A Distant Soil by Colleen Doran

The complete text of the bill introduced on September 20.

This bill is not only meant to address entertainment piracy, but online medicine shops as well as widespread counterfeiting of designer products.

Text of S. 3804: Combating Online Infringement and Counterfeits Act

S 3804 IS

111th CONGRESS

2d Session

S. 3804

To combat online infringement, and for other purposes.

IN THE SENATE OF THE UNITED STATES

September 20, 2010

Mr. LEAHY (for himself, Mr. HATCH, Ms. KLOBUCHAR, Mr. WHITEHOUSE, Mr. SCHUMER, Mr. KOHL, Mr. SPECTER, Mr. DURBIN, Mr. BAYH, Mr. VOINOVICH, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To combat online infringement, and for other purposes.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Combating Online Infringement and Counterfeits Act’.

SEC. 2. INTERNET SITES DEDICATED TO INFRINGING ACTIVITIES.

Chapter 113 of title 18, United States Code, is amended by adding at the end the following:

‘Sec. 2324. Internet sites dedicated to infringing activities

‘(a) Definition- For purposes of this section, an Internet site is ‘dedicated to infringing activities’ if such site–

‘(1) is otherwise subject to civil forfeiture to the United States Government under section 2323; or

‘(2) is–

‘(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer–

‘(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or

‘(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of 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’; 15 U.S.C. 1116(d)); and

‘(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.

‘(b) Injunctive Relief- On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any infringing activity in violation of this section, in accordance with rule 65 of the Federal Rules of Civil Procedure. A party described in subsection (e) receiving an order issued pursuant to this section shall take the appropriate actions described in subsection (e).

‘(c) In Rem Action-

‘(1) IN GENERAL- The Attorney General may commence an in rem action against any domain name used by an Internet site in the judicial district in which the domain name registrar or domain name registry is located, or, if pursuant to subsection (d)(2), in the District of Columbia, if–

‘(A) the domain name is dedicated to infringing activities; and

‘(B) the Attorney General simultaneously–

‘(i) sends a notice of the alleged violation and intent to proceed under this subsection to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar, if available; and

‘(ii) publishes notice of the action as the court may direct promptly after filing the action.

‘(2) SERVICE OF PROCESS- For purposes of this section, the actions described under paragraph (1)(B) shall constitute service of process.

‘(d) Situs-

‘(1) DOMAINS FOR WHICH THE REGISTRY OR REGISTRAR IS LOCATED DOMESTICALLY- In an in rem action commenced under subsection (c), a domain name shall be deemed to have its situs in the judicial district in which–

‘(A) the domain name registrar or registry is located, provided that for a registry that is located in more than 1 judicial district, venue shall be appropriate at the principal place where the registry operations are performed; or

‘(B) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court.

‘(2) DOMAINS FOR WHICH THE REGISTRY OR REGISTRAR IS NOT LOCATED DOMESTICALLY-

‘(A) ACTION BROUGHT IN DISTRICT OF COLUMBIA- If the provisions of paragraph (1) do not apply to a particular domain name, the in rem action may be brought in the District of Columbia to prevent the importation into the United States of goods and services offered by an Internet site dedicated to infringing activities if–

‘(i) the domain name is used to access such Internet site in the United States; and

‘(ii) the Internet site–

‘(I) conducts business directed to residents of the United States; and

‘(II) harms intellectual property rights holders that are residents of the United States.

‘(B) DETERMINATION BY THE COURT- For purposes of determining whether an Internet site conducts business directed to residents of the United States under subparagraph (A)(ii)(I), a court shall consider, among other indicia whether–

‘(i) the Internet site is actually providing goods or services to subscribers located in the United States;

‘(ii) the Internet site states that it is not intended, and has measures to prevent, infringing material from being accessed in or delivered to the United States;

‘(iii) the Internet site offers services accessible in the United States; and

‘(iv) any prices for goods and services are indicated in the currency of the United States.

‘(e) Service of Court Order-

‘(1) DOMESTIC DOMAINS- In an in rem action to which subsection (d)(1) applies, the Attorney General shall serve any court order issued pursuant to this section on the domain name registrar or, if the domain name registrar is not located within the United States, upon the registry. Upon receipt of such order, the domain name registrar or domain name registry shall suspend operation of, and lock, the domain name.

‘(2) NONDOMESTIC DOMAINS-

‘(A) ENTITY TO BE SERVED- In an in rem action to which subsection (d)(2) applies, the Attorney General may serve any court order issued pursuant to this section on any entity listed in clauses (i) through (iii) of subparagraph (B).

‘(B) REQUIRED ACTIONS- Upon receipt of a court order issued pursuant to this section–

‘(i) a service provider, as that term is defined in section 512(k)(1) of title 17, United States Code, or other operator of a domain name system server shall take reasonable steps that will prevent a domain name from resolving to that domain name’s Internet protocol address;

‘(ii) a financial transaction provider, as that term is defined in section 5362(4) of title 31, United States Code, shall take reasonable measures, as expeditiously as practical, to prevent–

‘(I) its service from processing transactions for customers located within the United States based on purchases associated with the domain name; and

‘(II) its trademarks from being authorized for use on Internet sites associated with such domain name; and

‘(iii) a service that serves contextual or display advertisements to Internet sites shall take reasonable measures, as expeditiously as practical, to prevent its network from serving advertisements to an Internet site accessed through such domain name.

