{"id":615,"date":"2012-01-27T19:44:46","date_gmt":"2012-01-28T00:44:46","guid":{"rendered":"http:\/\/www.hephaestusproject.com\/blog\/?page_id=615"},"modified":"2012-01-27T23:24:08","modified_gmt":"2012-01-28T04:24:08","slug":"sopa","status":"publish","type":"page","link":"https:\/\/www.hephaestusproject.com\/blog\/contentindustry\/billsandtradeagreements\/sopa\/","title":{"rendered":"SOPA"},"content":{"rendered":"

SOPA –\u00a0Stop Online Piracy Act<\/a><\/p>\n

 <\/p>\n

I
\n112TH CONGRESS
\n1ST SESSION
\nH. R. 3261
\nTo promote prosperity, creativity, entrepreneurship, and innovation by
\ncombating the theft of U.S. property, and for other purposes.
\nIN THE HOUSE OF REPRESENTATIVES
\nOCTOBER 26, 2011
\nMr. SMITH of Texas (for himself and Mr. CONYERS, Mr. GOODLATTE, Mr.
\nBERMAN, Mr. GRIFFIN of Arkansas, Mr. GALLEGLY, Mr. DEUTCH, Mr.
\nCHABOT, Mr. ROSS of Florida, Mrs. BLACKBURN, Mrs. BONO MACK, Mr.
\nTERRY, and Mr. SCHIFF) introduced the following bill; which was referred to the Committee on the Judiciary
\nA BILL
\nTo promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and
\nfor other purposes.
\n1 Be it enacted by the Senate and House of Representa-
\n2 tives of the United States of America in Congress assembled,
\n3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
\n4 (a) SHORT TITLE.\u2014This Act may be cited as the
\n5 \u2018\u2018Stop Online Piracy Act\u2019\u2019.
\n6 (b) TABLE OF CONTENTS.\u2014The table of contents of
\n7 this Act is as follows:
\nSec. 1. Short title; table of contents.
\nSec. 2. Savings and severability clauses.
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\nTITLE I\u2014COMBATING ONLINE PIRACY
\nSec. 101. Definitions.
\nSec. 102. Action by Attorney General to protect U.S. customers and prevent
\nU.S. support of foreign infringing sites.
\nSec. 103. Market-based system to protect U.S. customers and prevent U.S.
\nfunding of sites dedicated to theft of U.S. property.
\nSec. 104. Immunity for taking voluntary action against sites dedicated to theft
\nof U.S. property.
\nSec. 105. Immunity for taking voluntary action against sites that endanger
\npublic health.
\nSec. 106. Guidelines and study.
\nSec. 107. Denying U.S. capital to notorious foreign infringers.
\nTITLE II\u2014ADDITIONAL ENHANCEMENTS TO COMBAT
\nINTELLECTUAL PROPERTY THEFT
\nSec. 201. Streaming of copyrighted works in violation of criminal law.
\nSec. 202. Trafficking in inherently dangerous goods or services.
\nSec. 203. Protecting U.S. businesses from foreign and economic espionage.
\nSec. 204. Amendments to sentencing guidelines.
\nSec. 205. Defending intellectual property rights abroad.
\n1 SEC. 2. SAVINGS AND SEVERABILITY CLAUSES.
\n2 (a) SAVINGS CLAUSES.\u2014
\n3 (1) FIRST AMENDMENT.\u2014Nothing in this Act
\n4 shall be construed to impose a prior restraint on free
\n5 speech or the press protected under the 1st Amend-
\n6 ment to the Constitution.
\n7 (2) TITLE 17 LIABILITY.\u2014Nothing in title I
\n8 shall be construed to enlarge or diminish liability, in-
\n9 cluding vicarious or contributory liability, for any
\n10 cause of action available under title 17, United
\n11 States Code, including any limitations on liability
\n12 under such title.
\n13 (b) SEVERABILITY.\u2014If any provision of this Act, or
\n14 the application of the provision to any person or cir-
\n15 cumstance, is held to be unconstitutional, the other proviVerDate Mar 15 2010 21:23 Oct 27, 2011 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\\BILLS\\H3261.IH H3261
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\n1 sions or the application of the provision to other persons
\n2 or circumstances shall not be affected thereby.
\n3 TITLE I\u2014COMBATING ONLINE
\n4 PIRACY
\n5 SEC. 101. DEFINITIONS.
\n6 In this title:
\n7 (1) DOMAIN NAME.\u2014The term \u2018\u2018domain name\u2019\u2019
