[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 968 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 968
To prevent online threats to economic creativity and theft of
intellectual property, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 12, 2011
Mr. Leahy (for himself, Mr. Hatch, Mr. Grassley, Mr. Schumer, Mrs.
Feinstein, Mr. Whitehouse, Mr. Graham, Mr. Kohl, Mr. Coons, Mr.
Blumenthal, Ms. Klobuchar, and Mr. Franken) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To prevent online threats to economic creativity and theft of
intellectual property, 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 ``Preventing Real Online Threats to
Economic Creativity and Theft of Intellectual Property Act of 2011'' or
the ``PROTECT IP Act of 2011''.
SEC. 2. DEFINITIONS.
For purposes of this Act--
(1) the term ``domain name'' has the same meaning as in
section 45 of the Lanham Act (15 U.S.C. 1127);
(2) the term ``domain name system server'' means a server
or other mechanism used to provide the Internet protocol
address associated with a domain name;
(3) the term ``financial transaction provider'' has the
same meaning as in section 5362(4) of title 31, United States
Code;
(4) the term ``information location tool'' has the same
meaning as described in subsection (d) of section 512 of title
17, United States Code;
(5) the term ``Internet advertising service'' means a
service that for compensation sells, purchases, brokers,
serves, inserts, verifies, or clears the placement of an
advertisement, including a paid or sponsored search result,
link, or placement that is rendered in viewable form for any
period of time on an Internet site;
(6) the term ``Internet site'' means the collection of
digital assets, including links, indexes, or pointers to
digital assets, accessible through the Internet that are
addressed relative to a common domain name;
(7) the term ``Internet site dedicated to infringing
activities'' means an Internet site that--
(A) has no significant use other than engaging in,
enabling, or facilitating the--
(i) reproduction, distribution, or public
performance of copyrighted works, in complete
or substantially complete form, in a manner
that constitutes copyright infringement under
section 501 of title 17, United States Code;
(ii) violation of section 1201 of title 17,
United States Code; or
(iii) sale, distribution, or promotion of
goods, services, or materials bearing a
counterfeit mark, as that term is defined in
section 34(d) of the Lanham Act; or
(B) is designed, operated, or marketed by its
operator or persons operating in concert with the
operator, and facts or circumstances suggest is used,
primarily as a means for engaging in, enabling, or
facilitating the activities described under clauses
(i), (ii), or (iii) of subparagraph (A);
(8) 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'');
(9) the term ``nondomestic domain name'' means a domain
name for which the domain name registry that issued the domain
name and operates the relevant top level domain, and the domain
name registrar for the domain name, are not located in the
United States;
(10) the term ``owner'' or ``operator'' when used in
connection with an Internet site shall include, respectively,
any owner of a majority interest in, or any person with
authority to operate, such Internet site; and
(11) the term ``qualifying plaintiff'' means--
(A) the Attorney General of the United States; or
(B) an owner of an intellectual property right, or
one authorized to enforce such right, harmed by the
activities of an Internet site dedicated to infringing
activities occurring on that Internet site.
SEC. 3. ENHANCING ENFORCEMENT AGAINST ROGUE WEBSITES OPERATED AND
REGISTERED OVERSEAS.
(a) Commencement of an Action.--
(1) In personam.--The Attorney General may commence an in
personam action against--
(A) a registrant of a nondomestic domain name used
by an Internet site dedicated to infringing activities;
or
(B) an owner or operator of an Internet site
dedicated to infringing activities accessed through a
nondomestic domain name.
(2) In rem.--If through due diligence the Attorney General
is unable to find a person described in subparagraphs (A) or
(B) of paragraph (1), or no such person found has an address
within a judicial district of the United States, the Attorney
General may commence an in rem action against a nondomestic
domain name used by an Internet site dedicated to infringing
activities.
