Vessel Hull Design Protection Amendments of 2007

Mr. President, we are now in the final days of this session, and congressional Democrats have left an enormous amount of work undone. As we move into the final stretch, let's take stock of the unfinished business. On spending, we are 2 full months into fiscal 2008, and our friends across the aisle are still staring at 11 unfinished spending bills out of the 12 they were supposed to do. We need to work together to get those overdue spending bills signed into law.

On troop funding, thousands of American families will have sons and daughters fighting overseas this Christmas, and under the Constitution that falls on us to provide for them. We may disagree about the mission, but no one should disagree about getting those courageous men and women everything they need while they are fighting in the field. Congressional Democrats need to get serious about the troops and get them the funds they need without any more games and without any further delay.

We have heard some remarkable reports from Iraq in recent weeks. Sunni tribes and other militants who turned against al-Qaida are now working with coalition forces to secure Iraqi neighborhoods and towns. Refugees are returning to Iraq in droves. Shops are reopening, curfews are being relaxed. Al-Qaida in Iraq, we are told, has been pushed to the brink.

Americans like what they have heard, and even some congressional Democrats have acknowledged the positive reports. Congressman Murtha, a hero of the antiwar left, says the new strategy is a success. Congressman Dicks talked about a new feeling of normalcy in Iraq. Thanks to the increase in U.S. forces and a smart new strategy, we have seen a stunning reversal.

Unfortunately, talk of congratulations is scarce among the antiwar left. Rather than stop for a minute to acknowledge what we are hearing from the field, our friends on the other side now seem to be looking around for something that is not going well so they can blame that on Republicans.

According to press reports, they have settled on gas prices. And we do need to do something to lower energy costs. But the bill our Democratic friends are reportedly about to bring to the floor will not do that. In fact, the bill they are discussing would actually increase gas prices at the pump and electricity bills in States that do not have an abundance of windmills. An energy bill that raises the cost of energy is not what we need today.

Frankly, I am baffled by the congressional Democrats' position on the whole troop funding debate. Earlier in the year, they said sending more troops to Iraq would lead to failure. Then they approved the funds anyway. Now they say things are going well, and they want to cut off the funds that are needed to finish the job. So they funded the war when they thought it would fail, and now they want to defund it when they think it is succeeding.

Does this make any sense at all? Reasonable people could be able to agree that now is not the time to talk about walking away from our troops in Iraq. Yet this is exactly what Democrats are planning to do.

The senior Senator from Massachusetts has said he thinks the Democrats have an obligation, an obligation to cut off funds for the war. And now they are apparently following through with it. Just in time for the holidays, they are forcing the Pentagon to prepare pink slips for more than 250,000 employees as a way of getting around the threat.

I would urge the majority to rethink its position, to keep its word, and to send our troops the funds they need to finish their mission and return home in success. We have a solemn obligation to assure America's military families that their sons and daughters will get whatever they need. Let's not break that trust at this moment of optimism and hope and good news from the field at a time when even Congressman Murtha says the surge is working.

Congressional Democrats need to get serious about security at home too. It is no accident that we have not been hit here since 9/11. We passed the PATRIOT Act, set up the Department of Homeland Security, and made sure intelligence agents would have the tools they need to do their jobs.

One of those tools is the Protect America Act that we passed in August and expires on February 1. This essential terror-fighting tool recognizes that we need to be able to monitor terrorists overseas. And however the Senate deals with its expiration, we must protect its core strengths. But Democrats on the Judiciary Committee seem to disagree. They just voted for a revised version of this law that weakens it in dangerous ways. The experts tell us that under this new version, the Judiciary Committee version, U.S. commanders could be blocked from gathering critical intelligence on foreign targets.

Imagine: An American commander prepares to attack a city such as Fallujah. He gives orders for a blanket surveillance of the city to pinpoint terrorist activity. Then the lawyers step in and say: Sir, you cannot do that. You need to go to the FISA Court first.

