[Congressional Record Volume 157, Number 65 (Thursday, May 12, 2011)]
[Senate]
[Pages S2936-S2941]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Hatch, Mr. Grassley, Mr. Schumer, 
        Mrs. Feinstein, Mr. Whitehouse, Mr. Graham, Mr. Kohl, Mr. 
        Coons, Mr. Blumenthal, Ms. Klobuchar, and Mr. Franken):
  S. 968. A bill to prevent online threats to economic creativity and 
theft of intellectual property, and for other purposes; to the 
Committee on the Judiciary.
  Mr. LEAHY. Mr. President, few things are more important to the future 
of the American economy and job creation than protecting our 
intellectual property. At a time where our country is beginning to 
regain its economic footing, businesses face an additional hurdle, the 
severity of which is increasing by the day--digital theft.
  Copyright infringement and the sale of counterfeit goods are reported 
to cost American businesses billions of dollars, and result in hundreds 
of thousands of lost jobs. Further, the Institute for Policy Innovation 
estimates that copyright piracy online alone costs Federal, state and 
local governments $2.6 billion in tax revenue. In today's business and 
fiscal climate, the harm that intellectual property infringement causes 
to the U.S. economy is unacceptable.
  While the growth of the digital marketplace has been extraordinary, 
and benefits businesses by enabling new opportunities to reach 
consumers, it also brings with it the threat of copyright infringement 
and counterfeiting. Internet purchases have become so commonplace that 
consumers are less wary of online shopping and therefore more easily 
victimized by online counterfeit products that may have health, safety 
or other quality concerns when they are counterfeit.
  Today, I am introducing the bipartisan PROTECT IP Act, which is based 
on last year's Combating Online Infringements and Counterfeits Act. It 
will provide the Justice Department

[[Page S2937]]

and rights holders with important new tools to crack down on rogue 
websites dedicated to infringing activities. This legislation will 
protect the investment American companies make in developing brands and 
creating content and will protect the jobs associated with those 
investments. It will also protect American consumers, who should feel 
confident that the goods they purchase are of the type and quality they 
expect.
  Both law enforcement and rights holders are currently limited in the 
remedies available to combat websites dedicated to offering infringing 
content and products. These rogue websites are often foreign-owned and 
operated, or reside at domain names that are not registered through a 
U.S.-based registry or registrar. American consumers are too often 
deceived into thinking the products they are purchasing at these 
websites are legitimate because they are easily accessed through their 
home's Internet service provider, found through well known search 
engines, and are complete with corporate advertising, credit card 
acceptance, and advertising links that make them appear legitimate.
  The PROTECT IP Act authorizes the Justice Department to file a civil 
action against the registrant or owner of a domain name that accesses a 
foreign rogue website, or the foreign-registered domain name itself, 
and to seek a preliminary order from the court that the site is 
dedicated to infringing activities. The court is authorized to issue a 
cease and desist order against a rogue website. If the court issues 
that order, the Attorney General is authorized to serve that order, 
with permission of the court, on specified U.S. based third-parties, 
including Internet service providers, payment processors, online 
advertising network providers, and search engines. These third parties 
would then be required to take appropriate action to either prevent 
access to the Internet site, in the case of an Internet service 
provider or search engine, or cease doing business with the Internet 
site, in the case of a payment processor or advertising network.
  The act authorizes a rights holder who is the victim of the 
infringement from a rogue website to bring a similar action against the 
rogue site, whether domestic or foreign. If the court issues a cease 
and desist order, the rights holder is authorized to serve that order, 
if authorized by the court, on payment processors and online 
advertising networks, to cut off the financial viability of the 
criminal activity.
  The legislation will also encourage voluntary action by Internet 
partners that have credible evidence a rogue website is threatening the 
public health by trafficking in counterfeit, adulterated, or misbranded 
prescription medication.
  Finally, the PROTECT IP Act will help law enforcement identify and 
prevent counterfeit products from being imported into the United States 
by ensuring law enforcement can share samples of packaging or labels of 
suspected counterfeits with the relevant rights holders to determine 
whether the shipment should be seized at the border. Similarly, it 
ensures that law enforcement can share anti-circumvention devices that 
have been seized with affected parties.
  This legislation will provide law enforcement and rights holders with 
an increased ability to protect American intellectual property. This 
will benefit American consumers, American businesses, and American 
jobs. We should not expect that enactment of the legislation will 
completely solve the problem of online infringement, but it will make 
it more difficult for foreign entities to profit off American hard work 
and ingenuity. This bill targets the most egregious actors, and is an 
important first step to putting a stop to online piracy and sale of 
counterfeit goods.
  Protecting intellectual property is not uniquely a Democratic or 
Republican priority it is a bipartisan priority. I look forward to 
working with all Senators to pass this important, bipartisan 
legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 968

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Preventing Real Online 
     Threats to Economic Creativity and Theft of Intellectual 
     Property Act of 2011'' or the ``PROTECT IP Act of 2011''.