(b) Orders of the Court.--
(1) In general.--On application of the Attorney General
following the commencement of an action under this section, the
court may issue a temporary restraining order, a preliminary
injunction, or an injunction, in accordance with rule 65 of the
Federal Rules of Civil Procedure, against the nondomestic
domain name used by an Internet site dedicated to infringing
activities, or against a registrant of such domain name, or the
owner or operator of such Internet site dedicated to infringing
activities, to cease and desist from undertaking any further
activity as an Internet site dedicated to infringing
activities, if--
(A) the domain name is used within the United
States to access such Internet site; and
(B) the Internet site--
(i) conducts business directed to residents
of the United States; and
(ii) harms holders of United States
intellectual property rights.
(2) Determination by the court.--For purposes of
determining whether an Internet site conducts business directed
to residents of the United States under paragraph (1)(B)(i), a
court may consider, among other indicia, whether--
(A) the Internet site is providing goods or
services described in section 2(7) to users located in
the United States;
(B) there is evidence that the Internet site is not
intended to provide--
(i) such goods and services to users
located in the United States;
(ii) access to such goods and services to
users located in the United States; and
(iii) delivery of such goods and services
to users located in the United States;
(C) the Internet site has reasonable measures in
place to prevent such goods and services from being
accessed from or delivered to the United States;
(D) the Internet site offers services obtained in
the United States; and
(E) any prices for goods and services are indicated
in the currency of the United States.
(c) Notice and Service of Process.--
(1) In general.--Upon commencing an action under this
section, the Attorney General shall send a notice of the
alleged violation and intent to proceed under this Act to the
registrant of the domain name of the Internet site--
(A) at the postal and e-mail address appearing in
the applicable publicly accessible database of
registrations, if any and to the extent such addresses
are reasonably available;
(B) via the postal and e-mail address of the
registrar, registry, or other domain name registration
authority that registered or assigned the domain name,
to the extent such addresses are reasonably available;
and
(C) in any other such form as the court finds
necessary, including as may be required by Rule 4(f) of
the Federal Rules of Civil Procedure.
(2) Rule of construction.--For purposes of this section,
the actions described in this subsection shall constitute
service of process.
(d) Required Actions Based on Court Orders.--
(1) Service.--A Federal law enforcement officer, with the
prior approval of the court, may serve a copy of a court order
issued pursuant to this section on similarly situated entities
within each class described in paragraph (2). Proof of service
shall be filed with the court.
(2) Reasonable measures.--After being served with a copy of
an order pursuant to this subsection:
(A) Operators.--
(i) In general.--An operator of a
nonauthoritative domain name system server
shall take the least burdensome technically
feasible and reasonable measures designed to
prevent the domain name described in the order
from resolving to that domain name's Internet
protocol address, except that--
(I) such operator shall not be
required--
(aa) other than as directed
under this subparagraph, to
modify its network, software,
systems, or facilities;
(bb) to take any measures
with respect to domain name
lookups not performed by its
own domain name server or
domain name system servers
located outside the United
States; or
(cc) to continue to prevent
access to a domain name to
which access has been
effectively disable by other
means; and
(II) nothing in this subparagraph
shall affect the limitation on the
liability of such an operator under
section 512 of title 17, United States
Code.
(ii) Text of notice.--The Attorney General
shall prescribe the text of the notice
displayed to users or customers of an operator
taking an action pursuant to this subparagraph.
Such text shall specify that the action is
being taken pursuant to a court order obtained
by the Attorney General.
(B) Financial transaction providers.--A financial
transaction provider shall take reasonable measures, as
expeditiously as reasonable, designed to prevent,
prohibit, or suspend its service from completing
payment transactions involving customers located within
the United States and the Internet site associated with
the domain name set forth in the order.
(C) Internet advertising services.--An Internet
advertising service that contracts with the Internet
site associated with the domain name set forth in the
order to provide advertising to or for that site, or
which knowingly serves advertising to or for such site,
shall take technically feasible and reasonable
measures, as expeditiously as reasonable, designed to--
(i) prevent its service from providing
advertisements to the Internet site associated
with such domain name; or
(ii) cease making available advertisements
for that site, or paid or sponsored search
results, links or other placements that provide
access to the domain name.
