[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3804 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3804

         To combat online infringement, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 20, 2010

 Mr. Leahy (for himself, Mr. Hatch, Ms. Klobuchar, Mr. Whitehouse, Mr. 
 Schumer, Mr. Kohl, Mr. Specter, Mr. Durbin, Mr. Bayh, Mr. Voinovich, 
and Mrs. Feinstein) introduced the following bill; which was read twice 
             and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
         To combat online infringement, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Combating Online Infringement and 
Counterfeits Act''.

SEC. 2. INTERNET SITES DEDICATED TO INFRINGING ACTIVITIES.

    Chapter 113 of title 18, United States Code, is amended by adding 
at the end the following:
``Sec. 2324. Internet sites dedicated to infringing activities
    ``(a) Definition.--For purposes of this section, an Internet site 
is `dedicated to infringing activities' if such site--
            ``(1) is otherwise subject to civil forfeiture to the 
        United States Government under section 2323; or
            ``(2) is--
                    ``(A) primarily designed, has no demonstrable, 
                commercially significant purpose or use other than, or 
                is marketed by its operator, or by a person acting in 
                concert with the operator, to offer--
                            ``(i) goods or services in violation of 
                        title 17, United States Code, or enable or 
                        facilitate a violation of title 17, United 
                        States Code, including by offering or providing 
                        access to, without the authorization of the 
                        copyright owner or otherwise by operation of 
                        law, copies of, or public performance or 
                        display of, works protected by title 17, in 
                        complete or substantially complete form, by any 
                        means, including by means of download, 
                        transmission, or otherwise, including the 
                        provision of a link or aggregated links to 
                        other sites or Internet resources for obtaining 
                        such copies for accessing such performance or 
                        displays; or
                            ``(ii) to sell or distribute goods, 
                        services, or materials bearing a counterfeit 
                        mark, as that term is defined in section 34(d) 
                        of the Act entitled `An Act to provide for the 
                        registration and protection of trademarks used 
                        in commerce, to carry out the provisions of 
                        certain international conventions, and for 
                        other purposes', approved July 5, 1946 
                        (commonly referred to as the `Trademark Act of 
                        1946' or the `Lanham Act'; 15 U.S.C. 1116(d)); 
                        and
                    ``(B) engaged in the activities described in 
                subparagraph (A), and when taken together, such 
                activities are central to the activity of the Internet 
                site or sites accessed through a specific domain name.
    ``(b) Injunctive Relief.--On application of the Attorney General 
following the commencement of an action pursuant to subsection (c), the 
court may issue a temporary restraining order, a preliminary 
injunction, or an injunction against the domain name used by an 
Internet site dedicated to infringing activities to cease and desist 
from undertaking any infringing activity in violation of this section, 
in accordance with rule 65 of the Federal Rules of Civil Procedure. A 
party described in subsection (e) receiving an order issued pursuant to 
this section shall take the appropriate actions described in subsection 
(e).
    ``(c) In Rem Action.--
            ``(1) In general.--The Attorney General may commence an in 
        rem action against any domain name used by an Internet site in 
        the judicial district in which the domain name registrar or 
        domain name registry is located, or, if pursuant to subsection 
        (d)(2), in the District of Columbia, if--
                    ``(A) the domain name is dedicated to infringing 
                activities; and
                    ``(B) the Attorney General simultaneously--
                            ``(i) sends a notice of the alleged 
                        violation and intent to proceed under this 
                        subsection to the registrant of the domain name 
                        at the postal and e-mail address provided by 
                        the registrant to the registrar, if available; 
                        and
                            ``(ii) publishes notice of the action as 
                        the court may direct promptly after filing the 
                        action.
            ``(2) Service of process.--For purposes of this section, 
        the actions described under paragraph (1)(B) shall constitute 
        service of process.
    ``(d) Situs.--
            ``(1) Domains for which the registry or registrar is 
        located domestically.--In an in rem action commenced under 
        subsection (c), a domain name shall be deemed to have its situs 
        in the judicial district in which--
                    ``(A) the domain name registrar or registry is 
                located, provided that for a registry that is located 
                in more than 1 judicial district, venue shall be 
                appropriate at the principal place where the registry 
                operations are performed; or
                    ``(B) documents sufficient to establish control and 
                authority regarding the disposition of the registration 
                and use of the domain name are deposited with the 
                court.
            ``(2) Domains for which the registry or registrar is not 
        located domestically.--
                    ``(A) Action brought in district of columbia.--If 
                the provisions of paragraph (1) do not apply to a 