     SEC. 2. DEFINITIONS.

       For purposes of this Act--
       (1) the term ``domain name'' has the same meaning as in 
     section 45 of the Lanham Act (15 U.S.C. 1127);
       (2) the term ``domain name system server'' means a server 
     or other mechanism used to provide the Internet protocol 
     address associated with a domain name;
       (3) the term ``financial transaction provider'' has the 
     same meaning as in section 5362(4) of title 31, United States 
     Code;
       (4) the term ``information location tool'' has the same 
     meaning as described in subsection (d) of section 512 of 
     title 17, United States Code;
       (5) the term ``Internet advertising service'' means a 
     service that for compensation sells, purchases, brokers, 
     serves, inserts, verifies, or clears the placement of an 
     advertisement, including a paid or sponsored search result, 
     link, or placement that is rendered in viewable form for any 
     period of time on an Internet site;
       (6) the term ``Internet site'' means the collection of 
     digital assets, including links, indexes, or pointers to 
     digital assets, accessible through the Internet that are 
     addressed relative to a common domain name;
       (7) the term ``Internet site dedicated to infringing 
     activities'' means an Internet site that--
       (A) has no significant use other than engaging in, 
     enabling, or facilitating the--
       (i) reproduction, distribution, or public performance of 
     copyrighted works, in complete or substantially complete 
     form, in a manner that constitutes copyright infringement 
     under section 501 of title 17, United States Code;
       (ii) violation of section 1201 of title 17, United States 
     Code; or
       (iii) sale, distribution, or promotion of goods, services, 
     or materials bearing a counterfeit mark, as that term is 
     defined in section 34(d) of the Lanham Act; or
       (B) is designed, operated, or marketed by its operator or 
     persons operating in concert with the operator, and facts or 
     circumstances suggest is used, primarily as a means for 
     engaging in, enabling, or facilitating the activities 
     described under clauses (i), (ii), or (iii) of subparagraph 
     (A);
       (8) the term ``Lanham Act'' means the Act entitled ``An Act 
     to provide for the registration and protection of trademarks 
     used in commerce, to carry out the provisions of certain 
     international conventions, and for other purposes'', approved 
     July 5, 1946 (commonly referred to as the ``Trademark Act of 
     1946'' or the ``Lanham Act'');
       (9) the term ``nondomestic domain name'' means a domain 
     name for which the domain name registry that issued the 
     domain name and operates the relevant top level domain, and 
     the domain name registrar for the domain name, are not 
     located in the United States;
       (10) the term ``owner'' or ``operator'' when used in 
     connection with an Internet site shall include, respectively, 
     any owner of a majority interest in, or any person with 
     authority to operate, such Internet site; and
       (11) the term ``qualifying plaintiff'' means--
       (A) the Attorney General of the United States; or
       (B) an owner of an intellectual property right, or one 
     authorized to enforce such right, harmed by the activities of 
     an Internet site dedicated to infringing activities occurring 
     on that Internet site.

     SEC. 3. ENHANCING ENFORCEMENT AGAINST ROGUE WEBSITES OPERATED 
                   AND REGISTERED OVERSEAS.

       (a) Commencement of an Action.--
       (1) In personam.--The Attorney General may commence an in 
     personam action against--
       (A) a registrant of a nondomestic domain name used by an 
     Internet site dedicated to infringing activities; or
       (B) an owner or operator of an Internet site dedicated to 
     infringing activities accessed through a nondomestic domain 
     name.
       (2) In rem.--If through due diligence the Attorney General 
     is unable to find a person described in subparagraphs (A) or 
     (B) of paragraph (1), or no such person found has an address 
     within a judicial district of the United States, the Attorney 
     General may commence an in rem action against a nondomestic 
     domain name used by an Internet site dedicated to infringing 
     activities.
       (b) Orders of the Court.--
       (1) In general.--On application of the Attorney General 
     following the commencement of an action under this section, 
     the court may issue a temporary restraining order, a 
     preliminary injunction, or an injunction, in accordance with 
     rule 65 of the Federal Rules of Civil Procedure, against the 
     nondomestic domain name used by an Internet site dedicated to 
     infringing activities, or against a registrant of such domain 
     name, or the owner or operator of such Internet site 
     dedicated to infringing activities, to cease and desist from 
     undertaking any further activity as an Internet site 
     dedicated to infringing activities, if--
       (A) the domain name is used within the United States to 
     access such Internet site; and
       (B) the Internet site--