(D) Information location tools.--An information
location tool shall take technically feasible and
reasonable measures, as expeditiously as possible, to--
(i) remove or disable access to the
Internet site associated with the domain name
set forth in the order; or
(ii) not serve a hypertext link to such
Internet site.
(3) Communication with users.--Except as provided under
paragraph (2)(A)(ii), an entity taking an action described in
this subsection shall determine whether and how to communicate
such action to the entity's users or customers.
(4) Rule of construction.--For purposes of an action
commenced under this section, the obligations of an entity
described in this subsection shall be limited to the actions
set out in each paragraph or subparagraph applicable to such
entity, and no order issued pursuant to this section shall
impose any additional obligations on, or require additional
actions by, such entity.
(5) Actions pursuant to court order.--
(A) Immunity from suit.--No cause of action shall
lie in any Federal or State court or administrative
agency against any entity receiving a court order
issued under this subsection, or against any director,
officer, employee, or agent thereof, for any act
reasonably designed to comply with this subsection or
reasonably arising from such order, other than in an
action pursuant to subsection (e).
(B) Immunity from liability.--Any entity receiving
an order under this subsection, and any director,
officer, employee, or agent thereof, shall not be
liable to any party for any acts reasonably designed to
comply with this subsection or reasonably arising from
such order, other than in an action pursuant to
subsection (e), and any actions taken by customers of
such entity to circumvent any restriction on access to
the Internet domain instituted pursuant to this
subsection or any act, failure, or inability to
restrict access to an Internet domain that is the
subject of a court order issued pursuant to this
subsection despite good faith efforts to do so by such
entity shall not be used by any person in any claim or
cause of action against such entity, other than in an
action pursuant to subsection (e).
(e) Enforcement of Orders.--
(1) In general.--In order to compel compliance with this
section, the Attorney General may bring an action for
injunctive relief against any party receiving a court order
issued pursuant to this section that knowingly and willfully
fails to comply with such order.
(2) Rule of construction.--The authority granted the
Attorney General under paragraph (1) shall be the sole legal
remedy for enforcing the obligations under this section of any
entity described in subsection (d).
(3) Defense.--A defendant in an action under paragraph (1)
may establish an affirmative defense by showing that the
defendant does not have the technical means to comply with the
subsection without incurring an unreasonable economic burden,
or that the order is inconsistent with this Act. This showing
shall serve as a defense only to the extent of such inability
to comply or to the extent of such inconsistency.
(f) Modification or Vacation of Orders.--
(1) In general.--At any time after the issuance of an order
under subsection (b), a motion to modify, suspend, or vacate
the order may be filed by--
(A) any person, or owner or operator of property,
bound by the order;
(B) any registrant of the domain name, or the owner
or operator of the Internet site subject to the order;
(C) any domain name registrar or registry that has
registered or assigned the domain name of the Internet
site subject to the order; or
(D) any entity that has received a copy of an order
pursuant to subsection (d) requiring such entity to
take action prescribed in that subsection.
(2) Relief.--Relief under this subsection shall be proper
if the court finds that--
(A) the Internet site associated with the domain
name subject to the order is no longer, or never was,
an Internet site dedicated to infringing activities; or
(B) the interests of justice require that the order
be modified, suspended, or vacated.
(3) Consideration.--In making a relief determination under
paragraph (2), a court may consider whether the domain name has
expired or has been re-registered by a different party.
(g) Related Actions.--The Attorney General, if alleging that an
Internet site previously adjudicated to be an Internet site dedicated
to infringing activities is accessible or has been reconstituted at a
different domain name, may commence a related action under this section
against the additional domain name in the same judicial district as the
previous action.
SEC. 4. ELIMINATING THE FINANCIAL INCENTIVE TO STEAL INTELLECTUAL
PROPERTY ONLINE.
(a) Commencement of an Action.--
(1) In personam.--A qualifying plaintiff may commence an in
personam action against--
(A) a registrant of a domain name used by an
Internet site dedicated to infringing activities; or
(B) an owner or operator of an Internet site
dedicated to infringing activities accessed through a
domain name.