Well, this is one vision of how to fight the war on terror. Republicans have a different view. We think we need to stop foreign terrorists who want to kill innocent Americans, not be paralyzed into inaction over their search and seizure rights.

Republicans are ready to support the bipartisan, commonsense Senate Intelligence Committee bill. In addition to allowing our commanders greater freedoms in the field, this version recognizes that telecom companies should not be sued for doing their patriotic duty in helping intelligence officials to protect American lives.

It also recognizes if these companies are exposed to lawsuits, taxpayers should not have to foot the bill, which is exactly what Democrats on the Judiciary Committee are proposing. They want to make sure the trial lawyers are happy one way or another. We need to protect the telecom companies that did their duty and the taxpayers, not the trial lawyers, who want to bring these lawsuits.

Congressional Democrats have neglected their duty on the 12 spending bills. They are threatening to neglect their duty to the troops in the field and to our security at home. Now they are about to slap millions of Americans with a middle-class tax hike better known as the AMT.

Well, the American people have a right to know how Democrats found the time for 63 Iraq votes over the course of the past year, some of them at midnight, but somehow couldn't find an afternoon to fix a mistake in the Tax Code that is about to hit 50 million households. It is not as if they didn't see it coming. They have known about the problem all year. Treasury Secretary Paulson reminded us of its urgency in October. He sent us a letter, dated October 23, reminding us that the problem was before us. He warned that if Congress didn't act by early last month, about 25 million households would get mistakenly whacked with a major tax hike. He said if we didn't act by the middle of this month, 50 million would face delays in getting their refunds. Even if we acted today, millions of tax returns will still be delayed. We have already inconvenienced millions of American taxpayers by inaction.

The IRS oversight chairman reminded us about the problem again last month, saying the longer we wait, the longer the refund delays would be. Here is a letter from the IRS, dated November 26. This is a tax none of these people were ever intended to pay. Originally targeted at fewer than 200 families, it was never indexed for inflation. It is a mistake that has never been permanently fixed, and Republicans are not about to let Democrats impose a

new tax on a lot of other taxpayers to pay for its correction. Americans don't need to be giving Government an interest-free loan in April by letting the IRS hold on to their refunds. They need to get their refunds when they expect them. We need to fix the AMT without new taxes, and we need to do it now. The number of families affected is staggering: Democratic foot dragging on the AMT threatens 1.6 million taxpayers in New Jersey, more than 3 million in New York, and nearly 4.5 million in California. That is more people in California alone than we have in my State. We need to block this giant middle-class tax hike now before voters get stuck with it in April.

Senate Democrats need to act on executive nominations, including nominees to head the Department of Veterans Affairs and the Department of Agriculture. The Judiciary Committee needs to do a much better job processing circuit court nominations. Christmas will be here before we know it, and we have only had one hearing--one--on one circuit court nomination since the summer recess. We have only had five hearings for five circuit court nominees the entire year of 2007. During a comparable period in President Clinton's last Congress, the Republican- controlled Senate held hearings on 10 of President Clinton's circuit court nominees, including five after the August recess.

We have had qualified circuit court nominees up here for months who satisfy the supposed criteria of the Democratic majority. There is no good reason for the Judiciary Committee to bring progress on circuit court nominations to a standstill. It is time our colleagues on the other side acted on nominations and on the other legislative duties I have listed.

They have spent nearly a year now focusing on politics rather than essentials. Now they are trying to distract the public by shifting the focus at the finish line. We need to pass the bills that keep the Government functioning. We need to stop taxes from being raised on the middle class. We need to strengthen the laws that help us catch terrorists before they strike, and we need to fund the troops in the field.

It is now December, the last month of the year. Senate Democrats have more to do in these last few weeks than they have already done all year. It is time to stop the political show. It is time to focus for once on the fundamentals.

Mr. President, as the Senate begins its final work period of the year, I wish to thank those members of the Judiciary Committee who have been cooperative and who have worked so hard throughout this year. Much has been accomplished. But much can still be done. We reported and the Senate passed an important privacy measure, the Identity Theft Enforcement and Restitution Act, S. 2168, just before the Thanksgiving recess. I urge the House to adopt it without delay. In addition, the Senate again passed our copyright bill to protect vessel hull designs, S. 1640, which I hope will also be adopted by the House.

