PIPA 2 by Observatorio de Comunicación PUCV

Calendar No. 70 112TH CONGRESS 1ST SESSION

S. 968

To prevent online threats to economic creativity and theft of intellectual property, and for other purposes.

IN THE SENATE OF THE UNITED STATES MAY 12, 2011 Mr. LEAHY (for himself, Mr. HATCH, Mr. GRASSLEY, Mr. SCHUMER, Mrs. FEINSTEIN, Mr. WHITEHOUSE, Mr. GRAHAM, Mr. KOHL, Mr. COONS, Mr. BLUMENTHAL, Ms. KLOBUCHAR, Mr. FRANKEN, Mr. BLUNT, Mr. ALEXANDER, Mrs. GILLIBRAND, and Mr. RUBIO) introduced the following bill; which was read twice and referred to the Committee on the Judiciary MAY 26, 2011 Reported by Mr. LEAHY, with an amendment [Strike out all after the enacting clause and insert the part printed in italic]

A BILL To prevent online threats to economic creativity and theft of intellectual property, and for other purposes. 1

Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

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SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Preventing Real Online

5 Threats to Economic Creativity and Theft of Intellectual

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2 1 Property Act of 2011’’ or the ‘‘PROTECT IP Act of 2 2011’’. 3

SEC. 2. DEFINITIONS.

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For purposes of this Act—

(1) the term ‘‘domain name’’ has the same

meaning as in section 45 of the Lanham Act (15

U.S.C. 1127);

(2) the term ‘‘domain name system server’’

means a server or other mechanism used to provide

the Internet protocol address associated with a do-

main name;

(3) the term ‘‘financial transaction provider’’

has the same meaning as in section 5362(4) of title

31, United States Code;

(4) the term ‘‘information location tool’’ has the

same meaning as described in subsection (d) of sec-

tion 512 of title 17, United States Code;

(5) the term ‘‘Internet advertising service’’

means a service that for compensation sells, pur-

chases, brokers, serves, inserts, verifies, or clears the

placement of an advertisement, including a paid or

sponsored search result, link, or placement that is

rendered in viewable form for any period of time on

an Internet site;

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(6) the term ‘‘Internet site’’ means the collec-

tion of digital assets, including links, indexes, or

pointers to digital assets, accessible through the

Internet that are addressed relative to a common do-

main name;

6 7

(7) the term ‘‘Internet site dedicated to infringing activities’’ means an Internet site that—

(A) has no significant use other than en-

gaging in, enabling, or facilitating the—

(i) reproduction, distribution, or pub-

lic performance of copyrighted works, in

complete or substantially complete form, in

a manner that constitutes copyright in-

fringement under section 501 of title 17,

United States Code;

(ii) violation of section 1201 of title

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17, United States Code; or

(iii) sale, distribution, or promotion of

goods, services, or materials bearing a

counterfeit mark, as that term is defined

in section 34(d) of the Lanham Act; or

(B) is designed, operated, or marketed by

its operator or persons operating in concert

with the operator, and facts or circumstances

suggest is used, primarily as a means for en-

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gaging in, enabling, or facilitating the activities

described under clauses (i), (ii), or (iii) of sub-

paragraph (A);

(8) the term ‘‘Lanham Act’’ means the Act en-

titled ‘‘An Act to provide for the registration and

protection of trademarks used in commerce, to carry

out the provisions of certain international conven-

tions, and for other purposes’’, approved July 5,

1946 (commonly referred to as the ‘‘Trademark Act

of 1946’’ or the ‘‘Lanham Act’’);

(9) the term ‘‘nondomestic domain name’’

means a domain name for which the domain name

registry that issued the domain name and operates

the relevant top level domain, and the domain name

registrar for the domain name, are not located in the

United States;

(10) the term ‘‘owner’’ or ‘‘operator’’ when

used in connection with an Internet site shall in-

clude, respectively, any owner of a majority interest

in, or any person with authority to operate, such

Internet site; and

(11) the term ‘‘qualifying plaintiff’’ means—

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(A) the Attorney General of the United

States; or

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5 1

(B) an owner of an intellectual property

right, or one authorized to enforce such right,

harmed by the activities of an Internet site

dedicated to infringing activities occurring on

that Internet site.

SEC.

ENHANCING

WEBSITES

OVERSEAS.

OPERATED

AGAINST AND

REGISTERED

(1) IN

PERSONAM.—The

Attorney General may

commence an in personam action against—

(A) a registrant of a nondomestic domain

name used by an Internet site dedicated to in-

fringing activities; or

(B) an owner or operator of an Internet

site dedicated to infringing activities accessed

through a nondomestic domain name.

(2) IN

REM.—If

through due diligence the At-

torney General is unable to find a person described

in subparagraphs (A) or (B) of paragraph (1), or no

such person found has an address within a judicial

district of the United States, the Attorney General

may commence an in rem action against a non-

domestic domain name used by an Internet site dedi-

cated to infringing activities.

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ROGUE

(a) COMMENCEMENT OF AN ACTION.—

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ENFORCEMENT

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(b) ORDERS OF THE COURT.—

(1) IN

application of the Attor-

ney General following the commencement of an ac-

tion under this section, the court may issue a tem-

porary restraining order, a preliminary injunction, or

an injunction, in accordance with rule 65 of the Fed-

eral Rules of Civil Procedure, against the non-

domestic domain name used by an Internet site dedi-

cated to infringing activities, or against a registrant

of such domain name, or the owner or operator of

such Internet site dedicated to infringing activities,

to cease and desist from undertaking any further ac-

tivity as an Internet site dedicated to infringing ac-

tivities, if—

(A) the domain name is used within the

United States to access such Internet site; and

(B) the Internet site—

(i) conducts business directed to resi-

dents of the United States; and

(ii) harms holders of United States in-

tellectual property rights.

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GENERAL.—On

(2) DETERMINATION

BY THE COURT.—For

poses of determining whether an Internet site con-

ducts business directed to residents of the United

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States under paragraph (1)(B)(i), a court may con-

sider, among other indicia, whether—

(A) the Internet site is providing goods or

services described in section 2(7) to users lo-

cated in the United States;

(B) there is evidence that the Internet site

is not intended to provide—

(i) such goods and services to users

located in the United States;

(ii) access to such goods and services

to users located in the United States; and

(iii) delivery of such goods and serv-

ices to users located in the United States;

ures in place to prevent such goods and services

from being accessed from or delivered to the

United States;

(D) the Internet site offers services ob-

tained in the United States; and

(E) any prices for goods and services are

indicated in the currency of the United States.

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(1) IN

GENERAL.—Upon

commencing an action

under this section, the Attorney General shall send

a notice of the alleged violation and intent to pro-

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ceed under this Act to the registrant of the domain

name of the Internet site—

(A) at the postal and e-mail address ap-

pearing in the applicable publicly accessible

database of registrations, if any and to the ex-

tent such addresses are reasonably available;

(B) via the postal and e-mail address of

the registrar, registry, or other domain name

registration authority that registered or as-

signed the domain name, to the extent such ad-

dresses are reasonably available; and

finds necessary, including as may be required

by Rule 4(f) of the Federal Rules of Civil Pro-

cedure.

(2) RULE

purposes of

this section, the actions described in this subsection

shall constitute service of process.

(d) REQUIRED ACTIONS BASED

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OF CONSTRUCTION.—For

COURT OR-

DERS.—

(1) SERVICE.—A Federal law enforcement offi-

cer, with the prior approval of the court, may serve

a copy of a court order issued pursuant to this sec-

tion on similarly situated entities within each class

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described in paragraph (2). Proof of service shall be

filed with the court.