(2) In rem.--If through due diligence a qualifying
plaintiff is unable to find a person described in subparagraphs
(A) or (B) of paragraph (1), or no such person found has an
address within a judicial district of the United States, the
Attorney General may commence an in rem action against a domain
name used by an Internet site dedicated to infringing
activities.
(b) Orders of the Court.--
(1) In general.--On application of a qualifying plaintiff
following the commencement of an action under this section, the
court may issue a temporary restraining order, a preliminary
injunction, or an injunction, in accordance with rule 65 of the
Federal Rules of Civil Procedure, against the domain name used
by an Internet site dedicated to infringing activities, or
against a registrant of such domain name, or the owner or
operator of such Internet site dedicated to infringing
activities, to cease and desist from undertaking any further
activity as an Internet site dedicated to infringing
activities, if--
(A) the domain name is registered or assigned by a
domain name registrar or domain name registry that
located or doing business in the United States; or
(B)(i) the domain name is used within the United
States to access such Internet site; and
(ii) the Internet site--
(I) conducts business directed to residents
of the United States; and
(II) harms holders of United States
intellectual property rights.
(2) Determination by the court.--For purposes of
determining whether an Internet site conducts business directed
to residents of the United States under paragraph
(1)(B)(ii)(I), a court may consider, among other indicia,
whether--
(A) the Internet site is providing goods or
services described in section 2(7) to users located in
the United States;
(B) there is evidence that the Internet site is not
intended to provide--
(i) such goods and services to users
located in the United States;
(ii) access to such goods and services to
users located in the United States; and
(iii) delivery of such goods and services
to users located in the United States;
(C) the Internet site has reasonable measures in
place to prevent such goods and services from being
accessed from or delivered to the United States;
(D) the Internet site offers services obtained in
the United States; and
(E) any prices for goods and services are indicated
in the currency of the United States.
(c) Notice and Service of Process.--
(1) In general.--Upon commencing an action under this
section, the qualifying plaintiff shall send a notice of the
alleged violation and intent to proceed under this Act to the
registrant of the domain name of the Internet site--
(A) at the postal and e-mail address appearing in
the applicable publicly accessible database of
registrations, if any and to the extent such addresses
are reasonably available;
(B) via the postal and e-mail address of the
registrar, registry, or other domain name registration
authority that registered or assigned the domain name,
to the extent such addresses are reasonably available;
and
(C) in any other such form as the court finds
necessary, including as may be required by Rule 4(f) of
the Federal Rules of Civil Procedure.
(2) Rule of construction.--For purposes of this section,
the actions described in this subsection shall constitute
service of process.
(d) Required Actions Based on Court Orders.--
(1) Service.--A qualifying plaintiff, with the prior
approval of the court, may, serve a copy of a court order
issued pursuant to this section on similarly situated entities
within each class described in paragraph (2). Proof of service
shall be filed with the court.
(2) Reasonable measures.--After being served with a copy of
an order pursuant to this subsection:
(A) Financial transaction providers.--A financial
transaction provider shall take reasonable measures, as
expeditiously as reasonable, designed to prevent,
prohibit, or suspend its service from completing
payment transactions involving customers located within
the United States and the Internet site associated with
the domain name set forth in the order.
(B) Internet advertising services.--An Internet
advertising service that contracts with the Internet
site associated with the domain name set forth in the
order to provide advertising to or for that site, or
which knowingly serves advertising to or for such site,
shall take technically feasible and reasonable
measures, as expeditiously as reasonable, designed to--
(i) prevent its service from providing
advertisements to the Internet site associated
with such domain name; or
(ii) cease making available advertisements
for that site, or paid or sponsored search
results, links, or placements that provide
access to the domain name.
(3) Communication with users.--An entity taking an action
described in this subsection shall determine how to communicate
such action to the entity's users or customers.
(4) Rule of construction.--For purposes of an action
commenced under this section, the obligations of an entity
described in this subsection shall be limited to the actions
set out in each paragraph or subparagraph applicable to such
entity, and no order issued pursuant to this section shall
impose any additional obligations on, or require additional
actions by, such entity.