Months ago we reported and passed an important court security bill, S. 378, and Freedom of Information Act reform legislation, S. 849. I believe that we have resolved differences raised by the House and should be able in the short time remaining to us this year to have the Senate reconsider these measures in slightly modified form, pass them by unanimous consent, and have the House endorse them, as well.

I would like to see us consider and pass important matters the House has passed and sent to us. The Free Flow of Information Act, H.R. 2102, is on the Senate calendar. It would provide protection to first amendment values by establishing a Federal privilege and procedure for considering claims of press protection. For the first time, this year the Judiciary Committee reported a similar bill, S. 2035, and we did so on a bipartisan basis. We should proceed to enact this legislation into law.

Another important matter sent to us from the House that I would hope we could enact before adjourning this year is one on which we have worked for some time, the Employment Non-Discrimination Act, H.R. 3685. We also have before us a House-passed version of the Second Chance Act, H.R. 1593. While it does not include every provision I would have liked to incorporate, we should nonetheless proceed to enact this legislation.

I urge the Republican Senator who has a hold on the bill to extend temporary judgeships around the country, S. 1327, to remove this hold so that we can provide the relief needed in our Federal judiciary in Kansas, Ohio, Nebraska, California, and Hawaii. Enacting court security legislation will likewise require the relinquishing of a Republican hold. Another matter stalled since this summer by a Republican hold has been the Emmett Till Unsolved Civil Rights Crime Act, S. 535. I have made statements to the Senate about these consensus measures before. I hope that with the year rapidly ending, the Republican Senator holding up these worthwhile matters will reconsider the opposition and allow bills supported by an overwhelming, bipartisan majority of the Senate to pass.

A number of other measures reported by the Judiciary Committee have been delayed by Republican holds too. If it is not possible to move these measures this month, I urge the Senate to take up and pass these bills when it begins its second session in January. One such bill is the War Profiteering Prevention Act, S. 119, which was reported by the committee in April. It would provide a significant new tool for Federal law enforcement to combat the scourge of war profiteering, and it is needed now more than ever, given the ongoing reports of rampant fraud, waste, and abuse in Iraq. Another is the School Safety and Law Enforcement Improvements Act, S. 2084, which we developed in response to the tragedy at Virginia Tech.

When we return next year, we will have the opportunity to consider and enact patent reform legislation, the Leahy-Hatch Patent Reform Act of 2007, S. 1145. I hope that we will also make time to consider our comprehensive bipartisan data privacy bill, the Leahy-Specter Data Privacy and Security Act, S. 495, which we reported in May.

Next spring I hope we can turn to the Deceptive Practices and Voter Intimidation Prevention Act, S. 453, which the committee reported this fall, and our bipartisan Leahy-Cornyn Public Corruption Prosecution Improvements Act, S. 1946, that adds teeth to our ethics reforms.

These are just some of the matters on which the Judiciary Committee has been hard at work this year. We could not have accomplished what we have without the contributions of our members. I want, in particular, to commend our newest members, Senators Cardin and Whitehouse, for their exceptional work. They have initiated legislative efforts, chaired important hearings, and been full partners in the work of the committee.

I would also like to thank and commend Senator Durbin for chairing our newest subcommittee, the Subcommittee on Human Rights and the Law, and for making it one of the most active and productive subcommittees we have. Senator Durbin has originated genocide accountability and child soldier accountability legislation, trafficking in persons legislation, and war crimes legislation, all in rapid succession. He has made the Human Rights Subcommittee into what we hoped it would be, a vehicle to focus our attention on fundamental aspects of what makes us all Americans. We all owe him a debt of gratitude.

