[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 2029 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 2029
To amend the Tariff Act of 1930 to deter unfair imports that infringe
United States intellectual property rights, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 17, 2011
Mr. Wyden (for himself, Mr. Moran, and Ms. Cantwell) introduced the
following bill; which was read twice and referred to the Committee on
Finance
_______________________________________________________________________
A BILL
To amend the Tariff Act of 1930 to deter unfair imports that infringe
United States intellectual property rights, 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 ``Online Protection and Enforcement of
Digital Trade Act'' or the ``OPEN Act''.
SEC. 2. UNFAIR TRADE PRACTICES RELATING TO INFRINGEMENT OF COPYRIGHTS
AND TRADEMARKS BY CERTAIN INTERNET SITES.
(a) In General.--Title III of the Tariff Act of 1930 (19 U.S.C.
1304 et seq.) is amended by inserting after section 337 the following:
``SEC. 337A. UNFAIR TRADE PRACTICES RELATING TO INFRINGEMENT OF
COPYRIGHTS AND TRADEMARKS BY CERTAIN INTERNET SITES.
``(a) Definitions.--In this section:
``(1) Complainant.--The term `complainant' means a person
who files a complaint with the Commission under subsection (d).
``(2) Domain name.--The term `domain name' has the meaning
given that term in section 45 of the Lanham Act (15 U.S.C.
1127).
``(3) Financial transaction provider.--
``(A) In general.--Except as provided in
subparagraph (B), the term `financial transaction
provider' has the meaning given that term in section
5362(4) of title 31, United States Code.
``(B) Exception.--The term `financial transaction
provider' does not include an Internet service platform
or an affiliate of an Internet service platform.
``(4) Infringing activity.--The term `infringing activity'
means an activity that--
``(A) infringes a copyright in a manner punishable
under section 506 of title 17, United States Code;
``(B) violates section 1201 of title 17, United
States Code; or
``(C) uses counterfeit marks in a manner punishable
under section 34(d) of the Lanham Act (15 U.S.C.
1116(d)).
``(5) Internet advertising service.--The term `Internet
advertising service' means a service that serves an online
advertisement in viewable form for any period of time on an
Internet site that is not owned or controlled by the Internet
advertising service.
``(6) Internet service platform.--The term `Internet
service platform' means an interactive digital service the
provider of which--
``(A) does not act merely as a payment intermediary
between a user and a supplier of goods or services; and
``(B) provides additional services to facilitate
interaction between users unrelated to purchases from
suppliers of goods and services.
``(7) Internet site.--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) Internet site dedicated to infringing activity.--
``(A) In general.--The term `Internet site
dedicated to infringing activity' means an Internet
site that--
``(i) is accessed through a nondomestic
domain name;
``(ii) conducts business directed to
residents of the United States; and
``(iii) has only limited purpose or use
other than engaging in infringing activity and
whose owner or operator primarily uses the
site--
``(I) to willfully--
``(aa) infringe a copyright
in a manner punishable under
section 506 of title 17, United
States Code; or
``(bb) violate section 1201
of title 17, United States
Code; or
``(II) to use counterfeit marks in
a manner punishable under section 34(d)
of the Lanham Act (15 U.S.C. 1116(d)).
``(B) Business directed to residents of the united
states.--For purposes of determining whether an
Internet site conducts business directed to residents
of the United States under subparagraph (A)(ii), the
Commission may consider, among other indicators,
whether--
``(i) the Internet site is providing goods
or services to users located in the United
States;
``(ii) there is evidence that the Internet
site is not intended to provide goods and
services to such users or access to or delivery
of goods and services to such users;
``(iii) the Internet site has reasonable
measures in place to prevent goods and services
provided by the Internet site from being
accessed from or delivered to the United
States;
``(iv) the Internet site offers services
obtained in the United States; and
``(v) any prices for goods and services
provided by the Internet site are indicated in
the currency of the United States.
``(C) Exclusions.--An Internet site is not an
Internet site dedicated to infringing activity--
``(i) if the Internet site has a practice
of expeditiously removing, or disabling access
to, material that is claimed to be infringing
or to be the subject of infringing activity
after notification by the owner of the
copyright or trademark alleged to be infringed
or its authorized representative;
``(ii) because the Internet site engages in
an activity that would not make the operator
liable for monetary relief for infringing a
copyright under section 512 of title 17, United
States Code; or
``(iii) because of the distribution by the
Internet site of copies that were made without
infringing a copyright or trademark.