(2)

REASONABLE

served with a copy of an order pursuant to this sub-

section: (A) OPERATORS.—

(i) IN

nonauthoritative

server shall take the least burdensome

technically feasible and reasonable meas-

ures designed to prevent the domain name

described in the order from resolving to

that domain name’s Internet protocol ad-

dress, except that—

GENERAL.—An

domain

operator of a name

system

(I) such operator shall not be re-

quired—

(aa) other than as directed

under this subparagraph, to mod-

ify its network, software, sys-

tems, or facilities;

(bb) to take any measures

with respect to domain name

lookups not performed by its own

domain name server or domain

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being

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MEASURES.—After

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name system servers located out-

side the United States; or

(cc) to continue to prevent

access to a domain name to

which access has been effectively

disable by other means; and

(II) nothing in this subparagraph

shall affect the limitation on the liabil-

ity of such an operator under section

512 of title 17, United States Code.

(ii) TEXT

OF NOTICE.—The

General shall prescribe the text of the no-

tice displayed to users or customers of an

operator taking an action pursuant to this

subparagraph. Such text shall specify that

the action is being taken pursuant to a

court order obtained by the Attorney Gen-

eral.

(B)

FINANCIAL

TRANSACTION

PRO-

VIDERS.—A

take reasonable measures, as expeditiously as

reasonable, designed to prevent, prohibit, or

suspend its service from completing payment

transactions involving customers located within

the United States and the Internet site associ-

financial transaction provider shall

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ated with the domain name set forth in the

order.

An Internet advertising service that contracts

with the Internet site associated with the do-

main name set forth in the order to provide ad-

vertising to or for that site, or which knowingly

serves advertising to or for such site, shall take

technically feasible and reasonable measures, as

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ADVERTISING SERVICES.—

expeditiously as reasonable, designed to—

(i) prevent its service from providing

advertisements to the Internet site associ-

ated with such domain name; or

(ii) cease making available advertise-

ments for that site, or paid or sponsored

search results, links or other placements

that provide access to the domain name.

(D) INFORMATION

LOCATION TOOLS.—An

information location tool shall take technically

feasible and reasonable measures, as expedi-

tiously as possible, to—

(i) remove or disable access to the

Internet site associated with the domain

name set forth in the order; or

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(ii) not serve a hypertext link to such

Internet site.

(3) COMMUNICATION

provided under paragraph (2)(A)(ii), an entity tak-

ing an action described in this subsection shall de-

termine whether and how to communicate such ac-

tion to the entity’s users or customers. (4) RULE

OF CONSTRUCTION.—For

purposes of

an action commenced under this section, the obliga-

tions of an entity described in this subsection shall

be limited to the actions set out in each paragraph

or subparagraph applicable to such entity, and no

order issued pursuant to this section shall impose

any additional obligations on, or require additional

actions by, such entity.

(5) ACTIONS

PURSUANT TO COURT ORDER.—

(A) IMMUNITY

FROM SUIT.—No

cause of

action shall lie in any Federal or State court or

administrative agency against any entity receiv-

ing a court order issued under this subsection,

or against any director, officer, employee, or

agent thereof, for any act reasonably designed

to comply with this subsection or reasonably

arising from such order, other than in an action

pursuant to subsection (e).

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WITH USERS.—Except

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(B) IMMUNITY

tity receiving an order under this subsection,

and any director, officer, employee, or agent

thereof, shall not be liable to any party for any

acts reasonably designed to comply with this

subsection or reasonably arising from such

order, other than in an action pursuant to sub-

section (e), and any actions taken by customers

of such entity to circumvent any restriction on

access to the Internet domain instituted pursu-

ant to this subsection or any act, failure, or in-

ability to restrict access to an Internet domain

that is the subject of a court order issued pur-

suant to this subsection despite good faith ef-

forts to do so by such entity shall not be used

by any person in any claim or cause of action

against such entity, other than in an action

pursuant to subsection (e). (e) ENFORCEMENT OF ORDERS.—

(1) IN

GENERAL.—In

order to compel compli-

ance with this section, the Attorney General may

bring an action for injunctive relief against any

party receiving a court order issued pursuant to this

section that knowingly and willfully fails to comply

with such order.

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en-

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FROM LIABILITY.—Any

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(2) RULE

granted the Attorney General under paragraph (1)

shall be the sole legal remedy for enforcing the obli-

gations under this section of any entity described in

subsection (d).

(3) DEFENSE.—A defendant in an action under

paragraph (1) may establish an affirmative defense

by showing that the defendant does not have the

technical means to comply with the subsection with-

out incurring an unreasonable economic burden, or

that the order is inconsistent with this Act. This

showing shall serve as a defense only to the extent

of such inability to comply or to the extent of such

inconsistency.

(f) MODIFICATION OR VACATION OF ORDERS.— (1) IN

GENERAL.—At

any time after the

issuance of an order under subsection (b), a motion

to modify, suspend, or vacate the order may be filed

by—

(A) any person, or owner or operator of

property, bound by the order;

(B) any registrant of the domain name, or

the owner or operator of the Internet site sub-

ject to the order;

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authority

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OF CONSTRUCTION.—The

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that has registered or assigned the domain

name of the Internet site subject to the order;

(D) any entity that has received a copy of

an order pursuant to subsection (d) requiring

such entity to take action prescribed in that

subsection.

(2) RELIEF.—Relief under this subsection shall

be proper if the court finds that—

(A) the Internet site associated with the

domain name subject to the order is no longer,

or never was, an Internet site dedicated to in-

fringing activities; or

(B) the interests of justice require that the

order be modified, suspended, or vacated.

(3) CONSIDERATION.—In making a relief deter-

mination under paragraph (2), a court may consider

whether the domain name has expired or has been

re-registered by a different party.

(g) RELATED ACTIONS.—The Attorney General, if al-

22 leging that an Internet site previously adjudicated to be

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23 an Internet site dedicated to infringing activities is acces24 sible or has been reconstituted at a different domain 25 name, may commence a related action under this section

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16 1 against the additional domain name in the same judicial 2 district as the previous action. 3

SEC. 4. ELIMINATING THE FINANCIAL INCENTIVE TO STEAL

4 5

INTELLECTUAL PROPERTY ONLINE.

(a) COMMENCEMENT OF AN ACTION.—

6 7

(1) IN

qualifying plaintiff may

commence an in personam action against—

(A) a registrant of a domain name used by

an Internet site dedicated to infringing activi-

ties; or

(B) an owner or operator of an Internet

site dedicated to infringing activities accessed

through a domain name.

(2) IN

REM.—If

through due diligence a quali-

fying plaintiff is unable to find a person described

in subparagraphs (A) or (B) of paragraph (1), or no

such person found has an address within a judicial

district of the United States, the Attorney General

may commence an in rem action against a domain

name used by an Internet site dedicated to infring-

ing activities.

(b) ORDERS OF THE COURT.—

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PERSONAM.—A

(1) IN

GENERAL.—On

application of a quali-

fying plaintiff following the commencement of an ac-

tion under this section, the court may issue a tem-

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porary restraining order, a preliminary injunction, or

an injunction, in accordance with rule 65 of the Fed-

eral Rules of Civil Procedure, against the domain

name used by an Internet site dedicated to infring-

ing activities, or against a registrant of such domain

name, or the owner or operator of such Internet site

dedicated to infringing activities, to cease and desist

from undertaking any further activity as an Internet

site dedicated to infringing activities, if—

(A) the domain name is registered or as-

signed by a domain name registrar or domain

name registry that located or doing business in

the United States; or

(B)(i) the domain name is used within the

United States to access such Internet site; and

(ii) the Internet site—

(I) conducts business directed to resi-

dents of the United States; and

(II) harms holders of United States

intellectual property rights.

