[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.
<all>