``(9) Lanham act.--The term `Lanham Act' means 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 (15 U.S.C. 1051 et seq.) (commonly
referred to as the `Trademark Act of 1946' or the `Lanham
Act').
``(10) Nondomestic domain name.--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, the domain name registrar for the domain
name, and the owner and the operator of the Internet site
associated with the domain name, are not located in the United
States.
``(11) Operator.--The term `operator', when used in
connection with an Internet site, includes any person with
authority to operate the Internet site.
``(12) Owner.--The term `owner', when used in connection
with an Internet site, includes any owner of a majority
interest in the Internet site.
``(13) Trademark.--The term `trademark' has the meaning
given that term in section 45 of the Lanham Act (15 U.S.C.
1127).
``(b) Applicability of Section.--It shall be a violation of this
section, and an unfair practice in import trade, for an Internet site
dedicated to infringing activity to facilitate imports into the United
States. If the Commission determines that there has been a violation of
this subsection, that violation shall be dealt with as provided in this
section.
``(c) Investigation of Violations by Commission.--
``(1) In general.--The Commission--
``(A) may investigate an alleged violation of
subsection (b) on its own initiative; and
``(B) shall investigate any alleged violation of
subsection (b) upon receiving a complaint filed under
subsection (d).
``(2) Procedures.--An investigation initiated under
paragraph (1) shall be subject to the requirements of section
337(b)(1) with respect to notice of investigations and timing
of determinations.
``(3) Consultations.--In conducting an investigation
initiated under paragraph (1), the Commission shall consult
with, and seek advice and information from, the Attorney
General, the Secretary of State, the Secretary of Homeland
Security, the Secretary of Commerce, the Intellectual Property
Enforcement Coordinator, the United States Trade
Representative, and such other officials as the Commission
considers appropriate.
``(4) Termination of investigations; referral.--If the
Commission has reason to believe, based on information before
the Commission, that the domain name associated with an
Internet site that is the subject of a complaint filed under
subsection (d) is not a nondomestic domain name, the Commission
shall terminate, or not initiate, an investigation with respect
to the complaint, and shall refer the matter, including any
evidentiary record that the Commission has developed, to the
Attorney General for such further proceedings as the Attorney
General determines appropriate.
``(5) Limitation on investigations of domain names; consent
to jurisdiction.--Notwithstanding any other provision of this
section, the Commission shall terminate, or not initiate, an
investigation under paragraph (1) with respect to a domain
name--
``(A) if the operator of the Internet site
associated with the domain name provides in a legal
notice on the site accurate information consisting of--
``(i) the name of an individual authorized
to receive process on behalf of the site;
``(ii) an address at which process may be
served;
``(iii) a telephone number at which the
individual described in clause (i) may be
contacted; and
``(iv) a statement that the operator of the
site--
``(I) consents to the jurisdiction
and venue of the United States district
courts with respect to a violation
punishable under section 506 of title
17, United States Code, a criminal
offense under section 1204 of title 17,
United States Code, for a violation of
section 1201 of such title, or a
violation of section 2320 of title 18
of such Code; and
``(II) will accept service of
process from the Attorney General with
respect to those violations and the
offense set forth in subclause (I); and
``(B) provided that, in the event of the filing of
any civil action in the appropriate United States
district court--
``(i) for infringement of copyright under
section 501 of title 17, United States Code,
``(ii) under section 1203 of title 17,
United States Code, for a violation of section
1201 of such title, or
``(iii) under section 32(1) of the Lanham
Act,
accepts service and waives, in a timely manner, any
objections to jurisdiction as set forth in the
statement described in subparagraph (A)(iv).
``(d) Complaints.--
``(1) In general.--A complaint alleging, under oath, that
an Internet site dedicated to infringing activity is being
operated or maintained in violation of subsection (b) may be
filed with the Commission by the owner of a copyright or
trademark that is the subject of the infringing activity
alleged in the complaint.
``(2) Notice to registrant of domain name of internet site
alleged to be violating this section.--
``(A) In general.--Upon filing a complaint under
paragraph (1), the complainant shall send a notice of
the violation alleged in the complaint to the
registrant of the domain name of the Internet site
alleged to be operated or maintained in violation of
subsection (b)--
``(i) at the postal and e-mail addresses
appearing in the applicable publicly accessible
database of registrations, if any, to the
extent such addresses are reasonably available;
``(ii) via the postal and e-mail addresses
of the registrar, registry, or other domain
name registration authority that registered or
assigned the domain name, to the extent such
addresses are reasonably available; and
``(iii) in any other such form as the
Commission finds necessary.
