprisonment, instead of a fine.

Makes sexual assault a predicate act under RICO and increases the maximum sentences for these RICO crimes.

Allows for detention of persons charged with firearms who have been previously convicted of prior crimes of violence or serious drug offenses. Current law does not allow a prosecutor to

ask that a person be held without bail even if the person has previously been convicted of a crime of violence or a serious drug offense. This bill would allow prosecutors to make that request of a judge but would allow a criminal defendant the right to argue why he or she should not be held.

Makes it clear that in a death penalty case, the case can be tried where the murder, or related conduct, occurred.

Extends the time within which a violent crime case can be charged and tried. For violent crime cases, the time is extended from 5 years to 10 years after the offense occurred or the continuing offense was completed, and from 5 years to 8 years after the date on which the violation was first discovered.

Permits wiretaps to be used for new gang crimes created by this bill.

Allows for a murdered witness's statements to be admitted at trial in cases where the defendant caused the witness's death.

Makes clear where a case can be tried involving retaliation against a witness--in either the district where the case is being tried, or where the intimidation took place.

Increases penalties for criminal use of firearms in crimes of violence and drug trafficking.

Includes modified juvenile provisions. This bill will allow prosecutors to more easily charge 16 and 17 year olds who are charged with serious violent felonies. A judge will review every decision a prosecutor makes to charge a juvenile as an adult.

Creates and provides assistance for ``High Intensity'' Interstate Gang Activity areas. This legislation requires the Attorney General to designate certain locations as ``high intensity interstate gang activity areas'' and provides assistance in the form of criminal street gang enforcement teams made up of local, State and Federal law enforcement authorities to investigate and prosecute criminal street gangs in each high intensity interstate gang activity area.

Authorizes funding of $500 million for 2004 through 2008 to meet the goals of suppression and intervention: $50 million a year will be used to support the criminal gang enforcement teams. $50 million a year will be used to make grants available for community-based programs to provide for crime prevention and intervention services for gang members and at-risk youth in areas designated as high intensity interstate gang activity areas.

Authorizes $150 million over five years to support anti-gang efforts including: Expanding the Project Safe Neighborhood program to require U.S. Attorneys to identify and prosecute significant gangs within their district; coordinating such prosecutions among all local, State, and Federal law enforcement; and coordinating criminal street gang enforcement teams in designated high intensity interstate gang activity areas. Supporting the Federal Bureau of Investigation's Safe Streets Program. Creating and expanding witness protection programs, the hiring of additional State and local prosecutors, funding gang prevention and community prosecution programs and purchasing equipment to increase the accurate identification and prosecution of violent offenders.

The bottom line is that this legislation would provide the tools and the resources to begin that national task of destroying criminal street gangs. It is designed to emphasize and encourage Federal, State and local cooperation. It combines enforcement with prevention. It is a tough, effective and fair approach.

This is not a new bill. I have been working on it for almost ten years. In 1996, I joined Senator Hatch and others to develop the Federal Gang Violence Act, which would have increased criminal penalties for gang members, made recruiting persons into a criminal street gang a crime, and enhanced penalties for transferring a gun to a minor. Many of the provisions of that bill were incorporated into the 1999 Juvenile Justice bill, which was approved overwhelmingly (73-25) by the Senate in the 106th Congress. However, the Juvenile Justice bill stalled in conference, and these provisions were never signed into law.

In the years that followed we kept up our efforts, with Republicans and Democrats working together on this critical issue. In the 108th Congress a version of this bill was introduced, and eventually was co- sponsored by Senators Hatch and others. That bill was the subject of much discussion and debate. Some of my colleagues raised some valuable suggestions and criticisms, many of which were incorporated in the bill last year. The result of that compromise was reported favorably by the Judiciary Committee last Fall, but was never considered by the full Senate.

The legislation today is the same as that which was approved by the Judiciary Committee, and I hope this year we will move quickly to pass it into law. That said, I understand that some of my colleagues are still concerned about certain aspects of the bill. My intention is to continue to negotiate in the weeks ahead. I am open to change, and welcome further discussion and analysis.

We all agree that gangs are a terrible and growing problem. We all agree that something needs to be done. I believe that this legislation is desperately needed, and I look forward to working with my colleagues on both sides of the aisle to take this bill and make it law.

I ask unanimous consent that the text of the bill be printed in the Record.

Absolutely on all points.