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       (i) conducts business directed to residents of the United 
     States; and
       (ii) harms holders of United States intellectual property 
     rights.
       (2) Determination by the court.--For purposes of 
     determining whether an Internet site conducts business 
     directed to residents of the United States under paragraph 
     (1)(B)(i), a court may consider, among other indicia, 
     whether--
       (A) the Internet site is providing goods or services 
     described in section 2(7) to users located in the United 
     States;
       (B) there is evidence that the Internet site is not 
     intended to provide--
       (i) such goods and services to users located in the United 
     States;
       (ii) access to such goods and services to users located in 
     the United States; and
       (iii) delivery of such goods and services to users located 
     in the United States;
       (C) the Internet site has reasonable measures in place to 
     prevent such goods and services from being accessed from or 
     delivered to the United States;
       (D) the Internet site offers services obtained in the 
     United States; and
       (E) any prices for goods and services are indicated in the 
     currency of the United States.
       (c) Notice and Service of Process.--
       (1) In general.--Upon commencing an action under this 
     section, the Attorney General shall send a notice of the 
     alleged violation and intent to proceed under this Act to the 
     registrant of the domain name of the Internet site--
       (A) at the postal and e-mail address appearing in the 
     applicable publicly accessible database of registrations, if 
     any and to the extent such addresses are reasonably 
     available;
       (B) via the postal and e-mail address of the registrar, 
     registry, or other domain name registration authority that 
     registered or assigned the domain name, to the extent such 
     addresses are reasonably available; and
       (C) in any other such form as the court finds necessary, 
     including as may be required by Rule 4(f) of the Federal 
     Rules of Civil Procedure.
       (2) Rule of construction.--For purposes of this section, 
     the actions described in this subsection shall constitute 
     service of process.
       (d) Required Actions Based on Court Orders.--
       (1) Service.--A Federal law enforcement officer, with the 
     prior approval of the court, may serve a copy of a court 
     order issued pursuant to this section on similarly situated 
     entities within each class described in paragraph (2). Proof 
     of service shall be filed with the court.
       (2) Reasonable measures.--After being served with a copy of 
     an order pursuant to this subsection:
       (A) Operators.--
       (i) In general.--An operator of a nonauthoritative domain 
     name system server shall take the least burdensome 
     technically feasible and reasonable measures designed to 
     prevent the domain name described in the order from resolving 
     to that domain name's Internet protocol address, except 
     that--

       (I) such operator shall not be required--

       (aa) other than as directed under this subparagraph, to 
     modify its network, software, systems, or facilities;
       (bb) to take any measures with respect to domain name 
     lookups not performed by its own domain name server or domain 
     name system servers located outside the United States; or
       (cc) to continue to prevent access to a domain name to 
     which access has been effectively disable by other means; and

       (II) nothing in this subparagraph shall affect the 
     limitation on the liability of such an operator under section 
     512 of title 17, United States Code.