``(B) Rule of construction.--For purposes of this
subsection, the actions described in this paragraph
shall constitute service of process.
``(3) Identification of, and notice to, entities that may
be required to take action pursuant to this section.--
``(A) Identification.--A complaint filed under
paragraph (1) shall identify any financial transaction
provider or Internet advertising service that may be
required to take measures described in subsection
(g)(2) if the Commission issues an order under
subsection (f) with respect to the complaint and the
order is served on the provider or service pursuant to
subsection (g)(1).
``(B) Notice.--Upon filing a complaint under
paragraph (1), the complainant shall provide notice to
any financial transaction provider or Internet
advertising service identified in the complaint
pursuant to subparagraph (A) or any amendments to the
complaint.
``(C) Intervention.--
``(i) In general.--A financial transaction
provider or Internet advertising service
identified in a complaint pursuant to
subparagraph (A) may intervene upon timely
request filed with the Commission in--
``(I) an investigation initiated
under subsection (c) pursuant to the
complaint; or
``(II) pursuant to subsection
(f)(3), an action to modify, suspend,
or vacate an order issued pursuant to
the complaint.
``(ii) Rule of construction.--Failure to
intervene under clause (i) in an investigation
under subsection (c) does not preclude a
financial transaction provider or Internet
advertising service notified of the
investigation from subsequently seeking an
order to modify, suspend, or vacate an order
issued by the Commission under subsection (f).
``(e) Determinations.--
``(1) In general.--The Commission shall determine, with
respect to each investigation initiated under subsection (c)
alleging that an Internet site dedicated to infringing activity
is operated or maintained in violation of subsection (b),
whether or not the Internet site is operated or maintained in
violation of subsection (b).
``(2) Exceptions and procedures relating to
determinations.--Except as specifically provided in this
subsection, the provisions of the first, second, third, and
eighth sentences of subsection (c) of section 337 providing for
exceptions and procedures relating to determinations of the
Commission under that section shall apply with respect to a
determination under paragraph (1) to the same extent and in the
same manner as those provisions apply to determinations under
section 337.
``(3) Effective date.--A determination made under paragraph
(1) shall take effect on the date on which the Commission
publishes the determination in the Federal Register.
``(4) Referrals to president; termination for
disapproval.--
``(A) In general.--If the Commission determines
under paragraph (1) that an Internet site dedicated to
infringing activity is operated or maintained in
violation of subsection (b), the Commission shall
promptly submit to the President a copy of a
determination, the record upon which the determination
is based, and any order issued under subsection (f)
pursuant to the determination.
``(B) Termination of determination based on
disapproval of president.--If the President disapproves
of a determination of the Commission for policy reasons
and notifies the Commission of that disapproval not
later than 60 days after the determination is made, the
determination and any order issued pursuant to the
determination shall cease to have force or effect on
the date on which the President notifies the Commission
of that disapproval.
``(5) Electronic submission of information and
proceedings.--The Commission may, in making any determination
under this section--
``(A) allow the submission of information
electronically; and
``(B) hold hearings electronically or obtain
testimony or other information electronically or by
such means as the Commission determines allows
participation in proceedings under this section at as
low a cost as possible to participants in the
proceedings.
``(6) Additional procedures relating to review of certain
determinations.--Notwithstanding the provisions of this
subsection or any provision of section 337(c), a determination
of the Commission under this section with respect to the
appropriate remedy provided by the Commission, a determination
under subsection (f)(2) with respect to the forfeiture of a
bond, and a determination under subsection (i) with respect to
the imposition of sanctions for abuse of discovery or abuse of
process, shall be reviewable in accordance with section 706 of
title 5, United States Code.
``(f) Cease and Desist Orders.--
``(1) In general.--If the Commission determines under
subsection (e) that an Internet site dedicated to infringing
activity is operated or maintained in violation of subsection
(b), the Commission may--
``(A) issue an order to cease and desist the
infringing activity of the Internet site against the
Internet site and to the owner and the operator of the
Internet site; and
``(B) cause the order to be served on the owner and
the operator.
``(2) Temporary and preliminary cease and desist orders.--
``(A) Petition by complainant.--A complainant may
file with the chairperson of the Commission (or the
designee of the chairperson) a petition, in accordance
with this paragraph, for the issuance of a temporary or
preliminary order against the Internet site and to the
owner and the operator of the Internet site to cease
and desist the infringing activity alleged in the
complaint filed under subsection (d).