                particular domain name, the in rem action may be 
                brought in the District of Columbia to prevent the 
                importation into the United States of goods and 
                services offered by an Internet site dedicated to 
                infringing activities if--
                            ``(i) the domain name is used to access 
                        such Internet site in the United States; and
                            ``(ii) the Internet site--
                                    ``(I) conducts business directed to 
                                residents of the United States; and
                                    ``(II) harms intellectual property 
                                rights holders that are residents of 
                                the United States.
                    ``(B) Determination by the court.--For purposes of 
                determining whether an Internet site conducts business 
                directed to residents of the United States under 
                subparagraph (A)(ii)(I), a court shall consider, among 
                other indicia whether--
                            ``(i) the Internet site is actually 
                        providing goods or services to subscribers 
                        located in the United States;
                            ``(ii) the Internet site states that it is 
                        not intended, and has measures to prevent, 
                        infringing material from being accessed in or 
                        delivered to the United States;
                            ``(iii) the Internet site offers services 
                        accessible in the United States; and
                            ``(iv) any prices for goods and services 
                        are indicated in the currency of the United 
                        States.
    ``(e) Service of Court Order.--
            ``(1) Domestic domains.--In an in rem action to which 
        subsection (d)(1) applies, the Attorney General shall serve any 
        court order issued pursuant to this section on the domain name 
        registrar or, if the domain name registrar is not located 
        within the United States, upon the registry. Upon receipt of 
        such order, the domain name registrar or domain name registry 
        shall suspend operation of, and lock, the domain name.
            ``(2) Nondomestic domains.--
                    ``(A) Entity to be served.--In an in rem action to 
                which subsection (d)(2) applies, the Attorney General 
                may serve any court order issued pursuant to this 
                section on any entity listed in clauses (i) through 
                (iii) of subparagraph (B).
                    ``(B) Required actions.--Upon receipt of a court 
                order issued pursuant to this section--
                            ``(i) a service provider, as that term is 
                        defined in section 512(k)(1) of title 17, 
                        United States Code, or other operator of a 
                        domain name system server shall take reasonable 
                        steps that will prevent a domain name from 
                        resolving to that domain name's Internet 
                        protocol address;
                            ``(ii) a financial transaction provider, as 
                        that term is defined in section 5362(4) of 
                        title 31, United States Code, shall take 
                        reasonable measures, as expeditiously as 
                        practical, to prevent--
                                    ``(I) its service from processing 
                                transactions for customers located 
                                within the United States based on 
                                purchases associated with the domain 
                                name; and
                                    ``(II) its trademarks from being 
                                authorized for use on Internet sites 
                                associated with such domain name; and
                            ``(iii) a service that serves contextual or 
                        display advertisements to Internet sites shall 
                        take reasonable measures, as expeditiously as 
                        practical, to prevent its network from serving 
                        advertisements to an Internet site accessed 
                        through such domain name.
            ``(3) Immunity.--No cause of action shall lie in any 
        Federal or State court or administrative agency against any 
        entity receiving a court order issued under this section, or 
        against any director, officer, employee, or agent thereof, for 
        any action reasonably calculated to comply with this section or 
        arising from such order.
    ``(f) Publication of Orders.--The Attorney General shall inform the 
Intellectual Property Enforcement Coordinator of all court orders 
issued under this section directed to specific domain names associated 
with Internet sites dedicated to infringing activities. The 
Intellectual Property Enforcement Coordinator shall post such domain 
names on a publicly available Internet site, together with other 
relevant information, in order to inform the public.
    ``(g) Enforcement of Orders.--In order to compel compliance with 
this section, the Attorney General may bring an action against any 
party receiving a court order issued pursuant to this section that 
willfully or persistently fails to comply with such order. A showing by 
the defending party in such action that it does not have the technical 
means to comply with this section shall serve as a complete defense to 
such action.
    ``(h) Modification or Vacation of Orders; Dismissal.--
            ``(1) Modification or vacation of order.--At any time after 
        the issuance of a court order constituting injunctive relief 
        under this section--
                    ``(A) the Attorney General may apply for a 
                modification of the order--
                            ``(i) to expand the order to apply to a 
                        domain name that is reconstituted using a 
