[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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