``(B) Issuance of order.--If, upon receiving a
petition under subparagraph (A) and after providing an
opportunity to be heard under subparagraph (C), the
chairperson of the Commission (or the designee of the
chairperson) determines that there is reason to believe
that an Internet site dedicated to infringing activity
is operated or maintained in violation of subsection
(b), the chairperson of the Commission (or the designee
of the chairperson) may issue a temporary or
preliminary cease and desist order against, and cause
the order to be served on, the Internet site and the
owner and the operator of the Internet site.
``(C) Opportunity to be heard.--
``(i) In general.--Before issuing a
temporary or preliminary cease and desist order
under this paragraph, the chairperson of the
Commission (or the designee of the chairperson)
shall provide to the owner and the operator of
the Internet site alleged to be operated or
maintained in violation of subsection (b) an
opportunity to be heard and to submit relevant
information to the chairperson of the
Commission (or the designee of the
chairperson).
``(ii) Electronic submission of information
and proceedings.--The chairperson of the
Commission (or the designee of the chairperson)
may provide an opportunity to be heard and to
submit information under clause (i)
electronically or in such other manner as the
chairperson of the Commission (or the designee
of the chairperson) determines appropriate.
``(D) Standard for relief.--If the chairperson of
the Commission (or the designee of the chairperson)
issues a temporary or preliminary cease and desist
order under this paragraph, the order shall be issued
in a manner consistent with the provisions of rule 65
of the Federal Rules of Civil Procedure, or any
successor thereto, relating to preliminary injunctions
and temporary restraining orders.
``(E) Procedures for temporary cease and desist
order.--
``(i) Expedited consideration.--Upon a
showing of extraordinary circumstances by the
complainant filing a petition for a temporary
cease and desist order under subparagraph (A),
the chairperson of the Commission (or the
designee of the chairperson) may make a
determination with respect to the petition on
an expedited basis.
``(ii) Expiration of order.--
``(I) In general.--Except as
provided in subclause (II), a temporary
cease and desist order issued under
this paragraph shall expire at a time
determined by the chairperson of the
Commission (or the designee of the
chairperson) that is not later than 14
days after the issuance of the order.
``(II) Extension of order.--The
chairperson of the Commission (or the
designee of the chairperson) may extend
a temporary cease and desist order
issued under this paragraph for
additional periods of not more than 14
days for good cause or with the consent
of the entity against which the order
is issued.
``(F) Procedures for preliminary cease and desist
order.--
``(i) In general.--Except as provided in
clause (ii), the chairperson of the Commission
(or the designee of the chairperson) shall make
a determination with respect to a petition for
a preliminary cease and desist order not later
than 30 days after the Commission publishes
notice of the initiation of an investigation
under subsection (c) in the Federal Register.
``(ii) Extensions of time for
determination.--The chairperson of the
Commission (or the designee of the chairperson)
may extend the date by which the chairperson of
the Commission (or the designee of the
chairperson) is required to make a
determination under clause (i) with respect to
a petition for a preliminary cease and desist
order for an additional 30 days if the
chairperson of the Commission (or the designee
of the chairperson)--
``(I) determines that the petition
presents a more complicated case; and
``(II) publishes in the Federal
Register an explanation of why the
chairperson of the Commission (or the
designee of the chairperson) determined
that the case is more complicated under
subclause (I).
``(G) Bonding requirement.--
``(i) In general.--For purposes of
discouraging the filing of frivolous petitions
under subparagraph (A) for the issuance of a
temporary or preliminary cease and desist
orders, the chairperson of the Commission (or
the designee of the chairperson) may require a
complainant that files a petition under
subparagraph (A) to post a bond before issuing
a temporary or preliminary cease and desist
order.
``(ii) Forfeiture of bond.--If, after
issuing a temporary or preliminary cease and
desist order under this paragraph, the
Commission determines that the Internet site
against which the order was issued was not an
Internet site dedicated to infringing activity
operated in violation of subsection (b), the
Commission may, pursuant to such terms and
conditions as the Commission prescribes,
require the forfeiture of the bond posted by
the complainant under clause (i) and the
provision of the bond to the owner or the
operator of the Internet site.
``(H) Applicability of administrative procedure
act.--The provisions of section 554 of title 5, United
States Code, shall not apply with respect to the
issuance of preliminary or temporary cease and desist
orders under this paragraph.