       (ii) Text of notice.--The Attorney General shall prescribe 
     the text of the notice displayed to users or customers of an 
     operator taking an action pursuant to this subparagraph. Such 
     text shall specify that the action is being taken pursuant to 
     a court order obtained by the Attorney General.
       (B) Financial transaction providers.--A financial 
     transaction provider shall take reasonable measures, as 
     expeditiously as reasonable, designed to prevent, prohibit, 
     or suspend its service from completing payment transactions 
     involving customers located within the United States and the 
     Internet site associated with the domain name set forth in 
     the order.
       (C) Internet advertising services.--An Internet advertising 
     service that contracts with the Internet site associated with 
     the domain name set forth in the order to provide advertising 
     to or for that site, or which knowingly serves advertising to 
     or for such site, shall take technically feasible and 
     reasonable measures, as expeditiously as reasonable, designed 
     to--
       (i) prevent its service from providing advertisements to 
     the Internet site associated with such domain name; or
       (ii) cease making available advertisements for that site, 
     or paid or sponsored search results, links or other 
     placements that provide access to the domain name.
       (D) Information location tools.--An information location 
     tool shall take technically feasible and reasonable measures, 
     as expeditiously as possible, to--
       (i) remove or disable access to the Internet site 
     associated with the domain name set forth in the order; or
       (ii) not serve a hypertext link to such Internet site.
       (3) Communication with users.--Except as provided under 
     paragraph (2)(A)(ii), an entity taking an action described in 
     this subsection shall determine whether and how to 
     communicate such action to the entity's users or customers.
       (4) Rule of construction.--For purposes of an action 
     commenced under this section, the obligations of an entity 
     described in this subsection shall be limited to the actions 
     set out in each paragraph or subparagraph applicable to such 
     entity, and no order issued pursuant to this section shall 
     impose any additional obligations on, or require additional 
     actions by, such entity.
       (5) Actions pursuant to court order.--
       (A) Immunity from suit.--No cause of action shall lie in 
     any Federal or State court or administrative agency against 
     any entity receiving a court order issued under this 
     subsection, or against any director, officer, employee, or 
     agent thereof, for any act reasonably designed to comply with 
     this subsection or reasonably arising from such order, other 
     than in an action pursuant to subsection (e).
       (B) Immunity from liability.--Any entity receiving an order 
     under this subsection, and any director, officer, employee, 
     or agent thereof, shall not be liable to any party for any 
     acts reasonably designed to comply with this subsection or 
     reasonably arising from such order, other than in an action 
     pursuant to subsection (e), and any actions taken by 
     customers of such entity to circumvent any restriction on 
     access to the Internet domain instituted pursuant to this 
     subsection or any act, failure, or inability to restrict 
     access to an Internet domain that is the subject of a court 
     order issued pursuant to this subsection despite good faith 
     efforts to do so by such entity shall not be used by any 
     person in any claim or cause of action against such entity, 
     other than in an action pursuant to subsection (e).
       (e) Enforcement of Orders.--
       (1) In general.--In order to compel compliance with this 
     section, the Attorney General may bring an action for 
     injunctive relief against any party receiving a court order 
     issued pursuant to this section that knowingly and willfully 
     fails to comply with such order.
       (2) Rule of construction.--The authority granted the 
     Attorney General under paragraph (1) shall be the sole legal 
     remedy for enforcing the obligations under this section of 
     any entity described in subsection (d).
       (3) Defense.--A defendant in an action under paragraph (1) 
     may establish an affirmative defense by showing that the 
     defendant does not have the technical means to comply with 
     the subsection without incurring an unreasonable economic 
     burden, or that the order is inconsistent with this Act. This 
     showing shall serve as a defense only to the extent of such 
     inability to comply or to the extent of such inconsistency.
       (f) Modification or Vacation of Orders.--
       (1) In general.--At any time after the issuance of an order 
     under subsection (b), a motion to modify, suspend, or vacate 
     the order may be filed by--
       (A) any person, or owner or operator of property, bound by 
     the order;
       (B) any registrant of the domain name, or the owner or 
     operator of the Internet site subject to the order;
       (C) any domain name registrar or registry that has 
     registered or assigned the domain name of the Internet site 
     subject to the order; or
       (D) any entity that has received a copy of an order 
     pursuant to subsection (d) requiring such entity to take 
     action prescribed in that subsection.
       (2) Relief.--Relief under this subsection shall be proper 
     if the court finds that--
       (A) the Internet site associated with the domain name 
     subject to the order is no longer, or never was, an Internet 
     site dedicated to infringing activities; or
       (B) the interests of justice require that the order be 
     modified, suspended, or vacated.
       (3) Consideration.--In making a relief determination under 
     paragraph (2), a court may consider whether the domain name 
     has expired or has been re-registered by a different party.
       (g) Related Actions.--The Attorney General, if alleging 
     that an Internet site previously adjudicated to be an 
     Internet site dedicated to infringing activities is 
     accessible or has been reconstituted at a different domain 
     name, may commence a related action under this section 
     against the additional domain name in the same judicial 
     district as the previous action.

     SEC. 4. ELIMINATING THE FINANCIAL INCENTIVE TO STEAL 
                   INTELLECTUAL PROPERTY ONLINE.

