Text: S.3804 — 111th Congress (2009-2010)

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Reported to Senate (09/20/2010)


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[Congressional Bills 111th Congress]
[From the U.S. Government Printing Office]
[S. 3804 Reported in Senate (RS)]

                                                       Calendar No. 648
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, 
 Mrs. Feinstein, Mr. Coburn, Mr. Cardin, Mr. Graham, Mr. Grassley, Mr. 
 Alexander, Mrs. Gillibrand, Mr. Menendez, and Mr. Inhofe) introduced 
the following bill; which was read twice and referred to the Committee 
                            on the Judiciary

                           November 18, 2010

                Reported by Mr. Leahy, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Combating Online 
Infringement and Counterfeits Act''.</DELETED>

<DELETED>SEC. 2. INTERNET SITES DEDICATED TO INFRINGING 
              ACTIVITIES.</DELETED>

<DELETED>    Chapter 113 of title 18, United States Code, is amended by 
adding at the end the following:</DELETED>
<DELETED>``Sec. 2324. Internet sites dedicated to infringing 
              activities</DELETED>
<DELETED>    ``(a) Definition.--For purposes of this section, an 
Internet site is `dedicated to infringing activities' if such site--
</DELETED>
        <DELETED>    ``(1) is otherwise subject to civil forfeiture to 
        the United States Government under section 2323; or</DELETED>
        <DELETED>    ``(2) is--</DELETED>
                <DELETED>    ``(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--
                </DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(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</DELETED>
                <DELETED>    ``(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.</DELETED>
<DELETED>    ``(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).</DELETED>
<DELETED>    ``(c) In Rem Action.--</DELETED>
        <DELETED>    ``(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--
        </DELETED>
                <DELETED>    ``(A) the domain name is dedicated to 
                infringing activities; and</DELETED>
                <DELETED>    ``(B) the Attorney General 
                simultaneously--</DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(ii) publishes notice of the 
                        action as the court may direct promptly after 
                        filing the action.</DELETED>
        <DELETED>    ``(2) Service of process.--For purposes of this 
        section, the actions described under paragraph (1)(B) shall 
        constitute service of process.</DELETED>
<DELETED>    ``(d) Situs.--</DELETED>
        <DELETED>    ``(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--</DELETED>
                <DELETED>    ``(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</DELETED>
                <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(2) Domains for which the registry or registrar 
        is not located domestically.--</DELETED>
                <DELETED>    ``(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--</DELETED>
                        <DELETED>    ``(i) the domain name is used to 
                        access such Internet site in the United States; 
                        and</DELETED>
                        <DELETED>    ``(ii) the Internet site--
                        </DELETED>
                                <DELETED>    ``(I) conducts business 
                                directed to residents of the United 
                                States; and</DELETED>
                                <DELETED>    ``(II) harms intellectual 
                                property rights holders that are 
                                residents of the United 
                                States.</DELETED>
                <DELETED>    ``(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--</DELETED>
                        <DELETED>    ``(i) the Internet site is 
                        actually providing goods or services to 
                        subscribers located in the United 
                        States;</DELETED>
                        <DELETED>    ``(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;</DELETED>
                        <DELETED>    ``(iii) the Internet site offers 
                        services accessible in the United States; 
                        and</DELETED>
                        <DELETED>    ``(iv) any prices for goods and 
                        services are indicated in the currency of the 
                        United States.</DELETED>
<DELETED>    ``(e) Service of Court Order.--</DELETED>
        <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(2) Nondomestic domains.--</DELETED>
                <DELETED>    ``(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).</DELETED>
                <DELETED>    ``(B) Required actions.--Upon receipt of a 
                court order issued pursuant to this section--</DELETED>
                        <DELETED>    ``(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;</DELETED>
                        <DELETED>    ``(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--</DELETED>
                                <DELETED>    ``(I) its service from 
                                processing transactions for customers 
                                located within the United States based 
                                on purchases associated with the domain 
                                name; and</DELETED>
                                <DELETED>    ``(II) its trademarks from 
                                being authorized for use on Internet 
                                sites associated with such domain name; 
                                and</DELETED>
                        <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(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.</DELETED>
<DELETED>    ``(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.</DELETED>
<DELETED>    ``(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.</DELETED>
<DELETED>    ``(h) Modification or Vacation of Orders; Dismissal.--
</DELETED>
        <DELETED>    ``(1) Modification or vacation of order.--At any 
        time after the issuance of a court order constituting 
        injunctive relief under this section--</DELETED>
                <DELETED>    ``(A) the Attorney General may apply for a 
                modification of the order--</DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(ii) to include additional 
                        domain names that are used in substantially the 
                        same manner as the Internet site against which 
                        the action was brought,</DELETED>
                <DELETED>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</DELETED>
                <DELETED>    ``(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--</DELETED>
                        <DELETED>    ``(i) the Internet site associated 
                        with the domain name subject to the order is no 
                        longer dedicated to infringing activities; 
                        or</DELETED>
                        <DELETED>    ``(ii) the interests of justice 
                        require that the order be modified, suspended, 
                        or vacated.</DELETED>
        <DELETED>    ``(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.</DELETED>
<DELETED>    ``(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.</DELETED>
<DELETED>    ``(j) Internet Sites Alleged by the Department of Justice 
To Be Dedicated to Infringing Activities.--</DELETED>
        <DELETED>    ``(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.</DELETED>
        <DELETED>    ``(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).</DELETED>
        <DELETED>    ``(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).</DELETED>
        <DELETED>    ``(4) Judicial review.--</DELETED>
                <DELETED>    ``(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.</DELETED>
                <DELETED>    ``(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.</DELETED>
                <DELETED>    ``(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.</DELETED>
                <DELETED>    ``(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.''.</DELETED>