``(3) Modification or revocation of orders.--
``(A) In general.--At any time after the issuance
of an order under this subsection, a motion to modify,
suspend, or vacate the order may be filed by--
``(i) any entity, or owner or operator of
property, bound by the order;
``(ii) the owner or operator of the
Internet site subject to the order;
``(iii) any domain name registrar or
registry that has registered or assigned the
domain name of the Internet site subject to the
order; or
``(iv) a financial transaction provider or
Internet advertising service on which a copy of
an order has been served pursuant to paragraph
(1) of subsection (g) requiring the provider or
service to take action described in paragraph
(2) of that subsection.
``(B) Relief.--The Commission shall modify,
suspend, or vacate an order, as appropriate, if the
Commission determines that--
``(i) the Internet site subject to the
order is no longer, or never was, an Internet
site dedicated to infringing activity; or
``(ii) the interests of justice require
that the order be modified, suspended, or
vacated.
``(C) Consideration.--In making a determination
under subparagraph (B), the Commission may consider
whether the domain name of the Internet site subject to
the order has expired or has been re-registered by a
different entity.
``(4) Amendment of orders.--A complainant may petition the
Commission to amend an order issued under this subsection if an
Internet site determined under subsection (e) to be an Internet
site dedicated to infringing activity is accessible or has been
reconstituted at a different domain name.
``(5) Opportunity to be heard for certain entities.--Before
the Commission issues an order under this subsection or
modifies, suspends, vacates, or amends such an order under
paragraph (3) or (4), a financial transaction provider or
Internet advertising service that intervened pursuant to
subsection (d)(3) in an investigation or action relating to the
order shall have an opportunity to be heard before the
Commission with respect to whether the Commission should issue
the order and the scope of relief available under the order or
whether the Commission should modify, suspend, vacate, or amend
the order, as the case may be.
``(6) Expiration of orders with respect to internet site.--
An order issued under this subsection against an Internet site
shall cease to have any force or effect upon expiration of the
registration of the domain name of the Internet site.
``(g) Required Actions Based on Commission Orders.--
``(1) In general.--If the Commission reasonably believes
that a financial transaction provider or an Internet
advertising service identified in a complaint pursuant to
subsection (d)(3), or any amendment to the complaint, supplies
services to the Internet site that is subject to the order
issued under subsection (f) with respect to the complaint--
``(A) the Commission may give permission to the
complainant to serve a copy of the order on the
financial transaction provider or Internet advertising
service, as the case may be;
``(B) if the Commission gives permission to the
complainant under subparagraph (A), the complainant
shall file proof of service with the Commission; and
``(C) upon receiving a copy of the order pursuant
to subparagraph (A), the financial transaction provider
or Internet advertising service, as the case may be,
shall implement the measures described in paragraph
(2).
``(2) Measures described.--The measures described in this
paragraph are the following:
``(A) Measures to be implemented by financial
transaction providers.--
``(i) In general.--Subject to clause (ii),
a financial transaction provider shall take
reasonable measures, as expeditiously as
reasonable, designed to prevent or prohibit the
completion of payment transactions by the
provider that involve customers located in the
United States and the Internet site subject to
the order issued under subsection (f).
``(ii) Limitations on measures.--A
financial transaction provider may not be
required pursuant to clause (i)--
``(I) to implement measures that
are not commercially reasonable;
``(II) to modify services or
facilities of the provider to comply
with the order issued under subsection
(f); or
``(III) to prevent or prohibit the
completion of a payment transaction if
the provider could not reasonably
determine in advance whether the entity
was using the Internet site subject to
the order.
``(B) Internet advertising services.--
``(i) In general.--Subject to clause (ii),
an Internet advertising service shall, as
expeditiously as reasonable, take technically
feasible measures intended to cease serving
advertisements to the Internet site subject to
the order issued under subsection (f) in
situations in which the service would directly
share revenues generated by the advertisements
with the operator of the Internet site.
``(ii) Limitations on measures.--An
Internet advertising service may not be
required pursuant to clause (i)--
``(I) to implement measures that
are not commercially reasonable;
``(II) to modify the services or
facilities of the service to comply
with the order issued under subsection
(f); or
``(III) to cease serving an
advertisement to an Internet site if
the service could not reasonably
determine before serving the
advertisement that the advertisement
was being served to the Internet site
subject to the order.
``(3) Communication with users.--A financial transaction
provider or an Internet advertising service required to
implement measures described in paragraph (2) shall determine
how to communicate with the users or customers of the provider
or service, as the case may be, with respect to those measures.