No, it is not. The definition of a motion picture exhibition facility includes the concept that the exhibition has to be ``open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.'' This definition makes clear that someone recording from a television in his home does not meet that definition. It is important to emphasize that the clause ``open to the public'' applies specifically to the exhibition, not to the facility. An exhibition in a place open to the public that is itself not made to the public is not the subject of this bill.

Thus, for example, a university film lab may be ``open to the public.'' However, a student who is watching a film in that lab for his or her own study or research would not be engaging in an exhibition that is ``open to the public.'' Thus, if that student copied an excerpt from such an exhibition, he or she would not be subject to liability under the bill.

Of course not. The statute covers only a person who ``knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under Title 17, or any part thereof. . . .'' In other words, the defendant would have to be making, or attempting to make, a copy that is itself an audiovisual work, or make, or attempt to make, a transmission embodying an audiovisual work, as that term is defined in Section 101 of Title 17. As such, the Act would not reach the conduct of a person who uses a hearing aid, a still camera, or a picture phone to capture an image or mere sound from the movie.

This is a criminal provision under Title 18, not a copyright provision under Title 17. Accordingly, there is no fair use exception included. However, Federal prosecutors should use their discretion not to bring criminal prosecutions against activities within movie theaters that would constitute fair use under the copyright laws. The object of this legislation is to prevent the copying and distribution of motion pictures in a manner that causes serious commercial harm. This legislation is not intended to chill legitimate free speech.

Mr. President, in the fall of 2003, I introduced S. 1932, the Artists' Rights and Theft Prevention Act of 2003, along with my friend from California, Senator Feinstein. As introduced, the ART Act was a modest but necessary first step to combat the rampant piracy plaguing the motion picture, recording and general content industries. The Bill focuses on the most egregious form of copyright piracy plaguing the entertainment industry today--the piracy of film, movies, and other copyrighted materials before copyright owners have had the opportunity to market fully their products.

Now, as part of a comprehensive package, ``the Family Entertainment and Copyright Act of 2005,'' it is even more significant. This package contains a number of targeted, important reforms that help strengthen our intellectual property laws. I rise to express my strong support for the bill and ask my colleagues to move it expeditiously.

Intellectual property laws and the American businesses that rely on them deserve our strongest support. Our Nation was founded on a number of important ideas. One central one was that the value created by the work and sweat of a person should be recognized as that person's property and should be protected. Protecting the creativity and capital that American innovators invest to make our lives richer is the right thing to do. Failure to do so not only would diminish the quality of our individual lives, but our country would suffer too. Intellectual property-related industries are a central driver of our Nation's economy and a staple of our international trade.

The copyright-based industries alone accounted for more than 5 percent of the U.S. GDP or $535,100,000,000 in 2001 and almost 6 percent of U.S. employment, and led all major industry sectors in foreign sales and exports in 2001, the last year for which we have figures.

As the Justice Department recently has pointed out:

Ideas and the people who generate them serve as critical

resources both in our daily lives and in the stability and

growth of America's economy. The creation of intellectual

property--from designs for new products to artistic

creations--unleashes our Nation's potential, brings ideas

from concept to commerce, and drives future economic and

productivity gains. In the increasingly knowledge-driven,

information age economy, intellectual property is the new

coin of the realm. . . . [Report of the DOJ Task Force on

Intellectual Property, p. 7.]

As the DOJ IP Task Force Report notes, America's economy relies more and more on ideas we create, not things we make. We need to protect our Nation's innovative and creative works with strong laws and enforcement of those laws because doing so is vital to our national economic security.

Having noted and quoted the DOJ Report, I want to pause to thank the Justice Department and outgoing Attorney General John Ashcroft for taking these issues seriously and for taking significant steps to address them. The formation of the Intellectual Property Task Force spotlighted these issues at the Justice Department and the work of the Task Force, headed by David Israelite did a superb job in developing comprehensive and serious steps better protecting our intellectual property interests. The DOJ engaged in serious domestic and international investigations and prosecutions against digital thieves who have misused promising digital technology like the Internet to further their attacks on American businesses. General Ashcroft and the Justice Department, who deserve our gratitude for so many reasons, certainly deserve it for their efforts on this area.

Having provided that foundation, let me discuss briefly some of the important provisions contained in this legislative package.

We have purposefully compiled a package of legislation that strikes a balance between innovation and copyright protection. One needn't be sacrificed to encourage the other--rather they go hand-in-hand.

