[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 968 Reported in Senate (RS)]
Calendar No. 70
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, Mr. Franken, Mr. Blunt, Mr. Alexander, Mrs.
Gillibrand, and Mr. Rubio) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
May 26, 2011
Reported by Mr. Leahy, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
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,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> 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''.</DELETED>
<DELETED>SEC. 2. DEFINITIONS.</DELETED>
<DELETED> For purposes of this Act--</DELETED>
<DELETED> (1) the term ``domain name'' has the same meaning
as in section 45 of the Lanham Act (15 U.S.C. 1127);</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (3) the term ``financial transaction provider''
has the same meaning as in section 5362(4) of title 31, United
States Code;</DELETED>
<DELETED> (4) the term ``information location tool'' has the
same meaning as described in subsection (d) of section 512 of
title 17, United States Code;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (7) the term ``Internet site dedicated to
infringing activities'' means an Internet site that--</DELETED>
<DELETED> (A) has no significant use other than
engaging in, enabling, or facilitating the--</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (ii) violation of section 1201 of
title 17, United States Code; or</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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);</DELETED>
<DELETED> (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'');</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (11) the term ``qualifying plaintiff'' means--
</DELETED>
<DELETED> (A) the Attorney General of the United
States; or</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 3. ENHANCING ENFORCEMENT AGAINST ROGUE WEBSITES OPERATED
AND REGISTERED OVERSEAS.</DELETED>
<DELETED> (a) Commencement of an Action.--</DELETED>
<DELETED> (1) In personam.--The Attorney General may
commence an in personam action against--</DELETED>
<DELETED> (A) a registrant of a nondomestic domain
name used by an Internet site dedicated to infringing
activities; or</DELETED>
<DELETED> (B) an owner or operator of an Internet
site dedicated to infringing activities accessed
through a nondomestic domain name.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) Orders of the Court.--</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) the domain name is used within the
United States to access such Internet site;
and</DELETED>
<DELETED> (B) the Internet site--</DELETED>
<DELETED> (i) conducts business directed to
residents of the United States; and</DELETED>
<DELETED> (ii) harms holders of United
States intellectual property rights.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) the Internet site is providing goods
or services described in section 2(7) to users located
in the United States;</DELETED>
<DELETED> (B) there is evidence that the Internet
site is not intended to provide--</DELETED>
<DELETED> (i) such goods and services to
users located in the United States;</DELETED>
<DELETED> (ii) access to such goods and
services to users located in the United States;
and</DELETED>
<DELETED> (iii) delivery of such goods and
services to users located in the United
States;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (D) the Internet site offers services
obtained in the United States; and</DELETED>
<DELETED> (E) any prices for goods and services are
indicated in the currency of the United
States.</DELETED>
<DELETED> (c) Notice and Service of Process.--</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Rule of construction.--For purposes of this
section, the actions described in this subsection shall
constitute service of process.</DELETED>
<DELETED> (d) Required Actions Based on Court Orders.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Reasonable measures.--After being served with
a copy of an order pursuant to this subsection:</DELETED>
<DELETED> (A) Operators.--</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (I) such operator shall
not be required--</DELETED>
<DELETED> (aa) other than as
directed under this
subparagraph, to modify its
network, software, systems, or
facilities;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (cc) to continue
to prevent access to a domain
name to which access has been
effectively disable by other
means; and</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (i) prevent its service from
providing advertisements to the Internet site
associated with such domain name; or</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (D) Information location tools.--An
information location tool shall take technically
feasible and reasonable measures, as expeditiously as
possible, to--</DELETED>
<DELETED> (i) remove or disable access to
the Internet site associated with the domain
name set forth in the order; or</DELETED>
<DELETED> (ii) not serve a hypertext link to
such Internet site.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (5) Actions pursuant to court order.--</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (e) Enforcement of Orders.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (f) Modification or Vacation of Orders.--</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) any person, or owner or operator of
property, bound by the order;</DELETED>
<DELETED> (B) any registrant of the domain name, or
the owner or operator of the Internet site subject to
the order;</DELETED>
<DELETED> (C) any domain name registrar or registry
that has registered or assigned the domain name of the
Internet site subject to the order; or</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Relief.--Relief under this subsection shall be
proper if the court finds that--</DELETED>
<DELETED> (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</DELETED>
<DELETED> (B) the interests of justice require that
the order be modified, suspended, or vacated.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 4. ELIMINATING THE FINANCIAL INCENTIVE TO STEAL
INTELLECTUAL PROPERTY ONLINE.</DELETED>
<DELETED> (a) Commencement of an Action.--</DELETED>
<DELETED> (1) In personam.--A qualifying plaintiff may
commence an in personam action against--</DELETED>
<DELETED> (A) a registrant of a domain name used by
an Internet site dedicated to infringing activities;
or</DELETED>
<DELETED> (B) an owner or operator of an Internet
site dedicated to infringing activities accessed
through a domain name.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) Orders of the Court.--</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (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</DELETED>
<DELETED> (B)(i) the domain name is used within the
United States to access such Internet site;
and</DELETED>