``(4) Rules of construction.--
``(A) Limitation on obligations.--A financial
transaction provider or an Internet advertising service
required to implement measures described in paragraph
(2) shall not be required to take measures or actions
in addition to the measures described in paragraph (2)
pursuant to this section or an order issued under this
section.
``(B) Manner of compliance.--A financial
transaction provider or an Internet advertising service
required to implement measures described in paragraph
(2) shall be in compliance with this subsection if the
provider or service, as the case may be, implements the
measures described in that paragraph with respect to
accounts of the provider or service, as the case may
be, as of the date on which a copy of an order is
served under paragraph (1) or, if applicable, the date
on which the order is modified or amended under
paragraph (3) or (4) of subsection (f).
``(5) Actions pursuant to commission order.--
``(A) Immunity from civil actions.--No cause of
action shall lie in any court against a financial
transaction provider or an Internet advertising service
on which a copy of an order is served under paragraph
(1), or against any director, officer, employee, or
agent thereof, other than in an action pursuant to
subsection (h), for--
``(i) any act reasonably designed to comply
with this subsection or reasonably arising from
the order; or
``(ii) any act, failure, or inability to
meet the obligations under this subsection of
the provider or service if the provider or
service, as the case may be, makes a good faith
effort to comply with such obligations.
``(B) Immunity from liability.--A financial
transaction provider or an Internet advertising service
on which a copy of an order is served under paragraph
(1), and any director, officer, employee, or agent
thereof, shall not be liable to any person for any acts
reasonably designed to comply with this subsection or
reasonably arising from the order, other than in an
action pursuant to subsection (h).
``(C) Immunity from actions of third parties.--An
action taken by a third party to circumvent any
measures implemented pursuant to an order served on a
financial transaction provider or Internet advertising
service under paragraph (1) may not be used by any
person in any claim or cause of action against the
provider or service, as the case may be, other than in
an action pursuant to subsection (h).
``(h) Enforcement of Orders.--
``(1) In general.--In order to compel compliance with this
section, the Attorney General may bring an action for
injunctive relief against any person subject to an order issued
under subsection (f) or on which such an order is served under
subsection (g) that knowingly and willfully fails to comply
with the order.
``(2) Rule of construction.--The authority granted to the
Attorney General under paragraph (1) shall be the sole legal
remedy for enforcing the obligations under subsection (g) of a
financial transaction provider or Internet advertising service
on which an order is served under paragraph (1) of that
subsection.
``(3) Affirmative defenses.--A defendant in an action
commenced under paragraph (1) may establish an affirmative
defense by showing that the defendant does not have the
technical means to comply with this section without incurring
an unreasonable economic burden or that the order is
inconsistent with this section. That showing shall serve as a
defense only to the extent of the inability of the defendant to
comply or to the extent of the inconsistency.
``(i) Sanctions for Abuse of Process and Discovery.--The Commission
may, by rule, prescribe sanctions for abuse of process in a manner
consistent with the provisions of rule 11 and rule 37 of the Federal
Rules of Civil Procedure.
``(j) Immunity for Enforcement of Orders.--No cause of action shall
lie in any court, no person may rely on any claim or cause of action,
and no liability for damages to any person shall be granted, against a
financial transaction provider or Internet advertising service for
taking any action pursuant to subsection (g)(2) with respect to an
Internet site, or otherwise declining to serve or terminating
transactions with an Internet site, in the reasonable belief based on
credible evidence that--
``(1) the Internet site is an Internet site dedicated to
infringing activity; and
``(2) the action is consistent with the terms of service
and other contractual obligations of the provider or service,
as the case may be.
``(k) Immunity for Taking Voluntary Action Against Sites That
Endanger Public Health.--
``(1) Refusal of service.--A financial transaction provider
or Internet advertising service, acting in good faith and based
on credible evidence, may cease providing or refuse to provide
services to an Internet site the provider or service determines
to be an Internet site that endangers the public health.
``(2) Immunity from liability.--A financial transaction
provider or Internet advertising service described in paragraph
(1), including its directors, officers, employees, or agents,
that ceases or refuses to provide services under that paragraph
shall not be liable to any person under any Federal or State
law for ceasing or refusing to provide such services.
``(3) Definitions.--In this subsection:
``(A) Drug.--The term `drug' has the meaning given
that term in section 201(g)(1) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321(g)(1)).