Of course, we would not be nearly as far along in our work without the help of our Republican members, led by Senator Specter. We have proceeded with significant bipartisan legislation on privacy, press shield, patents, FOIA, public corruption, and crime. Currently we are working together to improve the FISA legislation about to be considered by the Senate by exploring whether we can adopt an amendment that will increase accountability through the procedural device of substitution, rather than a blanket grant of retroactive immunity for the warrantless wiretapping of Americans that took place from 2001 through 2007. Senator Specter and I joined to seek to restore the great writ of habeas corpus but, despite support by a majority of the Senate, we were stymied by a Republican filibuster. Likewise, we have joined to achieve majority support for voting rights for the District of Columbia only to be blocked this year by another Republican filibuster.

I hope that as we enter these last few weeks of the year, we are allowed to

make progress on the matters I have outlined here today and that the obstruction that has stalled our further progress will not be continued. Let us move forward together in the best interest of the American people. Any Senator can prevent action on an item in these waning days of the session. There is no secret or magic about that. The question for Senators this month is whether they are willing to put aside minor differences and partisan agendas to join with us in making progress and moving forward.

I yield the floor.

Mr. Speaker, I, too, rise in support of H.R. 6531, the Vessel Hull Design Protection Amendments Act of 2008, and urge its passage by the House. I'll try not be too detailed, Mr. Speaker, but the subject matter invites some detail.

I understand this bill is better informed through a review of the underlying statute, the Vessel Hull Design Protection Act, which Congress passed as part of the Digital Millennium Copyright Act in 1998. Chairman Howard Berman, the distinguished gentleman from California, and I were the primary sponsors of the Digital Millennium Copyright Act of that year.

Boat manufacturers invest significant resources in the design and development of safe, structurally sound, and often high-performance boat hull designs. Including research and development costs, a boat manufacturer may invest as much as $50,000 to produce a design from which one line of vessels can be manufactured.

When a boat hull is designed and the design engineering and tooling process is complete, the engineers then develop a boat plug from which they construct a boat mold. The manufacturer constructs a particular line of boats from this mold.

Unfortunately, those individuals intent on stealing an original boat design can simply use a finished boat hull in place of the manufacturer's plug to develop a mold. This practice is referred to in the trade as splashing a mold. The copied mold can then be used to create a line of vessels with a hull seemingly identical to that appropriated from the design manufacturer.

Hull splashing is a problem for consumers as well as manufacturers in boat design firms. Consumers who purchase these knock-off boats are defrauded in the sense that they are not

benefiting from the many attributes of hull design, other than shape, that are structurally relevant, including those related to quality and safety.

It is also highly unlikely that a consumer will know if a boat had been copied from an existing design. More importantly for the purposes of promoting intellectual property rights, if manufacturers are not permitted to recoup at least some of their research and development costs, they may no longer invest in new, innovative boat designs that boaters eagerly await.

In response to this problem and a Supreme Court case called Bonito Boats that prohibits State action on the matter, we wrote the Vessel Hull Design Protection Act a decade ago. The statute has functioned well during this time, but its continued viability is complicated by an eleventh circuit opinion, Maverick Boat Company v. American Marine Holding.

Maverick involves a dispute under the vessel hull statute between two marine manufacturers. Unfortunately, the holding of the case has created a loophole that knock-off manufacturers may well exploit. Because the statute protects the design of a vessel hull, and a hull is defined as the frame or body of a vessel, including the deck, exclusive of masts, sails, yards, and rigging, the court presumably reasoned that a hull must be examined in its totality. In other words, when assessing the design attributes of a hull under the statute, one may not examine its components, meaning the frame or body and the deck, separately.

This reasoning subverts Congress' intent when we passed the Vessel Hull Design Protection Act. At the time, proponents of reform were responding to the Supreme Court's ruling in Bonito Boats, which struck down State plug-mold statutes that effectively banned hull splashing as a method for copying hull designs. That is, the very practice, that is, hull splashing, that Congress sought to prescribe in 1998 would, in part, be legitimized by the eleventh circuit's decision in the Maverick case.

In brief, H.R. 6531 cures this problem by amending the definition of vessel hulls. The new definition will prevent knock-off manufacturers from indulging in hull splashing or misappropriation of either an original design of a hull or a deck. The bill specifies that only the hull's exterior frame or body is protected and clarifies other terms under the statute.