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(2) DETERMINATION

BY THE COURT.—For

poses of determining whether an Internet site con-

ducts business directed to residents of the United

States under paragraph (1)(B)(ii)(I), a court may

consider, among other indicia, whether—

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(A) the Internet site is providing goods or

services described in section 2(7) to users lo-

cated in the United States;

(B) there is evidence that the Internet site

is not intended to provide—

(i) such goods and services to users

located in the United States;

(ii) access to such goods and services

to users located in the United States; and

(iii) delivery of such goods and serv-

ices to users located in the United States;

ures in place to prevent such goods and services

from being accessed from or delivered to the

United States;

(D) the Internet site offers services ob-

tained in the United States; and

(E) any prices for goods and services are

indicated in the currency of the United States.

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(1) IN

GENERAL.—Upon

commencing an action

under this section, the qualifying plaintiff shall send

a notice of the alleged violation and intent to pro-

ceed under this Act to the registrant of the domain

name of the Internet site—

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(A) at the postal and e-mail address ap-

pearing in the applicable publicly accessible

database of registrations, if any and to the ex-

tent such addresses are reasonably available;

(B) via the postal and e-mail address of

the registrar, registry, or other domain name

registration authority that registered or as-

signed the domain name, to the extent such ad-

dresses are reasonably available; and

finds necessary, including as may be required

by Rule 4(f) of the Federal Rules of Civil Pro-

cedure.

(2) RULE

purposes of

this section, the actions described in this subsection

shall constitute service of process.

(d) REQUIRED ACTIONS BASED

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OF CONSTRUCTION.—For

COURT OR-

DERS.—

(1) SERVICE.—A qualifying plaintiff, with the

prior approval of the court, may, serve a copy of a

court order issued pursuant to this section on simi-

larly situated entities within each class described in

paragraph (2). Proof of service shall be filed with

the court.

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(2)

MEASURES.—After

served with a copy of an order pursuant to this sub-

section: (A)

FINANCIAL

TRANSACTION

PRO-

VIDERS.—A

take reasonable measures, as expeditiously as

reasonable, designed to prevent, prohibit, or

suspend its service from completing payment

transactions involving customers located within

the United States and the Internet site associ-

ated with the domain name set forth in the

order.

financial transaction provider shall

(B) INTERNET

ADVERTISING SERVICES.—

An Internet advertising service that contracts

with the Internet site associated with the do-

main name set forth in the order to provide ad-

vertising to or for that site, or which knowingly

serves advertising to or for such site, shall take

technically feasible and reasonable measures, as

expeditiously as reasonable, designed to—

(i) prevent its service from providing

advertisements to the Internet site associ-

ated with such domain name; or

(ii) cease making available advertise-

ments for that site, or paid or sponsored

•S 968 RS VerDate Mar 15 2010

being

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REASONABLE

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search results, links, or placements that

provide access to the domain name.

(3) COMMUNICATION

taking an action described in this subsection shall

determine how to communicate such action to the

entity’s users or customers. (4) RULE

OF CONSTRUCTION.—For

purposes of

an action commenced under this section, the obliga-

tions of an entity described in this subsection shall

be limited to the actions set out in each paragraph

or subparagraph applicable to such entity, and no

order issued pursuant to this section shall impose

any additional obligations on, or require additional

actions by, such entity.

(5) ACTIONS

PURSUANT TO COURT ORDER.—

(A) IMMUNITY

FROM SUIT.—No

cause of

action shall lie in any Federal or State court or

administrative agency against any entity receiv-

ing a court order issued under this subsection,

or against any director, officer, employee, or

agent thereof, for any act reasonably designed

to comply with this subsection or reasonably

arising from such order, other than in an action

pursuant to subsection (e).

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entity

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(B) IMMUNITY

tity receiving an order under this subsection,

and any director, officer, employee, or agent

thereof, shall not be liable to any party for any

acts reasonably designed to comply with this

subsection or reasonably arising from such

order, other than in an action pursuant to sub-

section (e), and any actions taken by customers

of such entity to circumvent any restriction on

access to the Internet domain instituted pursu-

ant to this subsection or any act, failure, or in-

ability to restrict access to an Internet domain

that is the subject of a court order issued pur-

suant to this subsection despite good faith ef-

forts to do so by such entity shall not be used

by any person in any claim or cause of action

against such entity, other than in an action

pursuant to subsection (e). (e) ENFORCEMENT OF ORDERS.—

(1) IN

GENERAL.—In

order to compel compli-

ance with this section, the qualifying plaintiff may

bring an action for injunctive relief against any

party receiving a court order issued pursuant to this

section that knowingly and willfully fails to comply

with such order.

•S 968 RS VerDate Mar 15 2010

en-

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FROM LIABILITY.—Any

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23 1

(2) RULE

granted a qualifying plaintiff under paragraph (1)

shall be the sole legal remedy for enforcing the obli-

gations under this section of any entity described in

subsection (d).

(3) DEFENSE.—A defendant in an action com-

menced under paragraph (1) may establish an af-

firmative defense by showing that the defendant

does not have the technical means to comply with

the subsection without incurring an unreasonable

economic burden, or that the order is inconsistent

with this Act. This showing shall serve as a defense

only to the extent of such inability to comply or to

the extent of such inconsistency.

(f) MODIFICATION OR VACATION OF ORDERS.— (1) IN

GENERAL.—At

any time after the

issuance of an order under subsection (b), a motion

to modify, suspend, or vacate the order may be filed

by—

(A) any person, or owner or operator of

property, bound by the order;

(B) any registrant of the domain name, or

the owner or operator of the Internet site sub-

ject to the order;

•S 968 RS VerDate Mar 15 2010

authority

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OF CONSTRUCTION.—The

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24 1

that has registered or assigned the domain

name of the Internet site subject to the order;

(D) any entity that has received a copy of

an order pursuant to subsection (d) requiring

such entity to take action prescribed in that

subsection.

(2) RELIEF.—Relief under this subsection shall

be proper if the court finds that—

(A) the Internet site associated with the

domain name subject to the order is no longer,

or never was, dedicated to infringing activities

as defined in this Act; or

(B) the interests of justice require that the

order be modified, suspended, or vacated.

(3) CONSIDERATION.—In making a relief deter-

mination under paragraph (2), a court may consider

whether the domain name has expired or has been

re-registered by a different party.

(g) RELATED ACTIONS.—A qualifying plaintiff, if al-

22 leging that an Internet site previously adjudicated to be

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23 an Internet site dedicated to infringing activities is acces24 sible or has been reconstituted at a different domain 25 name, may commence a related action under this section

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25 1 against the additional domain name in the same judicial 2 district as the previous action. 3

SEC. 5. VOLUNTARY ACTION AGAINST WEBSITES STEALING

AMERICAN INTELLECTUAL PROPERTY.

(a) IN GENERAL.—No financial transaction provider

6 or Internet advertising service shall be liable for damages 7 to any person for voluntarily taking any action described 8 in section 3(d) or 4(d) with regard to an Internet site if 9 the entity acting in good faith and based on credible evi10 dence has a reasonable belief that the Internet site is an 11 Internet site dedicated to infringing activities. 12 13

(b) INTERNET SITES ENGAGED TIVITIES

INFRINGING AC-

THAT ENDANGER THE PUBLIC HEALTH.—

(1) REFUSAL

OF SERVICE.—A

domain name

registry, domain name registrar, financial trans-

action provider, information location tool, or Inter-

net advertising service, acting in good faith and

based on credible evidence, may stop providing or

refuse to provide services to an infringing Internet

site that endangers the public health.

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(2) IMMUNITY

FROM LIABILITY.—An

scribed in paragraph (1), including its directors, offi-

cers, employees, or agents, that ceases or refused to

provide services under paragraph (1) shall not be

•S 968 RS VerDate Mar 15 2010

entity de-

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26 1

liable to any party under any Federal or State law

for such action.