       (a) Commencement of an Action.--
       (1) In personam.--A qualifying plaintiff may commence an in 
     personam action against--
       (A) a registrant of a domain name used by an Internet site 
     dedicated to infringing activities; or
       (B) an owner or operator of an Internet site dedicated to 
     infringing activities accessed through a domain name.
       (2) In rem.--If through due diligence a qualifying 
     plaintiff is unable to find a person described in 
     subparagraphs (A) or (B) of paragraph (1), or no such person 
     found has an address within a judicial district of the United 
     States, the Attorney General may commence an in rem action 
     against a domain name used by an Internet site dedicated to 
     infringing activities.
       (b) Orders of the Court.--
       (1) In general.--On application of a qualifying plaintiff 
     following the commencement of an action under this section, 
     the court

[[Page S2939]]

     may issue a temporary restraining order, a preliminary 
     injunction, or an injunction, in accordance with rule 65 of 
     the Federal Rules of Civil Procedure, against the domain name 
     used by an Internet site dedicated to infringing activities, 
     or against a registrant of such domain name, or the owner or 
     operator of such Internet site dedicated to infringing 
     activities, to cease and desist from undertaking any further 
     activity as an Internet site dedicated to infringing 
     activities, if--
       (A) the domain name is registered or assigned by a domain 
     name registrar or domain name registry that located or doing 
     business in the United States; or
       (B)(i) the domain name is used within the United States to 
     access such Internet site; and
       (ii) the Internet site--
       (I) conducts business directed to residents of the United 
     States; and
       (II) harms holders of United States intellectual property 
     rights.
       (2) Determination by the court.--For purposes of 
     determining whether an Internet site conducts business 
     directed to residents of the United States under paragraph 
     (1)(B)(ii)(I), a court may consider, among other indicia, 
     whether--
       (A) the Internet site is providing goods or services 
     described in section 2(7) to users located in the United 
     States;
       (B) there is evidence that the Internet site is not 
     intended to provide--
       (i) such goods and services to users located in the United 
     States;
       (ii) access to such goods and services to users located in 
     the United States; and
       (iii) delivery of such goods and services to users located 
     in the United States;
       (C) the Internet site has reasonable measures in place to 
     prevent such goods and services from being accessed from or 
     delivered to the United States;
       (D) the Internet site offers services obtained in the 
     United States; and
       (E) any prices for goods and services are indicated in the 
     currency of the United States.
       (c) Notice and Service of Process.--
       (1) In general.--Upon commencing an action under this 
     section, the qualifying plaintiff shall send a notice of the 
     alleged violation and intent to proceed under this Act to the 
     registrant of the domain name of the Internet site--
       (A) at the postal and e-mail address appearing in the 
     applicable publicly accessible database of registrations, if 
     any and to the extent such addresses are reasonably 
     available;
       (B) via the postal and e-mail address of the registrar, 
     registry, or other domain name registration authority that 
     registered or assigned the domain name, to the extent such 
     addresses are reasonably available; and
       (C) in any other such form as the court finds necessary, 
     including as may be required by Rule 4(f) of the Federal 
     Rules of Civil Procedure.
       (2) Rule of construction.--For purposes of this section, 
     the actions described in this subsection shall constitute 
     service of process.
       (d) Required Actions Based on Court Orders.--
       (1) Service.--A qualifying plaintiff, with the prior 
     approval of the court, may, serve a copy of a court order 
     issued pursuant to this section on similarly situated 
     entities within each class described in paragraph (2). Proof 
     of service shall be filed with the court.
       (2) Reasonable measures.--After being served with a copy of 
     an order pursuant to this subsection:
       (A) Financial transaction providers.--A financial 
     transaction provider shall take reasonable measures, as 
     expeditiously as reasonable, designed to prevent, prohibit, 
     or suspend its service from completing payment transactions 
     involving customers located within the United States and the 
     Internet site associated with the domain name set forth in 
     the order.
       (B) Internet advertising services.--An Internet advertising 
     service that contracts with the Internet site associated with 
     the domain name set forth in the order to provide advertising 
     to or for that site, or which knowingly serves advertising to 
     or for such site, shall take technically feasible and 
     reasonable measures, as expeditiously as reasonable, designed 
     to--
       (i) prevent its service from providing advertisements to 
     the Internet site associated with such domain name; or
       (ii) cease making available advertisements for that site, 
     or paid or sponsored search results, links, or placements 
     that provide access to the domain name.
       (3) Communication with users.--An entity taking an action 
     described in this subsection shall determine how to 
     communicate such action to the entity's users or customers.
       (4) Rule of construction.--For purposes of an action 
     commenced under this section, the obligations of an entity 
     described in this subsection shall be limited to the actions 
     set out in each paragraph or subparagraph applicable to such 
     entity, and no order issued pursuant to this section shall 
     impose any additional obligations on, or require additional 
     actions by, such entity.
       (5) Actions pursuant to court order.--
       (A) Immunity from suit.--No cause of action shall lie in 
     any Federal or State court or administrative agency against 
     any entity receiving a court order issued under this 
     subsection, or against any director, officer, employee, or 
     agent thereof, for any act reasonably designed to comply with 
     this subsection or reasonably arising from such order, other 
     than in an action pursuant to subsection (e).
       (B) Immunity from liability.--Any entity receiving an order 
     under this subsection, and any director, officer, employee, 
     or agent thereof, shall not be liable to any party for any 
     acts reasonably designed to comply with this subsection or 
     reasonably arising from such order, other than in an action 
     pursuant to subsection (e), and any actions taken by 
     customers of such entity to circumvent any restriction on 
     access to the Internet domain instituted pursuant to this 
     subsection or any act, failure, or inability to restrict 
     access to an Internet domain that is the subject of a court 
     order issued pursuant to this subsection despite good faith 
     efforts to do so by such entity shall not be used by any 
     person in any claim or cause of action against such entity, 
     other than in an action pursuant to subsection (e).
       (e) Enforcement of Orders.--
       (1) In general.--In order to compel compliance with this 
     section, the qualifying plaintiff may bring an action for 
     injunctive relief against any party receiving a court order 
     issued pursuant to this section that knowingly and willfully 
     fails to comply with such order.
       (2) Rule of construction.--The authority granted a 
     qualifying plaintiff under paragraph (1) shall be the sole 
     legal remedy for enforcing the obligations under this section 
     of any entity described in subsection (d).
       (3) Defense.--A defendant in an action commenced under 
     paragraph (1) may establish an affirmative defense by showing 
     that the defendant does not have the technical means to 
     comply with the subsection without incurring an unreasonable 
     economic burden, or that the order is inconsistent with this 
     Act. This showing shall serve as a defense only to the extent 
     of such inability to comply or to the extent of such 
     inconsistency.
       (f) Modification or Vacation of Orders.--
       (1) In general.--At any time after the issuance of an order 
     under subsection (b), a motion to modify, suspend, or vacate 
     the order may be filed by--
       (A) any person, or owner or operator of property, bound by 
     the order;
       (B) any registrant of the domain name, or the owner or 
     operator of the Internet site subject to the order;
       (C) any domain name registrar or registry that has 
     registered or assigned the domain name of the Internet site 
     subject to the order; or
       (D) any entity that has received a copy of an order 
     pursuant to subsection (d) requiring such entity to take 
     action prescribed in that subsection.
       (2) Relief.--Relief under this subsection shall be proper 
     if the court finds that--
       (A) the Internet site associated with the domain name 
     subject to the order is no longer, or never was, dedicated to 
     infringing activities as defined in this Act; or
       (B) the interests of justice require that the order be 
     modified, suspended, or vacated.
       (3) Consideration.--In making a relief determination under 
     paragraph (2), a court may consider whether the domain name 
     has expired or has been re-registered by a different party.
       (g) Related Actions.--A qualifying plaintiff, if alleging 
     that an Internet site previously adjudicated to be an 
     Internet site dedicated to infringing activities is 
     accessible or has been reconstituted at a different domain 
     name, may commence a related action under this section 
     against the additional domain name in the same judicial 
     district as the previous action.