``(B) Internet site that endangers the public
health.--The term `Internet site that endangers the
public health' means an Internet site that is primarily
designed or operated for the purpose of, has only
limited purpose or use other than, or is marketed by
its operator or another person acting in concert with
that operator for use in offering, selling, dispensing,
or distributing any prescription medication, and does
so regularly without a valid prescription.
``(C) Prescription medication.--The term
`prescription medication' means a drug that is subject
to section 503(b) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 353(b)).
``(D) Valid prescription.--The term `valid
prescription' has the meaning given that term in
section 309(e)(2)(A) of the Controlled Substances Act
(21 U.S.C. 829(e)(2)(A)).
``(l) Savings Clauses.--
``(1) In general.--Nothing in this section shall be
construed to limit or expand civil or criminal remedies
available to any person (including the United States) for
activities that infringe intellectual property rights on the
Internet pursuant to any other Federal or State law.
``(2) Rule of construction relating to vicarious or
contributory liability.--Nothing in this section shall be
construed--
``(A) to enlarge or diminish vicarious or
contributory liability for any cause of action
available under title 17, United States Code, or the
Lanham Act, including any limitations on liability
under section 512 of such title 17; or
``(B) to create an obligation to take action
pursuant to subsection (k).
``(3) Rule of construction relating to limitations,
exceptions, and defenses.--Nothing in this section shall be
construed to affect, limit, or deny application of any
limitation, exception, or defense to copyright or trademark
causes of action, including fair use and other exceptions,
limitations, or defenses available to any person pursuant to
any other Federal or State law.
``(4) Rule of construction relating to civil actions.--The
issuance of an order and actions taken or not taken pursuant to
this section shall be inadmissible as evidence in any civil
action (other than an action under this section to enforce
compliance with subsection (b)) to establish that a party who
has received, or is otherwise made aware of, such an order has
knowledge regarding any infringing activities relating to the
Internet site subject to the order, including under section 512
of title 17, United States Code, in determining whether any
service provider had actual knowledge or should have known of
the infringing activity.''.
(b) Disclosure of Confidential Information.--Section 337(n) of the
Tariff Act of 1930 (19 U.S.C. 1337(n)) is amended--
(1) in paragraph (1), by inserting ``or section 337A''
after ``this section''; and
(2) in paragraph (2)--
(A) in subparagraph (A)--
(i) in clause (ii), by striking ``(j)'' and
inserting ``(j) of this section'';
(ii) in clause (iii), by striking ``(g), a
cease and desist order issued pursuant to
subsection (f), or a consent order issued
pursuant to subsection (c)'' and inserting
``(g) of this section, a cease and desist order
issued pursuant to subsection (f) of this
section or subsection (f) of section 337A, or a
consent order issued pursuant to subsection (c)
of this section or subsection (d) of section
337A''; and
(iii) in clause (iv), by striking ``(i), or
a consent order issued under this section'' and
inserting ``(i) of this section or subsection
(f) of section 337A, or a consent order issued
under this section or subsection (d) of section
337A'';
(B) in subparagraph (B), by striking ``(j)'' and
inserting ``(j) of this section or subsection (e)(5) of
section 337A''; and
(C) in subparagraph (C), by striking ``(g)'' and
inserting ``(g) of this section''.
SEC. 3. APPOINTMENT OF HEARING OFFICERS FOR PROCEEDINGS UNDER SECTIONS
337 AND 337A OF THE TARIFF ACT OF 1930.
Title III of the Tariff Act of 1930 (19 U.S.C. 1304 et seq.), as
amended by section 2, is further amended by inserting after section
337A the following:
``SEC. 337B. SECTION 337 JUDGES.
``(a) In General.--Notwithstanding section 556(b) of title 5,
United States Code, the Commission may appoint hearing officers, other
than administrative law judges appointed under section 3105 of title 5,
United States Code, to preside at the taking of evidence at hearings
required by sections 337 and 337A and to make initial and recommended
decisions in accordance with sections 554, 556, and 557 of such title
in investigations under sections 337 and 337A. The hearing officers
appointed under this subsection shall be known as `section 337 judges'.
``(b) Qualifications.--An individual appointed as a section 337
judge under paragraph (1) shall possess a minimum of 7 years of legal
experience and be licensed to practice law under the laws of a State,
the District of Columbia, the Commonwealth of Puerto Rico, or any
territorial court established under the Constitution of the United
States. The Commission may promulgate such other regulations as the
Commission considers necessary with respect to the qualifications of
section 337 judges, including technical expertise and experience in
patent, trademark, copyright, and unfair competition law.