3 4

(3) DEFINITIONS.—For purposes of this subsection—

(A) the term ‘‘adulterated’’ has the same

meaning as in section 501 of the Federal Food,

Drug, and Cosmetic Act (21 U.S.C. 351);

(B) an ‘‘infringing Internet site that en-

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dangers the public health’’ means—

(i) an Internet site dedicated to in-

fringing activities for which the counterfeit

products that it offers, sells, dispenses, or

distributes are controlled or non-controlled

prescription medication; or

(ii) an Internet site that has no sig-

nificant use other than, or is designed, op-

erated, or marketed by its operator or per-

sons operating in concert with the oper-

ator, and facts or circumstances suggest is

used, primarily as a means for—

(I) offering, selling, dispensing,

or distributing any controlled or non-

controlled

and does so regularly without a valid

prescription; or

prescription

medication,

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27 1

(II) offering, selling, dispensing,

or distributing any controlled or non-

controlled

and does so regularly for medication

that is adulterated or misbranded;

meaning as in section 502 of the Federal Food,

Drug, and Cosmetic Act (21 U.S.C. 352); and

(D) the term ‘‘valid prescription’’ has the

same meaning as in section 309(e)(2)(A) of the

Controlled

829(e)(2)(A)).

Substances

Act

medication,

(21

U.S.C.

SEC. 6. SAVINGS CLAUSES.

14 15

prescription

(a) RULE AND

CONSTRUCTION RELATING

CIVIL

CRIMINAL REMEDIES.—Nothing in this Act shall be

16 construed to limit or expand civil or criminal remedies 17 available to any person (including the United States) for 18 infringing activities on the Internet pursuant to any other 19 Federal or State law. 20 21

(b) RULE OUS OR

CONSTRUCTION RELATING

VICARI-

CONTRIBUTORY LIABILITY.—Nothing in this Act

22 shall be construed to enlarge or diminish vicarious or con-

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23 tributory liability for any cause of action available under 24 title 17, United States Code, including any limitations on 25 liability under section 512 of such title 17, or to create

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28 1 an obligation to take action pursuant to section 5 of this 2 Act. 3

TITLE

4 17.—Nothing in this Act, and no order issued or served 5 pursuant to sections 3 or 4 of this Act, shall serve as a 6 basis for determining the application of section 512 of title 7 17, United States Code. 8

SEC. 7. GUIDELINES AND STUDIES.

(a) GUIDELINES.—The Attorney General shall—

(1) publish procedures developed in consultation

with other relevant law enforcement agencies, includ-

ing the United States Immigration and Customs En-

forcement, to receive information from the public

about Internet sites dedicated to infringing activi-

ties;

(2) provide guidance to intellectual property

rights holders about what information such rights

holders should provide law enforcement agencies to

initiate an investigation pursuant to this Act;

(3) provide guidance to intellectual property

rights holders about how to supplement an ongoing

investigation initiated pursuant to this Act;

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23 24

(4) establish standards for prioritization of actions brought under this Act;

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29 1

(5) provide appropriate resources and proce-

dures for case management and development to af-

fect timely disposition of actions brought under this

Act; and

(6) develop a deconfliction process in consulta-

tion with other law enforcement agencies, including

the United States Immigration and Customs En-

forcement, to coordinate enforcement activities

brought under this Act.

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(b) REPORTS.—

(1) REPORT

ON EFFECTIVENESS OF CERTAIN

MEASURES.—Not

later than 1 year after the date of

enactment of this Act, the Secretary of Commerce,

in coordination with the Attorney General, the Sec-

retary of Homeland Security, and the Intellectual

Property Enforcement Coordinator, shall conduct a

study and report to the Committee on the Judiciary

of the Senate and the Committee on the Judiciary

of the House of Representatives on the following:

(A) An assessment of the effects, if any, of

the implementation of section 3(d)(2)(A) on the

accessibility of Internet sites dedicated to in-

fringing activity.

(B) An assessment of the effects, if any, of

the implementation of section 3(d)(2)(A) on the

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30 1

deployment, security, and reliability of the do-

main name system and associated Internet

processes, including Domain Name System Se-

curity Extensions.

fying or amending this Act to increase effective-

ness or ameliorate any unintended effects of

section 3(d)(2)(A).

(2) REPORT

The Register of Copyrights shall, in consultation

with the appropriate departments and agencies of

the United States and other stakeholders—

(A) conduct a study on—

(i) the enforcement and effectiveness

of this Act; and

(ii) the need to modify or amend this

Act to apply to emerging technologies; and

(B) not later than 2 years after the date

of enactment of this Act, submit a report to the

Committee on the Judiciary of the Senate and

the Committee on the Judiciary of the House of

Representatives on—

23 rfrederick on DSKD9S0YB1PROD with BILLS

ON OVERALL EFFECTIVENESS.—

(i) the results of the study conducted

under subparagraph (A); and

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31 1

(ii) any recommendations that the

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Preventing Real Online

5 Threats to Economic Creativity and Theft of Intellectual 6 Property Act of 2011’’ or the ‘‘PROTECT IP Act of 2011’’. 7

SEC. 2. DEFINITIONS.

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For purposes of this Act—

(1) the term ‘‘domain name’’ has the same mean-

ing as in section 45 of the Lanham Act (15 U.S.C.

1127);

(2) the term ‘‘domain name system server’’

means a server or other mechanism used to provide

the Internet protocol address associated with a do-

main name;

(3) the term ‘‘financial transaction provider’’

has the same meaning as in section 5362(4) of title

31, United States Code;

(4) the term ‘‘information location tool’’ has the

same meaning as described in subsection (d) of sec-

tion 512 of title 17, United States Code;

(5) the term ‘‘Internet advertising service’’

means a service that for compensation sells, pur-

chases, brokers, serves, inserts, verifies, or clears the

placement of an advertisement, including a paid or

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32 1

sponsored search result, link, or placement that is

rendered in viewable form for any period of time on

an Internet site;

(6) the term ‘‘Internet site’’ means the collection

of digital assets, including links, indexes, or pointers

to digital assets, accessible through the Internet that

are addressed relative to a common domain name;

8 9

(7) the term ‘‘Internet site dedicated to infringing activities’’ means an Internet site that—

(A) has no significant use other than engag-

ing in, enabling, or facilitating the—

(i) reproduction, distribution, or public

performance of copyrighted works, in com-

plete or substantially complete form, in a

manner that constitutes copyright infringe-

ment under section 501 of title 17, United

States Code;

(ii) violation of section 1201 of title

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17, United States Code; or

(iii) sale, distribution, or promotion of

goods, services, or materials bearing a coun-

terfeit mark, as that term is defined in sec-

tion 34(d) of the Lanham Act; or

(B) is designed, operated, or marketed by its

operator or persons operating in concert with the

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33 1

operator, and facts or circumstances suggest is

used, primarily as a means for engaging in, ena-

bling, or facilitating the activities described

under clauses (i), (ii), or (iii) of subparagraph

(A);

(8) the term ‘‘Lanham Act’’ means the Act enti-

tled ‘‘An Act to provide for the registration and pro-

tection of trademarks used in commerce, to carry out

the provisions of certain international conventions,

and for other purposes’’, approved July 5, 1946 (com-

monly referred to as the ‘‘Trademark Act of 1946’’ or

the ‘‘Lanham Act’’);

(9) the term ‘‘nondomestic domain name’’ means

a domain name for which the domain name registry

that issued the domain name and operates the rel-

evant top level domain, and the domain name reg-

istrar for the domain name, are not located in the

United States;

(10) the term ‘‘owner’’ or ‘‘operator’’ when used

in connection with an Internet site shall include, re-

spectively, any owner of a majority interest in, or

any person with authority to operate, such Internet

site; and

(11) the term ‘‘qualifying plaintiff’’ means—

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34 1

(A) the Attorney General of the United

States; or

(B) an owner of an intellectual property

right, or one authorized to enforce such right,

harmed by the activities of an Internet site dedi-

cated to infringing activities occurring on that

Internet site.

