[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