Importantly, H.R. 6531 contains a provision that was omitted from an earlier draft, S. 1640, that the other body passed last October. The new provision creates an exception to the vessel hull statute for the Armed Forces. This is necessary because the United States Navy, the United States Coast Guard, and perhaps the United States Marines, often have vessels built to specifications. It is not unthinkable that a vessel constructed for use by the Armed Forces might infringe a registered design.

Nothing in the legislative history of the statute suggests that Congress intended to complicate national security in any way. This is especially true since a separate provision of the U.S. Code, section 2320 of title X, addresses the rights of the Armed Forces and private parties to use patented inventions, copyrighted works, and technical data related to defense projects.

H.R. 6531, therefore, ensures this provision or a contract between the government and relevant third parties will determine the rights of the Armed Forces in a registered hull design.

Mr. Speaker, this is a noncontroversial bill that has received process in the form of hearings in this Congress, as well as the 109th Congress. It is a technical fix that allows the Vessel Hull Design Protection Act to operate as Congress intended.

I urge my colleagues to support H.R. 6531.

I have no further requests for time, Mr. Speaker, so I yield back my time.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on October 4, 2007, at 9:30 a.m., in open session to consider the following nominations: Honorable John J. Young, Jr. to be Under Secretary of Defense for Acquisition, Technology, and Logistics; Douglas A. Brook to be Assistant Secretary of the Navy for Financial Management and Comptroller; and Robert L. Smolen to be Deputy Administrator for Defense Programs, National Nuclear Security Administration.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on October 4, 2007, at 10 a.m., in order to conduct a hearing entitled ``Examining the Regulation and Supervision of Industrial Loan Companies.''

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to hold a hearing during the session of the Senate on Thursday, October 4, 2007, at 10 a.m., in room 253 of the Russell Senate Office Building.

The hearing will review the Department of Homeland Security's implementation and administration of several port and cargo security programs authorized in the SAFE Port Act, the Maritime and Transportation Security Act of 2002, and the Coast Guard and Maritime Transportation Act of 2004.

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to hold a hearing during the session of the Senate on Thursday, October 4, 2007, at 2:30 p.m., in room 253 of the Russell Senate Office Building.

At this hearing, the Committee will explore the state of the Consumer Product Safety Commission, examine reforms that are necessary to make the agency more effective to protect children and other consumers from dangerous and defective products, and seek comments on S. 2045, the Consumer Product Safety Commission Reform Act of 2007.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Thursday, October 4, 2007, at 2 p.m., in room 215 of the Dirksen Senate Office Building, to consider favorably reporting an original bill entitled, ``The Heartland, Habitat, Harvest, and Horticulture Act of 2007'' and legislation implementing the U.S.-Peru Trade Promotion Agreement.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, October 4, 2007, at 9:30 a.m. to hold a hearing on the Law of the Sea Convention.

Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Thursday, October 4, 2007, at 9:30 a.m. in room 628 of the Dirksen Senate Office Building to conduct an oversight hearing on Backlogs at the Department of the Interior: Land into Trust Applications; Environmental Impact Statements; Probate; and Appraisals and Lease Approvals.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate in order to conduct an Executive Business Meeting on Thursday, October 4, 2007, at 10 a.m. in the Dirksen Senate Office Building room 226.

Agenda

I. Bills: S. 2035, Free Flow of Information Act of 2007 (Specter, Schumer, Lugar, Dodd, Leahy, Graham) and S. 1640, Vessel Hull Design Protection Amendments of 2007 (Leahy, Cornyn, Kohl, Whitehouse).

II. Resolutions: S. Res. 326, Supporting the goals and ideals of a National Day of Remembrance for Murder Victims (Cornyn, Feinstein, Kyl) and H. Con. Res. 193, Recognizing all hunters across the United States for their continued commitment to safety.