SEC.

ENHANCING

WEBSITES

10 11

AND

REGISTERED

(1) IN

PERSONAM.—The

Attorney General may

commence an in personam action against—

(A) a registrant of a nondomestic domain

name used by an Internet site dedicated to in-

fringing activities; or (B) an owner or operator of an Internet site

dedicated

through a nondomestic domain name.

(2) IN

infringing

REM.—If

activities

accessed

through due diligence the Attor-

ney General is unable to find a person described in

subparagraphs (A) or (B) of paragraph (1), or no

such person found has an address within a judicial

district of the United States, the Attorney General

may commence an in rem action against a non-

•S 968 RS VerDate Mar 15 2010

ROGUE

(a) COMMENCEMENT OF AN ACTION.—

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OPERATED

AGAINST

OVERSEAS.

12 13

ENFORCEMENT

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35 1

domestic domain name used by an Internet site dedi-

cated to infringing activities.

(3) IDENTIFICATION

commenced by the Attorney General under this sec-

tion shall identify the entities which may be required

to take actions pursuant to subsection (d) if an order

issues pursuant to subsection (b).

(b) ORDERS OF THE COURT.— (1) IN

GENERAL.—On

application of the Attor-

ney General following the commencement of an action

under this section, the court may issue a temporary

restraining order, a preliminary injunction, or an in-

junction, in accordance with rule 65 of the Federal

Rules of Civil Procedure, against the nondomestic do-

main name used by an Internet site dedicated to in-

fringing activities, or against a registrant of such do-

main name, or the owner or operator of such Internet

site dedicated to infringing activities, to cease and de-

sist from undertaking any further activity as an

Internet site dedicated to infringing activities, if—

(A) the domain name is used within the

United States to access such Internet site; and

(B) the Internet site—

(i) conducts business directed to resi-

dents of the United States; and

•S 968 RS VerDate Mar 15 2010

action

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OF ENTITIES.—Any

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36 1

(ii) harms holders of United States in-

tellectual property rights.

(2) DETERMINATION

poses of determining whether an Internet site con-

ducts business directed to residents of the United

States under paragraph (1)(B)(i), a court may con-

sider, among other indicia, whether—

(A) the Internet site is providing goods or

services described in section 2(7) to users located in the United States;

(B) there is evidence that the Internet site

is not intended to provide—

(i) such goods and services to users lo-

cated in the United States;

(ii) access to such goods and services to

users located in the United States; and

(iii) delivery of such goods and services

to users located in the United States;

ures in place to prevent such goods and services

from being accessed from or delivered to the

United States;

(D) the Internet site offers services obtained

in the United States; and

•S 968 RS VerDate Mar 15 2010

pur-

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BY THE COURT.—For

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37 1

(E) any prices for goods and services are

indicated in the currency of the United States.

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(1) IN

GENERAL.—Upon

commencing an action

under this section, the Attorney General shall send a

notice of the alleged violation and intent to proceed

under this Act to the registrant of the domain name

of the Internet site—

(A) at the postal and e-mail address ap-

pearing in the applicable publicly accessible

database of registrations, if any and to the ex-

tent such addresses are reasonably available;

(B) via the postal and e-mail address of the

registrar, registry, or other domain name reg-

istration authority that registered or assigned

the domain name, to the extent such addresses

are reasonably available; and

finds necessary, including as may be required by

Rule 4(f) of the Federal Rules of Civil Procedure.

(2) RULE

OF CONSTRUCTION.—For

purposes of

this section, the actions described in this subsection

shall constitute service of process.

24 25

(3) OTHER

NOTICE.—Upon

commencing an ac-

tion under this section, the Attorney General shall

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38 1

also provide notice to entities identified in the com-

plaint, or any amendments thereto, which may be re-

quired to take action pursuant to subsection (d).

(d) REQUIRED ACTIONS BASED

COURT ORDERS.—

(1) SERVICE.—A Federal law enforcement offi-

cer, with the prior approval of the court, may serve

a copy of a court order issued pursuant to this section

on similarly situated entities within each class de-

scribed in paragraph (2), which have been identified

in the complaint, or any amendments thereto, pursu-

ant to subsection (a). Proof of service shall be filed

with the court.

13 14

(2) REASONABLE

MEASURES.—After

being served

with a copy of an order pursuant to this subsection:

(A) OPERATORS.—

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(i) IN

GENERAL.—An

operator of a

nonauthoritative domain name system serv-

er shall take the least burdensome tech-

nically feasible and reasonable measures de-

signed to prevent the domain name de-

scribed in the order from resolving to that

domain name’s Internet protocol address,

except that—

(I) such operator shall not be re-

quired—

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39 1

(aa) other than as directed

under this subparagraph, to mod-

ify its network, software, systems,

or facilities;

(bb) to take any measures

with respect to domain name

lookups not performed by its own

domain name server or domain

name system servers located out-

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side the United States; or

(cc) to continue to prevent

access to a domain name to which

access has been effectively disable

by other means; and

(II) nothing in this subparagraph

shall affect the limitation on the liabil-

ity of such an operator under section

512 of title 17, United States Code.

(ii) TEXT

OF NOTICE.â&#x20AC;&#x201D;The

General shall prescribe the text of the notice

displayed to users or customers of an oper-

ator taking an action pursuant to this sub-

paragraph. Such text shall specify that the

action is being taken pursuant to a court

order obtained by the Attorney General.

â&#x20AC;˘S 968 RS VerDate Mar 15 2010

Attorney

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40 1

(B) FINANCIAL

A financial transaction provider shall take rea-

sonable measures, as expeditiously as reasonable,

designed to prevent, prohibit, or suspend its serv-

ice from completing payment transactions in-

volving customers located within the United

States and the Internet site associated with the

domain name set forth in the order.

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TRANSACTION PROVIDERS.—

ADVERTISING SERVICES.—An

Internet advertising service that contracts with

the Internet site associated with the domain

name set forth in the order to provide adver-

tising to or for that site, or which knowingly

serves advertising to or for such site, shall take

technically feasible and reasonable measures, as

expeditiously as reasonable, designed to—

(i) prevent its service from providing

advertisements to the Internet site associ-

ated with such domain name; or

(ii) cease making available advertise-

ments for that site, or paid or sponsored

search results, links or other placements

that provide access to the domain name.

(D) INFORMATION

LOCATION TOOLS.—An

service provider of an information location tool

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41 1

shall take technically feasible and reasonable

measures, as expeditiously as possible, to—

(i) remove or disable access to the

Internet site associated with the domain

name set forth in the order; or

(ii) not serve a hypertext link to such

Internet site.

(3) COMMUNICATION

provided under paragraph (2)(A)(ii), an entity tak-

ing an action described in this subsection shall deter-

mine whether and how to communicate such action to

the entity’s users or customers. (4) RULE

OF CONSTRUCTION.—For

purposes of

an action commenced under this section, the obliga-

tions of an entity described in this subsection shall be

limited to the actions set out in each paragraph or

subparagraph applicable to such entity, and no order

issued pursuant to this section shall impose any addi-

tional obligations on, or require additional actions

by, such entity.

(5) ACTIONS

PURSUANT TO COURT ORDER.—

(A) IMMUNITY

FROM SUIT.—No

cause of ac-

tion shall lie in any Federal or State court or

administrative agency against any entity receiv-

ing a court order issued under this subsection, or

•S 968 RS VerDate Mar 15 2010

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WITH USERS.—Except

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42 1

against any director, officer, employee, or agent

thereof, for any act reasonably designed to com-

ply with this subsection or reasonably arising

from such order, other than in an action pursu-

ant to subsection (e).