``(c) Rotation.--Section 337 judges shall be assigned to cases in
rotation to the extent practicable or as otherwise provided for in the
rules of the Commission.
``(d) Other Duties.--A section 337 judge may not perform duties
inconsistent with the duties and responsibilities of a section 337
judge.
``(e) Removal.--A section 337 judge may be removed only for good
cause shown upon a hearing conducted on the record by the Merit Systems
Protection Board. The failure of the Commission to adopt the initial or
recommended decision of a section 337 judge shall not constitute good
cause.
``(f) Competitive Service.--Except as otherwise provided, the laws,
rules, and regulations applicable to positions in the competitive
service apply to section 337 judges. Upon appointment, a section 337
judge shall be paid in accordance with the pay rates provided for in
section 5372 of title 5, United States Code, commensurate with the pay
rate of an administrative law judge with similar time in service.
Section 337 judges shall not be Senior Executive Service positions (as
defined in section 3132(a) of title 5, United States Code).
``(g) Performance Evaluations.--Section 337 judges shall not
receive performance evaluations and shall not be compensated based on
performance.''.
SEC. 4. INFORMATION SHARING WITH RESPECT TO THE IMPORTATION OF
INFRINGING MERCHANDISE.
(a) Merchandise That Infringes Trademarks.--
(1) In general.--Notwithstanding section 1905 of title 18,
United States Code, if the Commissioner responsible for U.S.
Customs and Border Protection suspects that merchandise is
being imported into the United States in violation of section
42 of the Lanham Act, and subject to any applicable bonding
requirements, the Secretary of Homeland Security may, for
purposes of determining whether the merchandise is being
imported in violation of that section, share with the holder of
the trademark suspected of being infringed--
(A) information about the merchandise or packaging
or labels of the merchandise; or
(B) unredacted samples, or photographs of, the
merchandise or packaging or labels of the merchandise.
(2) Lanham act defined.--In this subsection, the term
``Lanham Act'' means 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'').
(b) Merchandise That Circumvents Copyrights.--
(1) In general.--Notwithstanding section 1905 of title 18,
United States Code, if the Commissioner seizes merchandise that
the Commissioner suspects of being imported into the United
States in violation of subsection (a)(2) or (b) of section 1201
of title 17, United States Code, the Secretary of Homeland
Security may notify a copyright owner described in paragraph
(2) of the seizure of the merchandise.
(2) Copyright owner described.--A copyright owner described
in this paragraph is the owner of a copyright under title 17,
United States Code, if merchandise seized on the suspicion of
being imported in violation of subsection (a)(2) or (b) of
section 1201 of title 17, United States Code--
(A) is primarily designed or produced for the
purpose of circumventing, has only limited commercially
significant purpose or use other than to circumvent, or
is marketed for use in circumventing, a technological
measure that effectively controls access to a work
protected by that copyright; or
(B) is primarily designed or produced for the
purpose of circumventing, has only limited commercially
significant purpose or use other than to circumvent, or
is marketed for use in circumventing, protection
afforded by a technological measure that effectively
protects the rights of the copyright owner in a work or
a portion of a work.
SEC. 5. REGULATIONS.
Not later than 270 days after the date of the enactment of this
Act, the United States International Trade Commission shall prescribe
regulations--
(1) to provide for procedures for receiving information
from the public about Internet sites dedicated to infringing
activity (as defined in section 337A(a) of the Tariff Act of
1930 (as added by section 2 of this Act));
(2) to provide guidance to intellectual property rights
holders about--
(A) what information those rights holders should
provide to initiate an investigation pursuant to
section 337A(c) of the Tariff Act of 1930 (as added by
section 2 of this Act); and
(B) how to supplement an ongoing investigation
initiated pursuant to that section;
(3) to establish standards for the prioritization of
investigations initiated under that section; and
(4) to provide appropriate resources and procedures for
case management and development to affect timely disposition of
investigations initiated under that section.
SEC. 6. STUDY AND REPORTS.
The President shall--
(1) conduct a study on--
(A) the enforcement and effectiveness of section
337A of the Tariff Act of 1930 (as added by section 2
of this Act); and
(B) any modifications to the authorities provided
in that section necessary to address emerging
technologies; and
(2) not later than 2 years after the date of enactment of
this Act, submit to the Committee on Finance and the Committee
on the Judiciary of the Senate, and to the Committee on the
Ways and Means and the Committee on the Judiciary of the House
of Representatives, a report containing the results of the
study conducted under paragraph (1) and any recommendations
that the President may have as a result of the study.
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