<DELETED>SEC. 3. REQUIRED ACTIONS BY THE ATTORNEY GENERAL.</DELETED>

<DELETED>    The Attorney General shall--</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (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;</DELETED>
        <DELETED>    (3) provide guidance to intellectual property 
        rights holders about how to supplement an ongoing investigation 
        initiated pursuant to such section 2324;</DELETED>
        <DELETED>    (4) establish standards for prioritization of 
        actions brought under such section 2324; and</DELETED>
        <DELETED>    (5) provide appropriate resources and procedures 
        for case management and development to affect timely 
        disposition of actions brought under such section 
        2324.</DELETED>

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.

    (a) Definitions.--For purposes of this Act--
            (1) an Internet site is ``dedicated to infringing 
        activities'' if such site--
                    (A) is otherwise subject to civil forfeiture to the 
                United States Government under section 2323 of title 
                18, United States Code; or
                    (B) is--
                            (i) primarily designed, or 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--
                                    (I) to offer goods or services in 
                                violation of title 17, United States 
                                Code, or that enable or facilitate a 
                                violation of title 17, United States 
                                Code, including but not limited to 
                                offering or providing access in a 
                                manner not authorized by the copyright 
                                owner or otherwise by operation of law, 
                                copies or phonorecords of, or public 
                                performances or displays of works 
                                protected by title 17, in complete or 
                                substantially complete form, by any 
                                means, including by means of download, 
                                streaming, or other transmission, 
                                provision of a link or aggregated links 
                                to other sites or Internet resources 
                                for obtaining access to such copies, 
                                phonorecords, performances, displays, 
                                goods, or services; or
                                    (II) to sell or offer to sell or 
                                distribute or otherwise promote goods, 
                                services, or materials bearing a 
                                counterfeit mark, as that term is 
                                defined in section 34(d) of the Lanham 
                                Act (15 U.S.C. 1116(d)); and
                            (ii) engaged in the activities described in 
                        subparagraph (A), and when taken together, such 
                        activities are the central activities of the 
                        Internet site or sites accessed through a 
                        specific domain name;
            (2) the term ``domain name'' has the same meaning as in 
        section 45 of the Lanham Act (15 U.S.C. 1127); and
            (3) 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'').
    (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 further 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 or names used by an Internet 
        site in the judicial district in which the domain name 
        registrar or domain name registry for at least 1 such domain 
        name is located or doing business, or, if pursuant to 
        subsection (d)(2), in the District of Columbia, if--
                    (A) the domain name is used by an Internet site 
                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 
                or doing business 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 and 
                restrain 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 by users 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.
                    (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 providing goods or 
                        services described under subsection (a)(2) to 
                        users located in the United States;
                            (ii) 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;
                            (iii) the Internet site has reasonable 
                        measures to prevent such goods and services 
                        from being obtained in or delivered to the 
                        United States;
                            (iv) the Internet site offers services 
                        obtained in the United States; and
                            (v) any prices for goods and services are 
                        indicated in the currency of the United States.
    (e) Service of Court Order.--
            (1) Domestic domains.--In connection with an order obtained 
        in an action to which subsection (d)(1) applies, the Federal 
        law enforcement officer 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 may lock, the domain name.
            (2) Nondomestic domains.--
                    (A) Entity to be served.--In connection with an 
                order obtained in an action to which subsection (d)(2) 
                applies, a Federal law enforcement officer may serve 
                any court order issued pursuant to this section on 
                entities described in clauses (i) through (iii) of 
                subparagraph (B).
                    (B) Required actions.--After being served with an 
                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 any other operator of a 
                        nonauthoritative domain name system server 
                        shall, as expeditiously as reasonable, take 
                        technically feasible and reasonable steps 
                        designed to prevent a domain name from 
                        resolving to that domain name's Internet 
                        protocol address, except that--
                                    (I) such entity shall not be 
                                required--
                                            (aa) to modify its network 
                                        or other facilities to comply 
                                        with such order;
                                            (bb) to take any steps with 
                                        respect to domain name lookups 
                                        not performed by its own domain 
                                        name system server; or
                                            (cc) to continue to prevent 
                                        access to a domain name to 
                                        which access has been 
                                        effectively disabled by other 