(5) Actions pursuant to court order.--
(A) Immunity from suit.--No cause of action shall
lie in any Federal or State court or administrative
agency against any entity receiving a court order
issued under this subsection, or against any director,
officer, employee, or agent thereof, for any act
reasonably designed to comply with this subsection or
reasonably arising from such order, other than in an
action pursuant to subsection (e).
(B) Immunity from liability.--Any entity receiving
an order under this subsection, and any director,
officer, employee, or agent thereof, shall not be
liable to any party for any acts reasonably designed to
comply with this subsection or reasonably arising from
such order, other than in an action pursuant to
subsection (e), and any actions taken by customers of
such entity to circumvent any restriction on access to
the Internet domain instituted pursuant to this
subsection or any act, failure, or inability to
restrict access to an Internet domain that is the
subject of a court order issued pursuant to this
subsection despite good faith efforts to do so by such
entity shall not be used by any person in any claim or
cause of action against such entity, other than in an
action pursuant to subsection (e).
(e) Enforcement of Orders.--
(1) In general.--In order to compel compliance with this
section, the qualifying plaintiff may bring an action for
injunctive relief against any party receiving a court order
issued pursuant to this section that knowingly and willfully
fails to comply with such order.
(2) Rule of construction.--The authority granted a
qualifying plaintiff under paragraph (1) shall be the sole
legal remedy for enforcing the obligations under this section
of any entity described in subsection (d).
(3) Defense.--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 the subsection without incurring an unreasonable economic
burden, or that the order is inconsistent with this Act. This
showing shall serve as a defense only to the extent of such
inability to comply or to the extent of such inconsistency.
(f) Modification or Vacation of Orders.--
(1) In general.--At any time after the issuance of an order
under subsection (b), a motion to modify, suspend, or vacate
the order may be filed by--
(A) any person, or owner or operator of property,
bound by the order;
(B) any registrant of the domain name, or the owner
or operator of the Internet site subject to the order;
(C) any domain name registrar or registry that has
registered or assigned the domain name of the Internet
site subject to the order; or
(D) any entity that has received a copy of an order
pursuant to subsection (d) requiring such entity to
take action prescribed in that subsection.
(2) Relief.--Relief under this subsection shall be proper
if the court finds that--
(A) the Internet site associated with the domain
name subject to the order is no longer, or never was,
dedicated to infringing activities as defined in this
Act; or
(B) the interests of justice require that the order
be modified, suspended, or vacated.
(3) Consideration.--In making a relief determination under
paragraph (2), a court may consider whether the domain name has
expired or has been re-registered by a different party.
(g) Related Actions.--A qualifying plaintiff, if alleging that an
Internet site previously adjudicated to be an Internet site dedicated
to infringing activities is accessible or has been reconstituted at a
different domain name, may commence a related action under this section
against the additional domain name in the same judicial district as the
previous action.
SEC. 5. VOLUNTARY ACTION AGAINST WEBSITES STEALING AMERICAN
INTELLECTUAL PROPERTY.
(a) In General.--No financial transaction provider or Internet
advertising service shall be liable for damages to any person for
voluntarily taking any action described in section 3(d) or 4(d) with
regard to an Internet site if the entity acting in good faith and based
on credible evidence has a reasonable belief that the Internet site is
an Internet site dedicated to infringing activities.
(b) Internet Sites Engaged in Infringing Activities That Endanger
the Public Health.--
(1) Refusal of service.--A domain name registry, domain
name registrar, financial transaction provider, information
location tool, or Internet advertising service, acting in good
faith and based on credible evidence, may stop providing or
refuse to provide services to an infringing Internet site that
endangers the public health.
(2) Immunity from liability.--An entity described in
paragraph (1), including its directors, officers, employees, or
agents, that ceases or refused to provide services under
paragraph (1) shall not be liable to any party under any
Federal or State law for such action.