III. Nominations: Thomas P. O'Brien to be United States Attorney for the Central District of California.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet during the session of the Senate to conduct a hearing entitled ``Justice Denied? Implementation of

the Hometown Heroes Survivors Benefits Act'' on Thursday, October 4, 2007 at 2:30 p.m. in the Dirksen Senate Office Building room 226.

Mr. President, I ask unanimous consent that the Joint Economic Committee he authorized to conduct a hearing entitled, ``Mass Incarceration in the United States: At What Cost?'', in room 216 of the Hart Senate Office Building, Thursday, October 4, 2007, from 10 a.m. to 1 p.m.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs' Subcommittee on Oversight of Government Managment, the Federal Workforce, and the District of Columbia be authorized to meet during the session of the Senate on Thursday, October 4, 2007, at 2:30 p.m. in order to conduct a hearing entit1ed, ``Forestalling the Coming Pandemic: Infectious Disease Surveillance Overseas.''

Mr. Speaker, I rise today in support of H.R. 6531, the Vessel Hull Design Protection Amendments of 2008. This bill amends the United States Code, in the section relating to the vessel hull design protection, to clarify the definitions of a hull and a deck.

Industrial designs, like other forms of intellectual property, originated in Europe and have a long history. The objective of industrial design protection is similar to other intellectual property protections: promoting the creation of new, unique, and appealing designs for products by granting exclusive economic rights for a limited time. Many countries have established industrial design laws that are separate and distinct from other forms of intellectual property rights. The United States provides protection for industrial designs through design patents, trade redress, copyright and vessel hull design protection.

There have been several efforts to provide a sui generis form of protection for industrial designs at least since the 1976 Copyright Act. However, it was not until 1998 that some limited success in these efforts took the form of the Vessel Hull Design Protection Act. This Act was passed as part of the Digital Millennium Copyright Act. While the scope of protection in the Act was limited to vessel hulls, the act took much of its language and structure from previous legislative proposals establishing a general design right.

The Vessel Hull Design Protection Act grants exclusive rights to the design of an original vessel hull. To be original, a vessel hull design must be a non-trivial variation over prior vessel hulls, which is the result of the designer's creative endeavor and is not copied from another source. The Vessel Hull Design Protection Act does not provide any protection to non-original designs, staple or commonplace designs, and designs dictated solely by utilitarian function. The Vessel Hull Design Protection Act defines a ``hull'' as the frame or body of a vessel, including a deck.

Significantly, H.R. 6531, makes changes to this Act and excludes ``deck'' from the definition of a ``hull''. By H.R. 6531, ``hull'' is simply defined as the exterior frame or body of a vessel, exclusive of the deck, superstructure, masts, sails, yards, rigging, hardware, fixtures, and other attachments. The ``deck'' is defined as the horizontal surface of the vessel that covers the hull.

This refined definition should add more clarity to vessel hull protection. To secure vessel hull design protection, an application for the design must be submitted to the Copyright Office that sets forth the salient features of the design. According to the Copyright Office, applicants generally provided only a minimal description and rely heavily upon references to photographs they provide in their applications to define the designs they want protected. The Copyright Office must then decide whether the application, on its face, appears to be subject to protection. The definitional change provided by H.R. 6531 should simplify this process.

The Copyright Office's review focuses upon on making sure formal requirements are met, such as ensuring that the subject is a vessel and not a car, for instance. The review does not, however, look at the compliance with substantive requirements such as determining whether the design is original.

A registered vessel hull design gives the designer exclusive rights to make, sell, import, or use in trade, vessel hulls embodying the design. Certainly, the definitional change will make it easier to determine the design of the vessel and to ascertain whether any infringement has occurred. An infringing hull design is one that has been copied without the consent of the designer. A vessel hull design will not be considered copied if it is original and not substantially similar in appearance to a protected vessel hull design. When infringement is proven, a vessel hull designer may seek injunctive relief and either damages adequate to compensate for the infringement or the infringer's profits.

Mr. Speaker, I urge my colleagues to support H.R. 6531 because it simplifies the definition of a hull and makes it easier to determine whether there has been infringement.