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(B) IMMUNITY

FROM LIABILITY.—Any

ty receiving an order under this subsection, and

any director, officer, employee, or agent thereof,

shall not be liable to any party for any acts rea-

sonably designed to comply with this subsection

or reasonably arising from such order, other

than in an action pursuant to subsection (e),

and any actions taken by customers of such enti-

ty to circumvent any restriction on access to the

Internet domain instituted pursuant to this sub-

section or any act, failure, or inability to restrict

access to an Internet domain that is the subject

of a court order issued pursuant to this sub-

section despite good faith efforts to do so by such

entity shall not be used by any person in any

claim or cause of action against such entity,

other than in an action pursuant to subsection

(e).

(e) ENFORCEMENT OF ORDERS.—

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(1) IN

order to compel compliance

with this section, the Attorney General may bring an

action for injunctive relief against any party receiv-

ing a court order issued pursuant to this section that

knowingly and willfully fails to comply with such

order.

(2) RULE

OF CONSTRUCTION.—The

granted the Attorney General under paragraph (1)

shall be the sole legal remedy for enforcing the obliga-

tions under this section of any entity described in

subsection (d).

(3) DEFENSE.—A defendant in an action under

paragraph (1) may establish an affirmative defense

by showing that the defendant does not have the tech-

nical means to comply with the subsection without in-

curring an unreasonable economic burden, or that the

order is inconsistent with this Act. This showing shall

serve as a defense only to the extent of such inability

to comply or to the extent of such inconsistency.

(f) MODIFICATION OR VACATION OF ORDERS.— (1) IN

GENERAL.—At

any time after the issuance

of an order under subsection (b), a motion to modify,

suspend, or vacate the order may be filed by—

(A) any person, or owner or operator of

property, bound by the order;

•S 968 RS VerDate Mar 15 2010

authority

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GENERAL.—In

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44 1

(B) any registrant of the domain name, or

the owner or operator of the Internet site subject

to the order;

that has registered or assigned the domain name

of the Internet site subject to the order; or

(D) any entity that has received a copy of

an order pursuant to subsection (d) requiring

such entity to take action prescribed in that sub-

section.

(2) RELIEF.—Relief under this subsection shall

be proper if the court finds that—

(A) the Internet site associated with the do-

main name subject to the order is no longer, or

never was, an Internet site dedicated to infring-

ing activities; or

rfrederick on DSKD9S0YB1PROD with BILLS

(B) the interests of justice require that the

order be modified, suspended, or vacated.

(3) CONSIDERATION.—In making a relief deter-

mination under paragraph (2), a court may consider

whether the domain name has expired or has been re-

registered by a different party.

(4) INTERVENTION.—An entity identified pursu-

ant to subsection (a) as an entity which may be re-

quired to take action pursuant to subsection (d) if an

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45 1

order issues pursuant to subsection (b) may intervene

at any time in any action commenced under sub-

section (a), or in any action to modify, suspend, or

vacate an order pursuant to this subsection. Failure

to intervene in an action does not prohibit an entity

notified of the action from subsequently seeking an

order to modify, suspend, or terminate an order

issued by the court under this Act.

(g) RELATED ACTIONS.—The Attorney General, if al-

10 leging that an Internet site previously adjudicated to be an 11 Internet site dedicated to infringing activities is accessible 12 or has been reconstituted at a different domain name, may 13 commence a related action under this section against the 14 additional domain name in the same judicial district as 15 the previous action. 16

SEC. 4. ELIMINATING THE FINANCIAL INCENTIVE TO STEAL

17 18

INTELLECTUAL PROPERTY ONLINE.

(a) COMMENCEMENT OF AN ACTION.—

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(1) IN

PERSONAM.—A

qualifying plaintiff may

commence an in personam action against—

(A) a registrant of a domain name used by

an Internet site dedicated to infringing activi-

ties; or

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46 1

(B) an owner or operator of an Internet site

dedicated

through a domain name.

(2) IN

infringing

REM.—If

activities

through due diligence a quali-

fying plaintiff is unable to find a person described in

subparagraphs (A) or (B) of paragraph (1), or no

such person found has an address within a judicial

district of the United States, the qualifying plaintiff

may commence an in rem action against a domain

name used by an Internet site dedicated to infringing

activities. (3) IDENTIFICATION

OF ENTITIES.—Any

action

commenced by a qualifying plaintiff under this sec-

tion shall identify the entities which may be required

to take actions pursuant to subsection (d) if an order

issues pursuant to subsection (b).

(b) ORDERS OF THE COURT.—

(1) IN

GENERAL.—On

application of a quali-

fying plaintiff following the commencement of an ac-

tion under this section, the court may issue a tem-

porary restraining order, a preliminary injunction,

or an injunction, in accordance with rule 65 of the

Federal Rules of Civil Procedure, against the domain

name used by an Internet site dedicated to infringing

activities, or against a registrant of such domain

•S 968 RS VerDate Mar 15 2010

accessed

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47 1

name, or the owner or operator of such Internet site

dedicated to infringing activities, to cease and desist

from undertaking any further activity as an Internet

site dedicated to infringing activities, if—

(A) the domain name is registered or as-

signed by a domain name registrar or domain

name registry that located or doing business in

the United States; or

(B)(i) the domain name is used within the

United States to access such Internet site; and

(ii) the Internet site—

(I) conducts business directed to resi-

dents of the United States; and

(II) harms holders of United States in-

tellectual property rights.

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(2) DETERMINATION

BY THE COURT.—For

poses of determining whether an Internet site con-

ducts business directed to residents of the United

States under paragraph (1)(B)(ii)(I), a court may

consider, among other indicia, whether—

(A) the Internet site is providing goods or

services described in section 2(7) to users located

in the United States;

(B) there is evidence that the Internet site

is not intended to provide—

•S 968 RS VerDate Mar 15 2010

pur-

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48 1

(i) such goods and services to users lo-

cated in the United States;

(ii) access to such goods and services to

users located in the United States; and

(iii) delivery of such goods and services

to users located in the United States;

ures in place to prevent such goods and services

from being accessed from or delivered to the

United States;

(D) the Internet site offers services obtained

in the United States; and

(E) any prices for goods and services are

indicated in the currency of the United States.

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(1) IN

GENERAL.—Upon

commencing an action

under this section, the qualifying plaintiff shall send

a notice of the alleged violation and intent to proceed

under this Act to the registrant of the domain name

of the Internet site—

(A) at the postal and e-mail address ap-

pearing in the applicable publicly accessible

database of registrations, if any and to the ex-

tent such addresses are reasonably available;

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49 1

(B) via the postal and e-mail address of the

registrar, registry, or other domain name reg-

istration authority that registered or assigned

the domain name, to the extent such addresses

are reasonably available; and

finds necessary, including as may be required by

Rule 4(f) of the Federal Rules of Civil Procedure.

(2) RULE

purposes of

this section, the actions described in this subsection

shall constitute service of process.

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OF CONSTRUCTION.—For

(3) OTHER

NOTICE.—Upon

commencing an ac-

tion under this section, the qualifying plaintiff shall

also provide notice to entities identified in the com-

plaint, or any amendments thereto, which may be re-

quired to take action pursuant to subsection (d).

(d) REQUIRED ACTIONS BASED

COURT ORDERS.—

(1) SERVICE.—A qualifying plaintiff, with the

prior approval of the court, may, serve a copy of a

court order issued pursuant to this section on simi-

larly situated entities within each class described in

paragraph (2), which have been identified in the com-

plaint, or any amendments thereto, pursuant to sub-

section (a). Proof of service shall be filed with the

court.