(3) Definitions.--For purposes of this subsection--
(A) the term ``adulterated'' has the same meaning
as in section 501 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 351);
(B) an ``infringing Internet site that endangers
the public health'' means--
(i) an Internet site dedicated to
infringing activities for which the counterfeit
products that it offers, sells, dispenses, or
distributes are controlled or non-controlled
prescription medication; or
(ii) an Internet site that has no
significant use other than, or is designed,
operated, or marketed by its operator or
persons operating in concert with the operator,
and facts or circumstances suggest is used,
primarily as a means for--
(I) offering, selling, dispensing,
or distributing any controlled or non-
controlled prescription medication, and
does so regularly without a valid
prescription; or
(II) offering, selling, dispensing,
or distributing any controlled or non-
controlled prescription medication, and
does so regularly for medication that
is adulterated or misbranded;
(C) the term ``misbranded'' has the same meaning as
in section 502 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 352); and
(D) the term ``valid prescription'' has the same
meaning as in section 309(e)(2)(A) of the Controlled
Substances Act (21 U.S.C. 829(e)(2)(A)).
SEC. 6. SAVINGS CLAUSES.
(a) Rule of Construction Relating to Civil and Criminal Remedies.--
Nothing in this Act shall be construed to limit or expand civil or
criminal remedies available to any person (including the United States)
for infringing activities on the Internet pursuant to any other Federal
or State law.
(b) Rule of Construction Relating to Vicarious or Contributory
Liability.--Nothing in this Act shall be construed to enlarge or
diminish vicarious or contributory liability for any cause of action
available under title 17, United States Code, including any limitations
on liability under section 512 of such title 17, or to create an
obligation to take action pursuant to section 5 of this Act.
(c) Relationship With Section 512 of Title 17.--Nothing in this
Act, and no order issued or served pursuant to sections 3 or 4 of this
Act, shall serve as a basis for determining the application of section
512 of title 17, United States Code.
SEC. 7. GUIDELINES AND STUDIES.
(a) Guidelines.--The Attorney General shall--
(1) publish procedures developed in consultation with other
relevant law enforcement agencies, including the United States
Immigration and Customs Enforcement, to receive information
from the public about Internet sites dedicated to infringing
activities;
(2) provide guidance to intellectual property rights
holders about what information such rights holders should
provide law enforcement agencies to initiate an investigation
pursuant to this Act;
(3) provide guidance to intellectual property rights
holders about how to supplement an ongoing investigation
initiated pursuant to this Act;
(4) establish standards for prioritization of actions
brought under this Act;
(5) provide appropriate resources and procedures for case
management and development to affect timely disposition of
actions brought under this Act; and
(6) develop a deconfliction process in consultation with
other law enforcement agencies, including the United States
Immigration and Customs Enforcement, to coordinate enforcement
activities brought under this Act.
(b) Reports.--
(1) Report on effectiveness of certain measures.--Not later
than 1 year after the date of enactment of this Act, the
Secretary of Commerce, in coordination with the Attorney
General, the Secretary of Homeland Security, and the
Intellectual Property Enforcement Coordinator, shall conduct a
study and report to the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of
Representatives on the following:
(A) An assessment of the effects, if any, of the
implementation of section 3(d)(2)(A) on the
accessibility of Internet sites dedicated to infringing
activity.
(B) An assessment of the effects, if any, of the
implementation of section 3(d)(2)(A) on the deployment,
security, and reliability of the domain name system and
associated Internet processes, including Domain Name
System Security Extensions.
(C) Recommendations, if any, for modifying or
amending this Act to increase effectiveness or
ameliorate any unintended effects of section
3(d)(2)(A).
(2) Report on overall effectiveness.--The Register of
Copyrights shall, in consultation with the appropriate
departments and agencies of the United States and other
stakeholders--
(A) conduct a study on--
(i) the enforcement and effectiveness of
this Act; and
(ii) the need to modify or amend this Act
to apply to emerging technologies; and
(B) not later than 2 years after the date of
enactment of this Act, submit a report to the Committee
on the Judiciary of the Senate and the Committee on the
Judiciary of the House of Representatives on--
(i) the results of the study conducted
under subparagraph (A); and
(ii) any recommendations that the Register
may have as a result of the study.
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