First, I would mention the Cornyn-Feinstein ``Artist's Rights and Theft Prevention Act'' or the ART Act. Notably, it contains a provision making it a felony to record a movie in a theater. One of the principal ways that movie piracy happens is by thieves sitting in a movie theater, or bribing a projectionist to help them, and recording movies with small camcorders. These camcorded copies can then make their way around the world on the internet and usually land on the streets of cities around the world in pirated copies sold on the street, often the day the movie opens in the U.S. or even before the movie opens in many countries.

All it takes is a single or a small handful of camcorded copies distributed worldwide to have a devastating effect on a movie's profitability. Movies are generally an investment of tens or hundreds of millions of dollars that rely on box office and home video and other subsequent sales to recoup this investment. A camcorded copy released early in any of these cycles can undermine the economics of this business, and especially if they hit the streets or the internet while the movie is still in theaters. This is theft, and it is theft that supports organized crime groups, and perhaps, even terrorism. It deserves to be stopped by the specter of a federal felony.

Its second key provision focuses on so-called ``pre-released'' works. Because serious harm can be done to both the reputation of and market for creative products if they are pirated before they actually come to market, we have included reforms in the ART Act and this package that make it easier for the Justice Department to prosecute those who steal and distribute copies of copyrighted works on the internet before they are released to the public by their owners or authorized distributors. We make the prosecutor's job easier by allowing certain presumptions with regard to the harm caused, including the dollar amount and number of copies, necessary to allow the prosecutor to bring a felony action where the works in question are being prepared for commercial release but have not been released to the public legitimately. This is fair because no one can legitimately believe that they are within their rights copying and distributing works that are not yet available in the marketplace. Again this is a common sense concept, which deserves the support of the Congress.

Also, I would mention the Family Movie Act--another important component of this package. This provision allows the use of certain, specified technology to skip or mute content that may be objectionable to certain viewers when watching a movie at home, so long as no fixed copy of the edited work is made.

Very few would argue that many of the movies produced today contain significant amounts of gratuitous sex, violence, foul language or other potentially objectionable content. A number of innovative companies have stepped forward to solve this problem by providing filters that tag such scenes and allows consumers to tailor their viewing experience.

This legislation is designed to solve an on-going controversy surrounding the use of such technology. Specifically, there is litigation pending over the issue of whether providing edited versions of movies to consumers creates a ``derivative work'' that violates the rights of those who created or own the copyrights and trademarks for the original movies. The existence of this controversy arguably is hampering the development of the technology that families may find helpful in protecting children from potentially objectionable content.

Let me make clear that this bill is not designed to deal with ad- skipping by consumers in the home. I know that there has been some misinformation about this by groups who apparently oppose copyright protections generally, but this bill has nothing to do with anything other than using a certain kind of technology to modify the viewing experience of a movie to skip over objectionable content.

Finally, the two remaining provisions--though relatively small--are not insignificant. The Film Preservation Act, legislation that I recognize is particularly important to Senator Leahy, and I thank him for his efforts in promoting it, will reauthorize a Library of Congress Program dedicated to saving rare and significant films. Additionally, we make a small but necessary change to the Sonny Bono Copyright Term Extension Act. Correction of this error will allow libraries to create copies of certain copyrighted works, such as films and musical compositions that are in the last 20 years of their copyright term, are no longer commercially exploited, and are not available at a reasonable price.

Before I relinquish my time, I do want to thank a number of people who have worked tirelessly on behalf of this bill. Allow me to thank David Jones and Tom Sydnor of the staff of Chairman Orrin Hatch, who is not only our previous Judiciary Committee Chairman, but a leader on copyright and intellectual property issues; Susan Davies and Dan Fine of Senator Leahy's staff, who also has long been a leader on intellectual property issues; and finally, David Hantman of Senator Feinstein's staff, a Senator with whom I am happy to have teamed to introduce the ART Act in the last Congress.

Having begun with the staff, who rarely get mentioned as much as they deserve for the great work they do, let me also thank the Senators they work for: Senators Hatch, Leahy, and Feinstein for their co- sponsorship, as well as the Majority Leader, who has taken a personal interest in this legislation and worked to make it happen.

Mr. President, would the Senator yield for a quick question?