<DELETED> (ii) the Internet site--</DELETED>
<DELETED> (I) conducts business directed to
residents of the United States; and</DELETED>
<DELETED> (II) harms holders of United
States intellectual property rights.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) the Internet site is providing goods
or services described in section 2(7) to users located
in the United States;</DELETED>
<DELETED> (B) there is evidence that the Internet
site is not intended to provide--</DELETED>
<DELETED> (i) such goods and services to
users located in the United States;</DELETED>
<DELETED> (ii) access to such goods and
services to users located in the United States;
and</DELETED>
<DELETED> (iii) delivery of such goods and
services to users located in the United
States;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (D) the Internet site offers services
obtained in the United States; and</DELETED>
<DELETED> (E) any prices for goods and services are
indicated in the currency of the United
States.</DELETED>
<DELETED> (c) Notice and Service of Process.--</DELETED>
<DELETED> (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--
</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Rule of construction.--For purposes of this
section, the actions described in this subsection shall
constitute service of process.</DELETED>
<DELETED> (d) Required Actions Based on Court Orders.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Reasonable measures.--After being served with
a copy of an order pursuant to this subsection:</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (i) prevent its service from
providing advertisements to the Internet site
associated with such domain name; or</DELETED>
<DELETED> (ii) cease making available
advertisements for that site, or paid or
sponsored search results, links, or placements
that provide access to the domain
name.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (5) Actions pursuant to court order.--</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (e) Enforcement of Orders.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (f) Modification or Vacation of Orders.--</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) any person, or owner or operator of
property, bound by the order;</DELETED>
<DELETED> (B) any registrant of the domain name, or
the owner or operator of the Internet site subject to
the order;</DELETED>
<DELETED> (C) any domain name registrar or registry
that has registered or assigned the domain name of the
Internet site subject to the order; or</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (2) Relief.--Relief under this subsection shall be
proper if the court finds that--</DELETED>
<DELETED> (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</DELETED>
<DELETED> (B) the interests of justice require that
the order be modified, suspended, or vacated.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 5. VOLUNTARY ACTION AGAINST WEBSITES STEALING AMERICAN
INTELLECTUAL PROPERTY.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) Internet Sites Engaged in Infringing Activities That
Endanger the Public Health.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (3) Definitions.--For purposes of this
subsection--</DELETED>
<DELETED> (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);</DELETED>
<DELETED> (B) an ``infringing Internet site that
endangers the public health'' means--</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (I) offering, selling,
dispensing, or distributing any
controlled or non-controlled
prescription medication, and does so
regularly without a valid prescription;
or</DELETED>
<DELETED> (II) offering, selling,
dispensing, or distributing any
controlled or non-controlled
prescription medication, and does so
regularly for medication that is
adulterated or misbranded;</DELETED>
<DELETED> (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</DELETED>
<DELETED> (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)).</DELETED>
<DELETED>SEC. 6. SAVINGS CLAUSES.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED>SEC. 7. GUIDELINES AND STUDIES.</DELETED>
<DELETED> (a) Guidelines.--The Attorney General shall--</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (3) provide guidance to intellectual property
rights holders about how to supplement an ongoing investigation
initiated pursuant to this Act;</DELETED>
<DELETED> (4) establish standards for prioritization of
actions brought under this Act;</DELETED>
<DELETED> (5) provide appropriate resources and procedures
for case management and development to affect timely
disposition of actions brought under this Act; and</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (b) Reports.--</DELETED>
<DELETED> (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:</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (C) Recommendations, if any, for modifying
or amending this Act to increase effectiveness or
ameliorate any unintended effects of section
3(d)(2)(A).</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) conduct a study on--</DELETED>
<DELETED> (i) the enforcement and
effectiveness of this Act; and</DELETED>
<DELETED> (ii) the need to modify or amend
this Act to apply to emerging technologies;
and</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (i) the results of the study
conducted under subparagraph (A); and</DELETED>
<DELETED> (ii) any recommendations that the
Register may have as a result of the
study.</DELETED>
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.
(3) Identification of entities.--Any action commenced by
the Attorney General under this section shall identify the
entities which may be required to take actions pursuant to
subsection (d) if an order issues pursuant to subsection (b).
(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.
(3) Other notice.--Upon commencing an action under this
section, the Attorney General shall also provide notice to
entities identified in the complaint, or any amendments
thereto, which may be required to take action pursuant to
subsection (d).
(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), which have been
identified in the complaint, or any amendments thereto,
pursuant to subsection (a). 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 service
provider of 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.
(4) Intervention.--An entity identified pursuant to
subsection (a) as an entity which may be required to take
action pursuant to subsection (d) if an order issues pursuant
to subsection (b) may intervene at any time in any action
commenced under subsection (a), or in any action to modify,
suspend, or vacate an order pursuant to this subsection.
Failure to intervene in an action does not prohibit an entity
notified of the action from subsequently seeking an order to
modify, suspend, or terminate an order issued by the court
under this Act.