                                        means; and
                                    (II) nothing in this subparagraph 
                                shall affect the limitation on an 
                                entity's liability under section 512 of 
                                title 17, United States Code;
                            (ii) a financial transaction provider, as 
                        that term is defined in section 5362(4) of 
                        title 31, United States Code--
                                    (I) shall take reasonable measures, 
                                as expeditiously as reasonable, 
                                designed to prevent or prohibit its 
                                service from completing payment 
                                transactions between its customers 
                                located within the United States and 
                                the Internet site using the domain name 
                                set forth in the order; and
                                    (II) shall cause notice to be 
                                provided to the Internet site using the 
                                domain name set forth in the order that 
                                the site is not authorized to use the 
                                trademark of the financial transaction 
                                provider; and
                            (iii) a service that provides 
                        advertisements to Internet sites shall take 
                        reasonable measures, as expeditiously as 
                        reasonable, to prevent its network from 
                        providing advertisements to an Internet site 
                        associated with such 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 filed 
        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) Immunity.--
                    (A) Actions pursuant to court order.--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 (g). 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 (g), 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 (g).
                    (B) Voluntary actions.--No domain name registry, 
                domain name registrar, financial transaction provider, 
                or service that provides advertisements to Internet 
                sites shall be liable to any person on account of any 
                action described in this subsection voluntarily taken 
                if the entity reasonably believes the Internet site is 
                dedicated to infringing activities or to prevent the 
                importation into the United States of goods or services 
                described under subsection (a)(2) offered by such an 
                Internet site.
    (f) Publication of Orders.--The Attorney General shall inform the 
Intellectual Property Enforcement Coordinator and other law enforcement 
agencies 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, and any entity described in subsection (e) may, post 
such domain names on a publicly available Internet site, together with 
other relevant information, in order to inform the public. Upon the 
expiration or vacation of a court order issued under this subsection, 
the Attorney General shall inform the Intellectual Property Enforcement 
Coordinator of such expiration or vacation, and the Intellectual 
Property Enforcement Coordinator shall promptly remove the affected 
domain name or names from such publicly available Internet site.
    (g) 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. A showing by the defending 
        party in such action that it does not have the technical means 
        to comply with this section, or that the order is inconsistent 
        with this section, shall serve as a defense to such action to 
        the extent of the inability to comply or such inconsistency.
            (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 (e).
    (h) Modification or Vacation of Orders.--At any time after the 
issuance of a court order under this section--
            (1) the Attorney General may apply for a modification of 
        the order--
                    (A) to expand the order to apply to an Internet 
                site that is reconstituted using a different domain 
                name subsequent to the original order, and
                    (B) 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 evidence that the Internet site 
        associated with the requested modification (i) is dedicated to 
        infringing activities in substantially the same manner as, and 
        (ii) is under joint control, ownership, or operation of, or 
        other affiliation with, the domain name subject to the order;
            (2) 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--
                    (A) the Internet site associated with the domain 
                name subject to the order is no longer, or never was, 
                dedicated to infringing activities; or
                    (B) the interests of justice require that the order 
                be modified, suspended, or vacated; and
            (3) a registrar or owner, licensee, or operator of a domain 
        name subject to the order may petition the court to vacate the 
        order based on evidence that the registration of the domain 
        name has expired and the domain name has been re-registered by 
        a different party.
    (i) Savings Clause.--
            (1) In general.--Nothing in this section 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.
            (2) Vicarious or contributory liability.--Nothing in this 
        section 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.

SEC. 3. REQUIRED ACTIONS BY THE ATTORNEY GENERAL.

    The Attorney General shall--
            (1) publish procedures developed in consultation with other 
        relevant law enforcement agencies, including Immigration and 
        Customs Enforcement, to receive information from the public 
        about Internet sites that are dedicated to infringing 
        activities;
            (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 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 Immigration and 
        Customs Enforcement, to coordinate enforcement activities 
        brought under this Act.

SEC. 4. REPORT.

    Not later than 1 year after the date of enactment of this Act, the 
Secretary of Commerce shall 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 impact of the steps described in section 2(e) 
on an entity's ability to deploy effectively and use Domain Name System 
Security Extensions.
                                                       Calendar No. 648

111th CONGRESS

  2d Session

                                S. 3804

_______________________________________________________________________

                                 A BILL

         To combat online infringement, and for other purposes.

_______________________________________________________________________

                           November 18, 2010

                       Reported with an amendment