As the chairman knows, he and I and our other cosponsors have worked throughout last Congress on the provisions of the Family Entertainment and Copyright Act of 2005 that we have introduced today. With respect to the Family Movie Act portion of the bill, I just wanted to raise the point that there had been some concern over the potential effect of the FMA on future cases involving ``ad skipping'' technologies and ask if you would have any objection to including in the record the relevant portion of the floor discussion on that issue from last Congress?

Section 102 addresses a serious piracy issue facing the movie business: the use of camcorders in a motion picture theater. Sad to say, there are people who go to the movie theater, generally during pre-opening ``screenings'' or during the first weekend of theatrical release, and using sophisticated digital equipment, record the movie. They're not trying to save $8.00 so they can see the movie again. Instead, they sell the camcorded version to a local production factory or to an overseas producer, where it is converted into DVDs or similar products and sold on the street for a few dollars per copy. This misuse of camcorders is a significant factor in the estimated $3.5 billion per year of losses the movie industry suffers because of hard goods piracy. Even worse, these camcorded versions are posted on the Internet through ``P2P'' networks such as KaZaA, Grokster and Morpheus--and made available for millions to download. The goal of our bill is to provide a potent weapon in the arsenal of prosecutors to stem the piracy of commercially valuable motion pictures at its source.

Absolutely not. The offense is only applicable to transmitting or copying a movie in a motion picture exhibition facility, which has to be a movie theater or similar venue ``that is being used primarily for the exhibition of a copyrighted motion picture.'' In the example of Best Buy--the store is being used primarily to sell electronic equipment, not to exhibit motion pictures. For the same reason, the statute would not cover a university student who records a short segment of a film being shown in film class, as the venue is being used primarily as a classroom, and not as a movie theater.

Yes, on all points.

Mr. President, would the chairman yield for a question?

As the chairman knows, he and I and our other co-sponsors have worked throughout this Congress on the provisions of the Family Entertainment and Copyright Act of 2004 that we have introduced today. I just want to confirm what I believe to be our mutual understanding about the effect of certain provisions of the Family Movie Act. Title II of the Family Entertainment and Copyright Act of 2004 that we introduced today modifies slightly the Family Movie Act provisions of H.R. 4077 as passed by the House of Representatives. That bill created a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances that take place in the course of a private viewing in a household from an authorized copy of the motion picture. The House- passed version specifically excluded from the scope of the new copyright exemption computer programs or technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture.

My understanding is that this provision reflected a ``belt and suspenders'' approach that was adopted to quiet the concerns of some Members in the House who were concerned that a court might misread the statute to apply to ``ad-skipping'' cases. Some Senators, however, expressed concern that the inclusion of such explicit language could create unwanted inferences as to the ``ad-skipping'' issues at the heart of the recent litigation. Those issues remain unsettled, and it was never the intent of this legislation to resolve or affect those issues. In the meantime, the Copyright Office has confirmed that such a provision is unnecessary to achieve the intent of the bill, which is to avoid application of this new exemption in potential future cases involving ``ad-skipping'' devices; therefore, the Senate amendment we offer removes the unnecessary exclusionary language.

Would the chairman confirm for the Senators present his understanding of the intent and effect, or perhaps stated more appropriately, the lack of any effect, of the Senate amendment on the scope of this bill?

I thank the chairman. I am pleased that we share a common understanding. If the chairman would yield for one more question about the Family Movie Act?

This bill also differs from the House-passed version because it adds two ``savings clauses.'' As I understand it, the ``copyright'' savings clause makes clear that there should be no ``spillover effect'' from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The second, relating to trademark, clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement. Is that the chairman's understanding as well?

Mr. President, I rise today to re-introduce the National Mormon Pioneer Heritage Area Act.

The story behind and about the Mormon pioneers' 1,400-mile trek from Illinois to the Great Salt Lake Valley is one of the most compelling and captivating in our Nation's history. This legislation would designate as a National Heritage Area an area that spans some 250 miles along Highway 89 and encompasses outstanding examples of historical, cultural, and natural resources that demonstrate the colonization of the western United States, and the experience and influence of the Mormon pioneers in furthering that colonization.

The landscape, architecture, artisan skills, and events along Highway 89

convey in a very real way the legacy of the Mormon pioneers' achievements. The community of Panquitch for example, has an annual Quilt Day celebration to commemorate the sacrifice and fortitude of its pioneers whose efforts saved the community from starvation in 1864. The celebration is in remembrance of the Quilt Walk, a walk in which a group of men from Panquitch used quilts to form a path that would bear their weight across the snow. This quilt walk enabled these men to cross over the mountains to procure food for their community, which was facing starvation as it experienced its first winter in Utah.