                        different domain name subsequent to the 
                        original order, and
                            ``(ii) to include additional domain names 
                        that are used in substantially the same manner 
                        as the Internet site against which the action 
                        was brought,
                by providing the court with clear indicia of joint 
                control, ownership, or operation of the Internet site 
                associated with the domain name subject to the order 
                and the Internet site associated with the requested 
                modification; and
                    ``(B) a defendant or owner or operator of a domain 
                name subject to the order, or any party required to 
                take action based on the order, may petition the court 
                to modify, suspend, or vacate the order, based on 
                evidence that--
                            ``(i) the Internet site associated with the 
                        domain name subject to the order is no longer 
                        dedicated to infringing activities; or
                            ``(ii) the interests of justice require 
                        that the order be modified, suspended, or 
                        vacated.
            ``(2) Dismissal of order.--A court order constituting 
        injunctive relief under this section issued against a domain 
        name used by an Internet site dedicated to infringing 
        activities shall automatically cease to have any force or 
        effect upon expiration of the registration of the domain name. 
        It shall be the responsibility of the domain name registrar to 
        notify the court of such expiration.
    ``(i) Savings Clause.--Nothing in this section shall be construed 
to limit civil or criminal remedies available to any person (including 
the United States) for infringing activities on the Internet pursuant 
to any other Federal or State law.
    ``(j) Internet Sites Alleged by the Department of Justice To Be 
Dedicated to Infringing Activities.--
            ``(1) In general.--The Attorney General shall maintain a 
        public listing of domain names that, upon information and 
        reasonable belief, the Department of Justice determines are 
        dedicated to infringing activities but for which the Attorney 
        General has not filed an action under this section.
            ``(2) Protection for undertaking corrective measures.--If 
        an entity described under subsection (e) takes any action 
        specified in such subsection with respect to a domain name that 
        appears on the list established under paragraph (1), then such 
        entity shall receive the immunity protections described under 
        subsection (e)(3).
            ``(3) Removal from list.--The Attorney General shall 
        establish and publish procedures for the owner or operator of a 
        domain name appearing on the list established under paragraph 
        (1) to petition the Attorney General to remove such domain name 
        from the list based on any of the factors described under 
        subsection (h)(1)(B).
            ``(4) Judicial review.--
                    ``(A) In general.--After the Attorney General makes 
                a final determination on a petition to remove a domain 
                name appearing on the list established under paragraph 
                (1) filed by an individual pursuant to the procedures 
                referred to in paragraph (3), the individual may obtain 
                judicial review of such determination in a civil action 
                commenced not later than 90 days after notice of such 
                decision, or such further time as the Attorney General 
                may allow.
                    ``(B) Jurisdiction.--A civil action for such 
                judicial review shall be brought in the district court 
                of the United States for the judicial district in which 
                the plaintiff resides, or has a principal place of 
                business, or, if the plaintiff does not reside or have 
                a principal place of business within any such judicial 
                district, in the District Court of the United States 
                for the District of Columbia.
                    ``(C) Answer.--As part of the Attorney General's 
                answer to a complaint for such judicial review, the 
                Attorney General shall file a certified copy of the 
                administrative record compiled pursuant to the petition 
                to remove, including the evidence upon which the 
                findings and decision complained of are based.
                    ``(D) Judgment.--The court shall have power to 
                enter, upon the pleadings and transcript of the record, 
                a judgment affirming or reversing the result of the 
                Attorney General's determination on the petition to 
                remove, with or without remanding the cause for a 
                rehearing.''.

SEC. 3. REQUIRED ACTIONS BY THE ATTORNEY GENERAL.

    The Attorney General shall--
            (1) publish procedures to receive information from the 
        public about Internet sites that are dedicated to infringing 
        activities, as that term is defined under section 2324 of title 
        18, United States Code;
            (2) provide guidance to intellectual property rights 
        holders about what information such rights holders should 
        provide the Department of Justice to initiate an investigation 
        pursuant to such section 2324;
            (3) provide guidance to intellectual property rights 
        holders about how to supplement an ongoing investigation 
        initiated pursuant to such section 2324;
            (4) establish standards for prioritization of actions 
        brought under such section 2324; and
            (5) provide appropriate resources and procedures for case 
        management and development to affect timely disposition of 
        actions brought under such section 2324.
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