     SEC. 5. VOLUNTARY ACTION AGAINST WEBSITES STEALING AMERICAN 
                   INTELLECTUAL PROPERTY.

       (a) In General.--No financial transaction provider or 
     Internet advertising service shall be liable for damages to 
     any person for voluntarily taking any action described in 
     section 3(d) or 4(d) with regard to an Internet site if the 
     entity acting in good faith and based on credible evidence 
     has a reasonable belief that the Internet site is an Internet 
     site dedicated to infringing activities.
       (b) Internet Sites Engaged in Infringing Activities That 
     Endanger the Public Health.--
       (1) Refusal of service.--A domain name registry, domain 
     name registrar, financial transaction provider, information 
     location tool, or Internet advertising service, acting in 
     good faith and based on credible evidence, may stop providing 
     or refuse to provide services to an infringing Internet site 
     that endangers the public health.
       (2) Immunity from liability.--An entity described in 
     paragraph (1), including its directors, officers, employees, 
     or agents, that ceases or refused to provide services under 
     paragraph (1) shall not be liable to any party under any 
     Federal or State law for such action.
       (3) Definitions.--For purposes of this subsection--
       (A) the term ``adulterated'' has the same meaning as in 
     section 501 of the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 351);
       (B) an ``infringing Internet site that endangers the public 
     health'' means--
       (i) an Internet site dedicated to infringing activities for 
     which the counterfeit products that it offers, sells, 
     dispenses, or distributes are controlled or non-controlled 
     prescription medication; or
       (ii) an Internet site that has no significant use other 
     than, or is designed, operated, or marketed by its operator 
     or persons operating in concert with the operator, and facts 
     or circumstances suggest is used, primarily as a means for--