Another example of the tenacity of pioneers can be seen today at the Hole-in-the-Rock. Here, in 1880, a group of 250 people, 80 wagons, and 1,000 head of cattle upon the Colorado River Gorge. Finding no pathways down to the river, the pioneers decided to use a narrow crevice leading down to the bottom of the gorge. To make the crevice big enough to accommodate wagons, the pioneers spent 6 weeks enlarging the crevice by hand, using hammers, chisels, and blasting powder. They then attached large ropes to the wagons as they began their descent down the steep incline. It is because of such tenacity and innovation on the part of pioneers that the western United States was shaped the way it was and much of that has contributed to the way of life and landscape still found in the West today.

The National Mormon Pioneer Heritage Area will serve as a special recognition of the people and places that have contributed greatly to our Nation's development. It will allow for the conservation of historical and cultural resources, the establishment of interpretive exhibits, will increase public awareness of the surviving skills and crafts of those living along Highway 89, and specifically allows for the preservation of historic buildings. In light of the benefits associated with preserving the rich heritage of the founding of many of the communities along Highway 89, my legislation has broad support from Sanpete, Sevier, Piute, Garfield, and Kane counties and is a locally based, locally supported undertaking.

Since the introduction of this legislation in the 108th Congress, I am pleased that the local counties, who have been unanimously supportive of this legislation, have come together to outline in a Memorandum of Understanding, with the local coordinating entity identified in the legislation, the cooperative relationship the coordinating entity enjoys with the elected officials of the local counties.

This legislation passed the Senate both in the 107th and 108th Congresses as part of packages agreed upon by the committee of jurisdiction. Unfortunately, both times the packages were not able to be considered by the other body prior to adjournment. I reintroduce this bill today with the hope that during this session of Congress we might achieve success in this body early enough to be considered by the House.

Mr. President, today I am re-introducing a bill which is intended to bring to a close the Federal acquisition of an important piece of privately held land, located within the federally designated desert tortoise reserve in Washington County, UT.

As some of my colleagues are aware, this is not the first time legislation has been introduced in an attempt to resolve this issue. Most recently, on December 7, 2004, at the conclusion of the 108th Congress, the Senate passed by unanimous consent an amendment in the nature of a substitute to H.R. 620, which adopted as title XVI agreed upon provisions of S. 1209. Unfortunately, the House of Representatives adjourned sine die before it had time to act upon H.R. 620. The legislation I am introducing today is virtually the same as the language earlier adopted by the Senate, except for a technical clarification regarding management of the acquired lands.

I want to personally express my appreciation to Chairman Domenici and his staff for their leadership and assistance on this issue. I would also like to thank the ranking minority member, Mr. Bingaman, the Department of the Interior, and their respective staffs, for their assistance and support of this measure.

Earlier in July of 2000, I introduced S. 2873, which was referred to and reported favorably by the Senate Committee on Energy and Natural Resources. In addition, similar legislation was twice approved by the House of Representatives, both in the 106th and 107th Congresses. For over a decade, the private property addressed by this bill has been under Federal control and the Federal Government has enjoyed the benefits of the private property without fulfilling its constitutional obligation to compensate the landowner. The government's failure to timely acquire the landowner's private property has forced the landowner into bankruptcy. It is my hope that the time has come to finally resolve this issue.

In March of 1991, the desert tortoise was listed as an endangered species under the Endangered Species Act. Government and environmental researchers determined that the land immediately north of St. George, UT, was prime desert tortoise habitat. Consequently, in February 1996, nearly 5 years after the listing, the United States Fish and Wildlife Service, USFWS, issued Washington County a Section 10 permit under the Endangered Species Act which paved the way for the adoption of a habitat conservation plan, HCP, and an implementation agreement. Under the Plan and Agreement, the Bureau of Land Management, BLM, committed to acquire all private lands in the designated habitat area for the formation of the Red Cliffs Reserve for the protection of the desert tortoise.