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50 1 2

(2) REASONABLE

being served

with a copy of an order pursuant to this subsection:

(A) FINANCIAL

TRANSACTION PROVIDERS.—

A financial transaction provider shall take rea-

sonable measures, as expeditiously as reasonable,

designed to prevent, prohibit, or suspend its serv-

ice from completing payment transactions in-

volving customers located within the United

States and the Internet site associated with the

domain name set forth in the order.

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MEASURES.—After

(B) INTERNET

ADVERTISING SERVICES.—An

Internet advertising service that contracts with

the Internet site associated with the domain

name set forth in the order to provide adver-

tising to or for that site, or which knowingly

serves advertising to or for such site, shall take

technically feasible and reasonable measures, as

expeditiously as reasonable, designed to—

(i) prevent its service from providing

advertisements to the Internet site associ-

ated with such domain name; or

(ii) cease making available advertise-

ments for that site, or paid or sponsored

search results, links, or placements that pro-

vide access to the domain name.

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51 1

(3) COMMUNICATION

taking an action described in this subsection shall de-

termine how to communicate such action to the enti-

ty’s users or customers. (4) RULE

OF CONSTRUCTION.—For

purposes of

an action commenced under this section, the obliga-

tions of an entity described in this subsection shall be

limited to the actions set out in each paragraph or

subparagraph applicable to such entity, and no order

issued pursuant to this section shall impose any addi-

tional obligations on, or require additional actions

by, such entity.

(5) ACTIONS

PURSUANT TO COURT ORDER.—

(A) IMMUNITY

FROM SUIT.—No

cause of ac-

tion shall lie in any Federal or State court or

administrative agency against any entity receiv-

ing a court order issued under this subsection, or

against any director, officer, employee, or agent

thereof, for any act reasonably designed to com-

ply with this subsection or reasonably arising

from such order, other than in an action pursu-

ant to subsection (e).

(B) IMMUNITY

FROM LIABILITY.—Any

enti-

ty receiving an order under this subsection, and

any director, officer, employee, or agent thereof,

•S 968 RS VerDate Mar 15 2010

entity

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WITH USERS.—An

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52 1

shall not be liable to any party for any acts rea-

sonably designed to comply with this subsection

or reasonably arising from such order, other

than in an action pursuant to subsection (e),

and any actions taken by customers of such enti-

ty to circumvent any restriction on access to the

Internet domain instituted pursuant to this sub-

section or any act, failure, or inability to restrict

access to an Internet domain that is the subject

of a court order issued pursuant to this sub-

section despite good faith efforts to do so by such

entity shall not be used by any person in any

claim or cause of action against such entity,

other than in an action pursuant to subsection

(e).

(e) ENFORCEMENT OF ORDERS.—

(1) IN

order to compel compliance

with this section, the qualifying plaintiff may bring

an action for injunctive relief against any party re-

ceiving a court order issued pursuant to this section

that knowingly and willfully fails to comply with

such order.

23 rfrederick on DSKD9S0YB1PROD with BILLS

GENERAL.—In

(2) RULE

OF CONSTRUCTION.—The

granted a qualifying plaintiff under paragraph (1)

shall be the sole legal remedy for enforcing the obliga-

•S 968 RS VerDate Mar 15 2010

authority

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53 1

tions under this section of any entity described in

subsection (d).

(3) DEFENSE.—A defendant in an action com-

menced under paragraph (1) may establish an af-

firmative defense by showing that the defendant does

not have the technical means to comply with the sub-

section without incurring an unreasonable economic

burden, or that the order is inconsistent with this Act.

This showing shall serve as a defense only to the ex-

tent of such inability to comply or to the extent of

such inconsistency.

(f) MODIFICATION OR VACATION OF ORDERS.—

(1) IN

any time after the issuance

of an order under subsection (b), a motion to modify,

suspend, or vacate the order may be filed by—

(A) any person, or owner or operator of

rfrederick on DSKD9S0YB1PROD with BILLS

GENERAL.—At

property, bound by the order;

(B) any registrant of the domain name, or

the owner or operator of the Internet site subject

to the order;

that has registered or assigned the domain name

of the Internet site subject to the order; or

(D) any entity that has received a copy of

an order pursuant to subsection (d) requiring

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54 1

such entity to take action prescribed in that sub-

section.

(2) RELIEF.—Relief under this subsection shall

be proper if the court finds that—

(A) the Internet site associated with the do-

main name subject to the order is no longer, or

never was, dedicated to infringing activities as

defined in this Act; or

rfrederick on DSKD9S0YB1PROD with BILLS

(B) the interests of justice require that the

order be modified, suspended, or vacated.

(3) CONSIDERATION.—In making a relief deter-

mination under paragraph (2), a court may consider

whether the domain name has expired or has been re-

registered by a different party.

(4) INTERVENTION.—An entity identified pursu-

ant to subsection (a) as an entity which may be re-

quired to take action pursuant to subsection (d) if an

order issues pursuant to subsection (b) may intervene

at any time in any action commenced under sub-

section (a), or in any action to modify, suspend, or

vacate an order pursuant to this subsection. Failure

to intervene in an action does not prohibit an entity

notified of the action from subsequently seeking an

order to modify, suspend, or terminate an order

issued by the court under this Act.

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55 1

(g) RELATED ACTIONS.—A qualifying plaintiff, if al-

2 leging that an Internet site previously adjudicated to be an 3 Internet site dedicated to infringing activities is accessible 4 or has been reconstituted at a different domain name, may 5 commence a related action under this section against the 6 additional domain name in the same judicial district as 7 the previous action. 8

SEC. 5. VOLUNTARY ACTION AGAINST WEBSITES STEALING

AMERICAN INTELLECTUAL PROPERTY.

(a) IN GENERAL.—No financial transaction provider

11 or Internet advertising service shall be liable for damages 12 to any person for voluntarily taking any action described 13 in section 3(d) or 4(d) with regard to an Internet site if 14 the entity acting in good faith and based on credible evi15 dence has a reasonable belief that the Internet site is an 16 Internet site dedicated to infringing activities. 17 18

(b) INTERNET SITES ENGAGED TIES

(1) REFUSAL

OF SERVICE.—A

domain name reg-

istry, domain name registrar, financial transaction

provider, information location tool, or Internet adver-

tising service, acting in good faith and based on cred-

ible evidence, may stop providing or refuse to provide

services to an infringing Internet site that endangers

the public health.

•S 968 RS VerDate Mar 15 2010

ACTIVI-

THAT ENDANGER THE PUBLIC HEALTH.—

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IN INFRINGING

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56 1

(2) IMMUNITY

scribed in paragraph (1), including its directors, offi-

cers, employees, or agents, that ceases or refused to

provide services under paragraph (1) shall not be lia-

ble to any party under any Federal or State law for

such action.

(3) DEFINITIONS.—For purposes of this subsection—

(A) the term ‘‘adulterated’’ has the same

meaning as in section 501 of the Federal Food,

Drug, and Cosmetic Act (21 U.S.C. 351);

(B) an ‘‘infringing Internet site that endan-

gers the public health’’ means—

(i) an Internet site dedicated to in-

fringing activities for which the counterfeit

products that it offers, sells, dispenses, or

distributes are controlled or non-controlled

prescription medication; or

(ii) an Internet site that has no sig-

nificant use other than, or is designed, oper-

ated, or marketed by its operator or persons

operating in concert with the operator, and

facts or circumstances suggest is used, pri-

marily as a means for—

•S 968 RS VerDate Mar 15 2010

entity de-

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FROM LIABILITY.—An

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57 1

(I) offering, selling, dispensing, or

distributing any controlled or non-con-

trolled prescription medication, and

does so regularly without a valid pre-

scription; or

(II) offering, selling, dispensing,

or distributing any controlled or non-

controlled prescription medication, and

does so regularly for medication that is

adulterated or misbranded;

meaning as in section 502 of the Federal Food,

Drug, and Cosmetic Act (21 U.S.C. 352); and

(D) the term ‘‘valid prescription’’ has the

same meaning as in section 309(e)(2)(A) of the

Controlled

829(e)(2)(A)).