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       (I) offering, selling, dispensing, or distributing any 
     controlled or non-controlled prescription medication, and 
     does so regularly without a valid prescription; or
       (II) offering, selling, dispensing, or distributing any 
     controlled or non-controlled prescription medication, and 
     does so regularly for medication that is adulterated or 
     misbranded;

       (C) the term ``misbranded'' has the same meaning as in 
     section 502 of the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 352); and
       (D) the term ``valid prescription'' has the same meaning as 
     in section 309(e)(2)(A) of the Controlled Substances Act (21 
     U.S.C. 829(e)(2)(A)).

     SEC. 6. SAVINGS CLAUSES.

       (a) Rule of Construction Relating to Civil and Criminal 
     Remedies.--Nothing in this Act shall be construed to limit or 
     expand civil or criminal remedies available to any person 
     (including the United States) for infringing activities on 
     the Internet pursuant to any other Federal or State law.
       (b) Rule of Construction Relating to Vicarious or 
     Contributory Liability.--Nothing in this Act shall be 
     construed to enlarge or diminish vicarious or contributory 
     liability for any cause of action available under title 17, 
     United States Code, including any limitations on liability 
     under section 512 of such title 17, or to create an 
     obligation to take action pursuant to section 5 of this Act.
       (c) Relationship With Section 512 of Title 17.--Nothing in 
     this Act, and no order issued or served pursuant to sections 
     3 or 4 of this Act, shall serve as a basis for determining 
     the application of section 512 of title 17, United States 
     Code.

     SEC. 7. GUIDELINES AND STUDIES.

       (a) Guidelines.--The Attorney General shall--
       (1) publish procedures developed in consultation with other 
     relevant law enforcement agencies, including the United 
     States Immigration and Customs Enforcement, to receive 
     information from the public about Internet sites dedicated to 
     infringing activities;
       (2) provide guidance to intellectual property rights 
     holders about what information such rights holders should 
     provide law enforcement agencies to initiate an investigation 
     pursuant to this Act;
       (3) provide guidance to intellectual property rights 
     holders about how to supplement an ongoing investigation 
     initiated pursuant to this Act;
       (4) establish standards for prioritization of actions 
     brought under this Act;
       (5) provide appropriate resources and procedures for case 
     management and development to affect timely disposition of 
     actions brought under this Act; and
       (6) develop a deconfliction process in consultation with 
     other law enforcement agencies, including the United States 
     Immigration and Customs Enforcement, to coordinate 
     enforcement activities brought under this Act.
       (b) Reports.--
       (1) Report on effectiveness of certain measures.--Not later 
     than 1 year after the date of enactment of this Act, the 
     Secretary of Commerce, in coordination with the Attorney 
     General, the Secretary of Homeland Security, and the 
     Intellectual Property Enforcement Coordinator, shall conduct 
     a study and report to the Committee on the Judiciary of the 
     Senate and the Committee on the Judiciary of the House of 
     Representatives on the following:
       (A) An assessment of the effects, if any, of the 
     implementation of section 3(d)(2)(A) on the accessibility of 
     Internet sites dedicated to infringing activity.
       (B) An assessment of the effects, if any, of the 
     implementation of section 3(d)(2)(A) on the deployment, 
     security, and reliability of the domain name system and 
     associated Internet processes, including Domain Name System 
     Security Extensions.
       (C) Recommendations, if any, for modifying or amending this 
     Act to increase effectiveness or ameliorate any unintended 
     effects of section 3(d)(2)(A).
       (2) Report on overall effectiveness.--The Register of 
     Copyrights shall, in consultation with the appropriate 
     departments and agencies of the United States and other 
     stakeholders--
       (A) conduct a study on--
       (i) the enforcement and effectiveness of this Act; and
       (ii) the need to modify or amend this Act to apply to 
     emerging technologies; and
       (B) not later than 2 years after the date of enactment of 
     this Act, submit a report to the Committee on the Judiciary 
     of the Senate and the Committee on the Judiciary of the House 
     of Representatives on--
       (i) the results of the study conducted under subparagraph 
     (A); and
       (ii) any recommendations that the Register may have as a 
     result of the study.