One of the private land owners within the reserve is Environmental Land Technology, Ltd., ELT, which began acquiring lands from the State of Utah in 1981 for residential and recreational development several years prior to the listing of the species. Moreover, in the years preceding the listing of the desert tortoise and the adoption of the habitat conservation plan, ELT completed appraisals, cost estimates, engineering studies, site plans, surveys, utility layouts, and right- of-way negotiations. ELT staked out golf courses, and obtained water rights for the development of this land. Prior to the adoption of the HCP, it was not clear which lands the Federal and local governments would set aside for the desert tortoise, although it was assumed that there were sufficient surrounding Federal lands to provide adequate habitat. However, when the HCP was adopted in 1996, the decision was made to include ELT's lands within the boundaries of the reserve primarily because of the high concentrations of tortoises. The tortoises on ELT land also appeared to be one of, if not the only population without an upper respiratory disease that afflicted all of the other populations. As a consequence of the inclusion of the ELT lands, ELT's development efforts were halted.

With assurances from the Federal Government that the acquisition of the ELT development lands was a high priority, the owner negotiated with, and entered into, an assembled land exchange agreement with the BLM in anticipation of intrastate land exchanges. The private land owner then began a costly process of identifying comparable Federal lands within the State that would be suitable for an exchange for his lands in Washington County. Over the last 7 years, BLM and the private land owners, including ELT, have completed several exchanges, and the Federal Government has acquired, through those exchanges or direct purchases, nearly all of the private property located within the reserve, except for approximately 1,516 acres of the ELT development land. However, with the unforeseen creation of the Grand Staircase- Escalante National Monument in September 1996, and the subsequent land exchanges between the State of Utah and the Federal Government to consolidate Federal lands within that monument, there are no longer sufficient comparable Federal lands within Utah to complete the originally contemplated intrastate exchanges for the remainder of the ELT land.

Faced with this problem, and in light of the high priority the Department of the Interior has placed on acquiring

these lands, BLM officials recommended that the ELT lands be acquired by direct purchase. During the FY 2000 budget process, BLM proposed that $30 million be set aside to begin acquiring the remaining lands in Washington County. Unfortunately, because this project involves endangered species habitat and the USFWS is responsible for administering activities under the Endangered Species Act, the Office of Management and Budget shifted the $30 million from the BLM budget request to the USFWS's Cooperative Endangered Species Conservation Fund budget request. Ultimately, however, none of those funds was made available for BLM acquisitions within the Federal section of the reserve. Instead, the funds in that account were made available on a matching basis for the use of individual States to acquire wildlife habitat. The result of this bureaucratic fumbling has resulted in extreme financial hardship for ELT.

The lands within the Red Cliffs Reserve are ELT's only asset. The establishment of the Washington County HCP has effectively taken this property and prevented ELT from developing or otherwise disposing of the property. ELT has been brought to the brink of financial ruin as it has exhausted its resources in an effort to hold the property while awaiting the compensation to which it is entitled. ELT has had to sell its remaining assets, and the private land owner has also had to sell his personal assets, including his home, to simply hold the property. This has become a financial crisis for the landowner. It is simply wrong for the Federal Government to expect the landowner to continue to bear the cost of the government's efforts to provide habitat for an endangered species. That is the responsibility of the Federal Government. Moreover, while the landowner is bearing these costs, he continues to pay taxes on the property. This situation is made more egregious by the failure of the Department of the Interior to request any acquisition funding for FY 2004 or FY 2005, even though this acquisition has been designated a high priority by the agency. Over the past several years, ELT has pursued all possible avenues to complete the acquisition of these lands. The private land owner has spent millions of dollars pursuing both intrastate and interstate land exchanges and has worked cooperatively with the Department of the Interior. Unfortunately, all of these efforts have thus far been fruitless.

The bill that I am introducing today will finally bring this acquisition to a close. In my view, a legislative taking should be an action of last resort. But, if ever a case warranted legislative condemnation, this is it. This bill will transfer to the Federal Government all right, title, and interest in the ELT development property within the Red Cliffs Reserve, including an additional 34 acres of landlocked real property owned by ELT adjacent to the land within the reserve. Subject to existing law, the Uniform Appraisal Standards for Federal Land Acquisitions and the Uniform Standards and Practices for Appraisal Professionals, USPAP, a United States Court of competent jurisdiction shall determine the value for the land.

The bill includes language to allow, as part of the legislative taking, for the landowner to recover reasonable costs, interest, and damages, if any, as determined by the court. It is important to understand that, while Federal acquisitions should be completed on the basis of fair market value, when the Federal Government makes the commitment to acquire private land, the landowner should not have to be driven into financial ruin while waiting upon the Federal Government to discharge its obligation. While the Federal Government has never disputed its obligation to acquire the property, it has had the benefit of the private land for all these years without having to pay for it. The private landowner should not have to bear the costs of this Federal foot-dragging.