Substances

Act

(21

U.S.C.

SEC. 6. SAVINGS CLAUSES.

(a) RULE

CONSTRUCTION RELATING

CIVIL

AND

20 CRIMINAL REMEDIES.—Nothing in this Act shall be con21 strued to limit or expand civil or criminal remedies avail22 able to any person (including the United States) for in-

rfrederick on DSKD9S0YB1PROD with BILLS

23 fringing activities on the Internet pursuant to any other 24 Federal or State law.

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58 1 2

(b) RULE OR

CONSTRUCTION RELATING

VICARIOUS

CONTRIBUTORY LIABILITY.—Nothing in this Act shall

3 be construed to enlarge or diminish vicarious or contribu4 tory liability for any cause of action available under the 5 Lanham Act or title 17, United States Code, including any 6 limitations on liability under section 512 of such title 17, 7 or to create an obligation to take action pursuant to section 8 5 of this Act. 9

10 Nothing in this Act, no identification of entities in section 11 3(a) or 4(a), no notice provided pursuant to section 3(c) 12 or 4(c), no order issued pursuant to sections 3(b) or 4(b), 13 and no order issued or served pursuant to sections 3(d) or 14 4(d), shall serve as a basis for determining the application 15 of section 512 of title 17, United States Code. 16

SEC. 7. GUIDELINES AND STUDIES.

rfrederick on DSKD9S0YB1PROD with BILLS

(a) GUIDELINES.—The Attorney General shall—

(1) publish procedures developed in consultation

with other relevant law enforcement agencies, includ-

ing the United States Immigration and Customs En-

forcement, to receive information from the public

about Internet sites dedicated to infringing activities;

and

(2) develop a deconfliction process in consulta-

tion with other law enforcement agencies, including

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59 1

the United States Immigration and Customs Enforce-

ment, to coordinate enforcement activities brought

under this Act.

(b) REPORTS.—

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(1) REPORT

ON EFFECTIVENESS OF CERTAIN

MEASURES.—Not

enactment of this Act, the Secretary of Commerce, in

coordination with the Attorney General, the Secretary

of Homeland Security, and the Intellectual Property

Enforcement Coordinator, shall conduct a study and

report to the Committee on the Judiciary of the Sen-

ate and the Committee on the Judiciary of the House

of Representatives on the following:

later than 1 year after the date of

(A) An assessment of the effects, if any, of

the implementation of section 3(d)(2)(A) on the

accessibility of Internet sites dedicated to in-

fringing activity.

(B) An assessment of the effects, if any, of

the implementation of section 3(d)(2)(A) on the

deployment, security, and reliability of the do-

main name system and associated Internet proc-

esses, including Domain Name System Security

Extensions.

or amending this Act to increase effectiveness or

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60 1

ameliorate any unintended effects of section

3(d)(2)(A).

(2) REPORT

appropriate departments and agencies of the United

States and other stakeholders—

(A) conduct a study on—

(i) the enforcement and effectiveness of

this Act;

(ii) the burden of carrying out the re-

quirements of this Act, if any, on inter-

mediaries;

(iii) the need for cost reimbursement

for intermediaries for carrying out the re-

quirements of this Act; and

(iv) the need to modify or amend this

Act to apply to emerging technologies; and

(B) not later than 2 years after the date of

enactment of this Act, submit a report to the

Committee on the Judiciary of the Senate and

the Committee on the Judiciary of the House of

Representatives on—

23 rfrederick on DSKD9S0YB1PROD with BILLS

ON OVERALL EFFECTIVENESS.—The

(i) the results of the study conducted

under subparagraph (A); and

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61 1

(ii) any recommendations that the

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(3) ANNUAL

OVERSIGHT

REPORT.窶年ot

than 1 year after the date of enactment of this Act,

and each year thereafter, the Attorney General shall

report to the Committee on the Judiciary of the Sen-

ate and the Committee on the Judiciary of the House

of Representatives the following information with re-

spect to the preceding year:

(A) Each instance in which an action was

commenced under section 3(a)(1) or 3(a)(2), and

each instance in which an action was com-

menced by the Attorney General under section

4(a)(1) or 4(a)(2), including the name of any

party against whom the action was brought.

(B) Each instance in which a temporary re-

straining order, preliminary injunction or in-

junction was issued pursuant to section 3(b)(1),

and each instance in which a temporary re-

straining order, preliminary injunction or in-

junction was issued pursuant to section 4(b)(1)

in an action commenced by the Attorney Gen-

eral, including the name of any party against

whom the order or injunction was issued.

窶｢S 968 RS VerDate Mar 15 2010

later

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62 1

menced under section 3(a)(1) or 3(a)(2), or an

action commenced by the Attorney General under

section 4(a)(1) or 4(a)(2), was concluded without

the issuance of a temporary restraining order,

preliminary injunction or injunction, including

the reason for the conclusion of the action.

(D) Each proof of service filed with the

court pursuant to section 3(d)(1), or filed pursu-

ant to section 4(d)(1) in an action commenced

by the Attorney General.

(E) Each action for injunctive relief

brought pursuant to section 3(e), or brought pur-

suant to section 4(e) in an action commenced by

the Attorney General, including the name of any

party against whom the action for relief was

brought.

(F) Each motion granted by a court to

modify, suspend or vacate an order that was

filed under section 3(f)(1), or filed under section

4(f)(1) in an action commenced by the Attorney

General, including the relief obtained.

(G) Each related action commenced pursu-

ant to section 3(g), or commenced by the Attor-

ney General pursuant to section 4(g), including

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63 1

the name of any party against whom an action

was commenced.

(4) GAO

REPORT ON PRIVATE ACTIONS.—Not

later than 1 year after the date of enactment of this

Act, and each year thereafter, the Comptroller General

shall report to the Committee on the Judiciary of the

Senate and the Committee on the Judiciary of the

House of Representative each instance in the previous

year in which an action was commenced under sec-

tions 4(a)(1) or 4(a)(2) by a qualifying plaintiff that

is not the Attorney General, including the names of

any parties to each such action.

SEC. 8. PREVENTING THE IMPORTATION OF COUNTERFEIT

14 15

PRODUCTS AND INFRINGING DEVICES.

Notwithstanding section 1905 of title 18, United States

rfrederick on DSKD9S0YB1PROD with BILLS

16 Code— 17

(1) if United States Customs and Border Protec-

tion suspects a product of being imported or exported

in violation of section 42 of the Lanham Act, and

subject to any applicable bonding requirements, the

Secretary of Homeland Security is authorized to

share information on, and unredacted samples of,

products and their packaging and labels, or photos of

such products, packaging and labels, with the

rightholders of the trademark suspected of being cop-

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00:29 May 27, 2011

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64 1

ied or simulated, for purposes of determining whether

the products are prohibited from importation pursu-

ant to such section; and

(2) upon seizure of material by United States

Customs and Border Protection imported in violation

of subsection (a)(2) or subsection (b) of section 1201

of title 17, United States Code, the Secretary of

Homeland Security is authorized to share informa-

tion about, and provide samples to affected parties,

subject to any applicable bonding requirements, as to

the seizure of material designed to circumvent techno-

logical measures or protection afforded by a techno-

logical measure that controls access to or protects the

ownerâ&#x20AC;&#x2122;s work protected by copyright under such title.

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S968

Calendar No. 70

S. 968

A BILL

112TH CONGRESS 1ST SESSION

To prevent online threats to economic creativity and theft of intellectual property, and for other purposes.

S968

rfrederick on DSKD9S0YB1PROD with BILLS

Reported with an amendment

MAY 26, 2011

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