  Mr. HATCH. Mr. President, I rise to express support for S. 968, the 
Preventing Real Online Threats to Economic Creativity and Theft of 
Intellectual Property, PROTECT, Act as introduced by my colleague, 
Senator Leahy. Chairman Leahy and I have worked together on the 
protection of intellectual property rights on a number of occasions 
over the years and I am pleased to partner with him once again on this 
important bill. I also want to recognize the efforts of Senator 
Grassley, the distinguished Ranking Minority Member of the Senate 
Judiciary Committee. He is a valued friend and his support is greatly 
appreciated as we move forward.
  With this legislation, we are sending a strong message to those 
selling or distributing counterfeit goods online, namely that the 
United States will strongly protect its intellectual property, IP, 
rights. Despite what seems to be a common assumption, just because 
something is available on the Internet does not mean it is free. Fake 
pharmaceuticals threaten people's lives. Stolen movies, music, and 
other products threaten the jobs and livelihoods of many people. Every 
year, these online thieves are making hundreds of millions of dollars 
by stealing American IP, and this undermines legitimate commerce. This 
is why protecting property rights is a critical imperative and is why 
we have come together to introduce the PROTECT IP Act.
  Utah is considered a very popular State for film and television 
production activity. Indeed, many American classics have been filmed in 
my home State. Nothing compares to the red rock of Southern Utah or the 
sweeping grandeur of the Wasatch Mountains. Not to mention Utah's 
workforce, which is one of the most highly educated and hardworking in 
our country. It is estimated that the motion picture and television 
industries are responsible for thousands of jobs and tens of millions 
of dollars in wages in Utah. So, IP theft has a direct, negative impact 
on Utah's economy and its workforce, and this same impact can be seen 
nationwide.
  There is no question that the legislative process can be tedious at 
times, and often it takes multiple Congresses to get things right. We 
witnessed this first hand in the patent reform debate. It took three 
Congresses for the Senate to pass patent reform legislation. I was 
pleased to be the lead Republican sponsor of the America Invents Act, 
S. 23, which passed the Senate in March by a vote of 95 to 5. I can 
confirm that the final Senate-passed bill was a product of countless 
hours of negotiation and legislative fine-tuning. While I hope the bill 
before us will not take nearly as long, I can confirm that significant 
and positive changes have already occurred since we introduced the 
bipartisan legislation last year. These changes include a narrower 
definition of the type of Internet sites to which the bill applies, 
specifically those ``dedicated to infringing activities;'' 
authorization for the Attorney General to serve an issued court order 
on a search engine, in addition to payment processors, advertising 
networks and Internet service providers; authorization for both the 
Attorney General and rights holders to bring actions against online 
infringers operating an Internet site or domain where the site is 
``dedicated to infringing activities,'' but with remedies limited to 
eliminating the financial viability of the site, not blocking access; 
requirement of plaintiffs to attempt to bring an action against the 
owner or registrant of the domain name used to access an Internet site 
``dedicated to infringing activities'' before bringing an action 
against the domain name itself; protection for domain name registries, 
registrars, search engines, payment processors, and advertising 
networks from damages resulting from their voluntary action against an 
Internet site ``dedicated to infringing activities,'' where that site 
also ``endangers the public health,'' by offering controlled or non-
controlled prescription medication.
  It is worth underscoring that the purpose of the PROTECT IP Act is to 
take down Internet sites dedicated to infringing activities, or in 
other words, the most egregious offenders in the world of online IP 
theft. Indeed, the bill authorizes the Department of Justice, DOJ, to 
file a civil action against the registrant or owner of a domain name 
that accesses a foreign infringing Internet site, or the foreign-
registered domain name itself. However, DOJ officials must seek 
approval from a Federal court before taking any action. I trust that a 
Federal judge will weigh all of the facts carefully before issuing an 
order, in accordance with the Federal Rules of Civil Procedure, to shut 
down a Web site dedicated to infringing activities.
  There is no quick fix to this problem. But doing nothing is not an 
option. We must explore ways, albeit in incremental steps, to take down 
offending

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Web sites. For this reason, I believe the PROTECT IP Act is a critical 
step in our ongoing fight against online piracy and counterfeiting. I 
am pleased with the progress that we have made so far on this bill and 
look forward to working with my colleagues on further refinements as it 
moves through the legislative process.
  We must take steps to combat those Web sites that are profiting from 
stolen American intellectual property.
                                 ______