This legislation is consistent with the high priority the Department of the Interior has repeatedly placed on this land acquisition, and is a necessary final step towards an equitable resolution. The time for pursuing other options has long since expired and it is unfortunate that it requires legislative action. Without commenting on the Endangered Species Act itself, it would seem that if it is the government's objective to provide habitat for the benefit of an endangered species, then the government ought to bear the costs, rather than forcing them upon the landowner. It is also time to address this issue so that the Federal agencies may be single-minded in their efforts to recover the desert tortoise which remains the aim of the creation of the reserve. This legislation simply codifies the status quo by enabling the private land owner to obtain the compensation to which he is constitutionally entitled. It is time to right this wrong and get on with the efforts to recover the species and I encourage my colleagues to again support the immediate enactment of this important legislation.

Mr. President, I rise today to join Senators Grassley, Hatch, Carper, and many others in introducing the Class Action Fairness Act of 2005. This legislation addresses the continuing problems in class action litigation, particularly unfair and abusive settlements that shortchange consumers across America.

The time for this bill has come. We have worked together on a bipartisan basis on this legislation in past Congresses. In fact, versions of this bill have passed the House of Representatives on two occasions in the past. In the Senate, we passed this bill through the Judiciary Committee in each of the last two Congresses and came within one vote of gaining cloture on the bill.

We worked successfully to substantially improve this bill during the last Congress. As a result of the interest of Senators Feinstein, Dodd, Schumer and Landrieu, we have changed the bill in important ways. Now, only cases that are truly national in scope will be tried primarily in the Federal courts. Cases that primarily involve people from only one State and that interpret State law will remain in State court. These changes will ensure that class action cases are handled efficiently and in the appropriate venues and that no case that has merit will be turned away.

We have a simple story to tell. Consumers are too often getting the short end of the stick in class action cases, recovering coupons or pocket change, while their lawyers reap millions. Many of these complex class action cases proceed exactly as we would hope. Injured parties, represented by strong advocates, get their day in court or reach a positive settlement that is good for the parties and handled well by their attorney.

Unfortunately, this is not how it always works. Rather, more and more frequently, some are taking advantage of the system and, as a result, consumers are getting the short end of the stick, recovering coupons or pocket change, while the real reward is going to others. The Washington Post put it clearly, ``no portion of the American civil justice system is more of a mess than the world of class actions.''

Our remedy is straightforward. Consumers deserve notices that are written in plain English so they can understand their rights and responsibilities in the lawsuit. Too many of the class action notices are designed to be impossible to comprehend. Further, if the cases are settled, the notice to the class members must clearly describe the terms of the settlement, the benefits to each plaintiff and a summary of the attorneys' fees in the case and how they were calculated. We are grateful that the Federal Judicial Conference has adopted our idea and has already begun to improve the notices provided to class action plaintiffs.

Second, State attorneys general should be notified of proposed class action settlements to stop abusive cases if they want. This encourages a neutral third party to weigh in on whether a settlement is fair and to alert the court if they do not believe that it is. The Attorney General review is an extra layer of security for the plaintiffs and is designed to ensure that abusive settlements are not approved without a critical review by one or more experts.

Third, a class action consumer bill of rights will help limit coupon or other unfair settlements.

Finally, we allow many class action lawsuits to be removed to Federal court. This is only common sense. These are national cases affecting consumers in 50 States. If the court rules were being drafted today, these are exactly the types of cases which we would want and expect to be tried in Federal court.

Stories of nightmare class action settlements that affect consumers around the country are all too frequent. For example, a suit against Blockbuster video yielded dollar off coupons for future video rentals for the plaintiffs while their attorneys collected $9.25 million. In California State court, a class of 40 million consumers received $13 rebates on their next purchase of a computer or monitor--in other words they had to purchase hundreds of dollars more of the defendants' product to redeem the coupons. In essence, the

plaintiffs received nothing, while their attorneys took almost $6 million in legal fees. We could list many, many more examples, but let me discuss just one more case that is almost too strange to believe.