‘(3) IMMUNITY- 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 section, or against any director, officer, employee, or agent thereof, for any action reasonably calculated to comply with this section or arising from such order.

‘(f) Publication of Orders- The Attorney General shall inform the Intellectual Property Enforcement Coordinator of all court orders issued under this section directed to specific domain names associated with Internet sites dedicated to infringing activities. The Intellectual Property Enforcement Coordinator shall post such domain names on a publicly available Internet site, together with other relevant information, in order to inform the public.

‘(g) Enforcement of Orders- In order to compel compliance with this section, the Attorney General may bring an action against any party receiving a court order issued pursuant to this section that willfully or persistently fails to comply with such order. A showing by the defending party in such action that it does not have the technical means to comply with this section shall serve as a complete defense to such action.

‘(h) Modification or Vacation of Orders; Dismissal-

‘(1) MODIFICATION OR VACATION OF ORDER- At any time after the issuance of a court order constituting injunctive relief under this section–

‘(A) the Attorney General may apply for a modification of the order–

‘(i) to expand the order to apply to a domain name that is reconstituted using a different domain name subsequent to the original order, and

‘(ii) to include additional domain names that are used in substantially the same manner as the Internet site against which the action was brought,

by providing the court with clear indicia of joint control, ownership, or operation of the Internet site associated with the domain name subject to the order and the Internet site associated with the requested modification; and

‘(B) a defendant or owner or operator of a domain name subject to the order, or any party required to take action based on the order, may petition the court to modify, suspend, or vacate the order, based on evidence that–

‘(i) the Internet site associated with the domain name subject to the order is no longer dedicated to infringing activities; or

‘(ii) the interests of justice require that the order be modified, suspended, or vacated.

‘(2) DISMISSAL OF ORDER- A court order constituting injunctive relief under this section issued against a domain name used by an Internet site dedicated to infringing activities shall automatically cease to have any force or effect upon expiration of the registration of the domain name. It shall be the responsibility of the domain name registrar to notify the court of such expiration.

‘(i) Savings Clause- Nothing in this section shall be construed to limit 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.

‘(j) Internet Sites Alleged by the Department of Justice To Be Dedicated to Infringing Activities-

‘(1) IN GENERAL- The Attorney General shall maintain a public listing of domain names that, upon information and reasonable belief, the Department of Justice determines are dedicated to infringing activities but for which the Attorney General has not filed an action under this section.

‘(2) PROTECTION FOR UNDERTAKING CORRECTIVE MEASURES- If an entity described under subsection (e) takes any action specified in such subsection with respect to a domain name that appears on the list established under paragraph (1), then such entity shall receive the immunity protections described under subsection (e)(3).

‘(3) REMOVAL FROM LIST- The Attorney General shall establish and publish procedures for the owner or operator of a domain name appearing on the list established under paragraph (1) to petition the Attorney General to remove such domain name from the list based on any of the factors described under subsection (h)(1)(B).

‘(4) JUDICIAL REVIEW-

‘(A) IN GENERAL- After the Attorney General makes a final determination on a petition to remove a domain name appearing on the list established under paragraph (1) filed by an individual pursuant to the procedures referred to in paragraph (3), the individual may obtain judicial review of such determination in a civil action commenced not later than 90 days after notice of such decision, or such further time as the Attorney General may allow.

‘(B) JURISDICTION- A civil action for such judicial review shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has a principal place of business, or, if the plaintiff does not reside or have a principal place of business within any such judicial district, in the District Court of the United States for the District of Columbia.

‘(C) ANSWER- As part of the Attorney General’s answer to a complaint for such judicial review, the Attorney General shall file a certified copy of the administrative record compiled pursuant to the petition to remove, including the evidence upon which the findings and decision complained of are based.

‘(D) JUDGMENT- The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming or reversing the result of the Attorney General’s determination on the petition to remove, with or without remanding the cause for a rehearing.’.

SEC. 3. REQUIRED ACTIONS BY THE ATTORNEY GENERAL.

The Attorney General shall–

(1) publish procedures to receive information from the public about Internet sites that are dedicated to infringing activities, as that term is defined under section 2324 of title 18, United States Code;

(2) provide guidance to intellectual property rights holders about what information such rights holders should provide the Department of Justice to initiate an investigation pursuant to such section 2324;

(3) provide guidance to intellectual property rights holders about how to supplement an ongoing investigation initiated pursuant to such section 2324;

(4) establish standards for prioritization of actions brought under such section 2324; and

(5) provide appropriate resources and procedures for case management and development to affect timely disposition of actions brought under such section 2324.