(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
qualifying plaintiff may commence an in rem action against a
domain name used by an Internet site dedicated to infringing
activities.
(3) Identification of entities.--Any action commenced by a
qualifying plaintiff under this section shall identify the
entities which may be required to take actions pursuant to
subsection (d) if an order issues pursuant to subsection (b).
(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.
(3) Other notice.--Upon commencing an action under this
section, the qualifying plaintiff shall also provide notice to
entities identified in the complaint, or any amendments
thereto, which may be required to take action pursuant to
subsection (d).
(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), which have been
identified in the complaint, or any amendments thereto,
pursuant to subsection (a). 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.
(4) Intervention.--An entity identified pursuant to
subsection (a) as an entity which may be required to take
action pursuant to subsection (d) if an order issues pursuant
to subsection (b) may intervene at any time in any action
commenced under subsection (a), or in any action to modify,
suspend, or vacate an order pursuant to this subsection.
Failure to intervene in an action does not prohibit an entity
notified of the action from subsequently seeking an order to
modify, suspend, or terminate an order issued by the court
under this Act.
(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 the Lanham Act or 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, no identification of entities in section 3(a) or 4(a), no notice
provided pursuant to section 3(c) or 4(c), no order issued pursuant to
sections 3(b) or 4(b), and no order issued or served pursuant to
sections 3(d) or 4(d), 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; and
(2) 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;
(ii) the burden of carrying out the
requirements of this Act, if any, on
intermediaries;
(iii) the need for cost reimbursement for
intermediaries for carrying out the
requirements of this Act; and
(iv) 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.
(3) Annual oversight report.--Not later than 1 year after
the date of enactment of this Act, and each year thereafter,
the Attorney General shall report to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of
the House of Representatives the following information with
respect to the preceding year:
(A) Each instance in which an action was commenced
under section 3(a)(1) or 3(a)(2), and each instance in
which an action was commenced by the Attorney General
under section 4(a)(1) or 4(a)(2), including the name of
any party against whom the action was brought.
(B) Each instance in which a temporary restraining
order, preliminary injunction or injunction was issued
pursuant to section 3(b)(1), and each instance in which
a temporary restraining order, preliminary injunction
or injunction was issued pursuant to section 4(b)(1) in
an action commenced by the Attorney General, including
the name of any party against whom the order or
injunction was issued.
(C) Each instance in which an action commenced
under section 3(a)(1) or 3(a)(2), or an action
commenced by the Attorney General under section 4(a)(1)
or 4(a)(2), was concluded without the issuance of a
temporary restraining order, preliminary injunction or
injunction, including the reason for the conclusion of
the action.
(D) Each proof of service filed with the court
pursuant to section 3(d)(1), or filed pursuant to
section 4(d)(1) in an action commenced by the Attorney
General.
(E) Each action for injunctive relief brought
pursuant to section 3(e), or brought pursuant to
section 4(e) in an action commenced by the Attorney
General, including the name of any party against whom
the action for relief was brought.
(F) Each motion granted by a court to modify,
suspend or vacate an order that was filed under section
3(f)(1), or filed under section 4(f)(1) in an action
commenced by the Attorney General, including the relief
obtained.
(G) Each related action commenced pursuant to
section 3(g), or commenced by the Attorney General
pursuant to section 4(g), including the name of any
party against whom an action was commenced.
(4) GAO report on private actions.--Not later than 1 year
after the date of enactment of this Act, and each year
thereafter, the Comptroller General shall report to the
Committee on the Judiciary of the Senate and the Committee on
the Judiciary of the House of Representative each instance in
the previous year in which an action was commenced under
sections 4(a)(1) or 4(a)(2) by a qualifying plaintiff that is
not the Attorney General, including the names of any parties to
each such action.
SEC. 8. PREVENTING THE IMPORTATION OF COUNTERFEIT PRODUCTS AND
INFRINGING DEVICES.
Notwithstanding section 1905 of title 18, United States Code--
(1) if United States Customs and Border Protection suspects
a product of being imported or exported in violation of section
42 of the Lanham Act, and subject to any applicable bonding
requirements, the Secretary of Homeland Security is authorized
to share information on, and unredacted samples of, products
and their packaging and labels, or photos of such products,
packaging and labels, with the rightholders of the trademark
suspected of being copied or simulated, for purposes of
determining whether the products are prohibited from
importation pursuant to such section; and
(2) upon seizure of material by United States Customs and
Border Protection imported in violation of subsection (a)(2) or
subsection (b) of section 1201 of title 17, United States Code,
the Secretary of Homeland Security is authorized to share
information about, and provide samples to affected parties,
subject to any applicable bonding requirements, as to the
seizure of material designed to circumvent technological
measures or protection afforded by a technological measure that
controls access to or protects the owner's work protected by
copyright under such title.
Calendar No. 70
112th CONGRESS
1st Session
S. 968
_______________________________________________________________________
A BILL
To prevent online threats to economic creativity and theft of
intellectual property, and for other purposes.
_______________________________________________________________________
May 26, 2011
Reported with an amendment