I am speaking about the Bank of Boston class action suit and the outrageous case of Martha Preston from Baraboo, WI. She was an unnamed class member of a class action lawsuit against her mortgage company that ended in a settlement. The plaintiffs' lawyers were supposed to represent her. Instead, the settlement that they negotiated for her was a bad joke. She received $4 and change in the lawsuit, while her attorneys pocketed $8 million.

Yet, the huge sums her attorneys received were not the worst of the story. Soon after receiving her $4, Ms. Preston discovered that her lawyers took $80, 20 times her recovery, from her escrow account to help pay their fees. Naturally shocked, she and the other plaintiffs sued the lawyers who quickly turned around and sued her in Alabama, a State she had never visited, for $25 million. Not only was she $75 poorer for her class action experience, but she also had to defend herself against a $25 million suit by the very people who took advantage of her in the first place.

No one can argue with a straight face that the class action process is not in serious need of reform.

Comprehensive studies support the anecdotes we have discussed. For example, a study on the class action problem by the Manhattan Institute demonstrates that class action cases are being brought disproportionately in a few counties where plaintiffs expect to be able to take advantage of lax certification rules.

The study focused on three county courts--Madison County, IL; Jefferson County, TX; and Palm Beach County, FL--that have seen a steep rise in class action filings over the last several years that seems disproportional to their populations. They found that rural Madison County, IL, ranked third nationwide, after Los Angeles County, CA, and Cook County, IL, in the estimated number of class actions filed each year, whereas rural Jefferson County and Palm Beach County ranked eighth and ninth, respectively. As plaintiff attorneys found that Madison County was a welcoming host, the number of class action suits filed there rose 1,850 percent between 1998 and 2000.

Another trend evident in the research was the use of ``cut-and- paste'' complaints in which plaintiffs'' attorneys file a number of suits against different defendants in the same industry challenging standard industry practices. For example, in one situation, six law firms filed nine nearly identical class actions in Madison County in the same week alleging that the automobile insurance industry is defrauding Americans in the way that they calculate claims rates for totaled vehicles.

The system is not working as intended and needs to be fixed. The way to fix it is to move more of these cases currently being brought in small State courts like Madison County, IL, to Federal court.

The Federal courts are better venues for class actions for a variety of reasons articulated clearly in a RAND study. RAND proposed three primary explanations why these cases should be in Federal court. ``First, federal judges scrutinize class action allegations more strictly than state judges, and deny certification in situations where a state judge might grant it improperly. Second, state judges may not have adequate resources to oversee and manage class actions with a national scope. Finally, if a single judge is to be charged with deciding what law will apply in a multistate class action, it is more appropriate that this take place in federal court than in state court.''

We all know that class actions can result in significant and important benefits for class members and society, and that most class lawyers and most State courts are acting responsibly. Class actions have been used to desegregate racially divided schools, to obtain redress for victims of employment discrimination, and to compensate individuals exposed to toxic chemicals or defective products. Class actions increase access to our civil justice system because they enable people to pursue claims that collectively would otherwise be too expensive to litigate.

The difficulty in any effort to improve a basically good system is weeding out the abuses without causing undue damage. The legislation we propose attempts to do this.

Let me emphasize the limited scope of this legislation. We do not close the courthouse door to any class action. We do not require that State attorneys general do anything with the notice they receive. We do not deny reasonable fees for class lawyers. And we do not mandate that every class action be brought in Federal court. Instead, we simply promote closer and fairer scrutiny of class actions and class settlements.

Right now, people across the country can be dragged into lawsuits unaware of their rights and unarmed on the legal battlefield. What our bill does is give back to regular people their rights and representation. This measure may not stop all abuses, but it moves us forward. It will help ensure that unsuspecting people like Martha Preston don't get ripped off.

We believe this is a moderate approach to correct the worst abuses, while preserving the benefits of class actions. It is both pro-consumer and pro-defendant. We believe it will make a difference.

Mr. President, I'm introducing a bill today that is aimed at helping rural communities build or improve essential community facilities such as shelters, nursing homes, hospitals, medical clinics, and fire and rescue-type projects. My bill would make it possible for project sponsors to accept certain USDA loan guarantees without risking the tax exempt status that enables them to finance these initiatives.

Clarification of existing tax rules, as proposed in this bill, will provide certainty for project sponsors, help lower project costs for rural communities, and help deal with a backlog of loan applications for small communities.

The needs are great in many rural communities. This measure will help communities help themselves and I look forward to working with the Senate Finance Committee on this important topic.

I ask unanimous consent that the text of the measure be printed in the Record.