\n8 has the meaning given that term in section 45 of the
\n9 Lanham Act (15 U.S.C. 1127) and includes any
\n10 subdomain designation using such domain name as
\n11 part of an electronic address on the Internet to iden-
\n12 tify a unique online location.
\n13 (2) DOMAIN NAME SYSTEM SERVER.\u2014The term
\n14 \u2018\u2018domain name system server\u2019\u2019 means a server or
\n15 other mechanism used to provide the Internet pro-
\n16 tocol address associated with a domain name.
\n17 (3) DOMESTIC DOMAIN NAME.\u2014The term \u2018\u2018do-
\n18 mestic domain name\u2019\u2019 means a domain name that is
\n19 registered or assigned by a domain name registrar,
\n20 domain name registry, or other domain name reg-
\n21 istration authority, that is located within a judicial
\n22 district of the United States.
\n23 (4) DOMESTIC INTERNET PROTOCOL AD-
\n24 DRESS.\u2014The term \u2018\u2018domestic Internet Protocol ad-
\n25 dress\u2019\u2019 means an Internet Protocol address for which
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\n1 the corresponding Internet Protocol allocation entity
\n2 is located within a judicial district of the United
\n3 States.
\n4 (5) DOMESTIC INTERNET SITE.\u2014The term \u2018\u2018do-
\n5 mestic Internet site\u2019\u2019 means an Internet site for
\n6 which the corresponding domain name or, if there is
\n7 no domain name, the corresponding Internet Pro-
\n8 tocol address, is a domestic domain name or domes-
\n9 tic Internet Protocol address.
\n10 (6) FOREIGN DOMAIN NAME.\u2014The term \u2018\u2018for-
\n11 eign domain name\u2019\u2019 means a domain name that is
\n12 not a domestic domain name.
\n13 (7) FOREIGN INTERNET PROTOCOL ADDRESS.\u2014
\n14 The term \u2018\u2018foreign Internet Protocol address\u2019\u2019 means
\n15 an Internet Protocol address that is not a domestic
\n16 Internet protocol address.
\n17 (8) FOREIGN INTERNET SITE.\u2014The term \u2018\u2018for-
\n18 eign Internet site\u2019\u2019 means an Internet site that is
\n19 not a domestic Internet site.
\n20 (9) INCLUDING.\u2014The term \u2018\u2018including\u2019\u2019 means
\n21 including, but not limited to.
\n22 (10) INTELLECTUAL PROPERTY ENFORCEMENT
\n23 COORDINATOR.\u2014The term \u2018\u2018Intellectual Property
\n24 Enforcement Coordinator\u2019\u2019 means the Intellectual
\n25 Property Enforcement Coordinator appointed under
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\n1 section 301 of the Prioritizing Resources and Orga-
\n2 nization for Intellectual Property Act of 2008 (15
\n3 U.S.C. 8111).
\n4 (11) INTERNET.\u2014The term \u2018\u2018Internet\u2019\u2019 has the
\n5 meaning given that term in section 5362(5) of title
\n6 31, United States Code.
\n7 (12) INTERNET ADVERTISING SERVICE.\u2014The
\n8 term \u2018\u2018Internet advertising service\u2019\u2019 means a service
\n9 that for compensation sells, purchases, brokers,
\n10 serves, inserts, verifies, clears, or otherwise facili-
\n11 tates the placement of an advertisement, including a
\n12 paid or sponsored search result, link, or placement,
\n13 that is rendered in viewable form for any period of
\n14 time on an Internet site.
\n15 (13) INTERNET PROTOCOL.\u2014The term \u2018\u2018Inter-
\n16 net Protocol\u2019\u2019 means a protocol used for commu-
\n17 nicating data across a packet-switched internetwork
\n18 using the Transmission Control Protocol\/Internet
\n19 Protocol, and includes any predecessor or successor
\n20 protocol to such protocol.
\n21 (14) INTERNET PROTOCOL ADDRESS.\u2014The
\n22 term \u2018\u2018Internet Protocol address\u2019\u2019 means a numerical
\n23 label that is assigned to each device that participates
\n24 in a computer network that uses the Internet Pro-
\n25 tocol for communication.
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\n1 (15) INTERNET PROTOCOL ALLOCATION ENTI-
\n2 TY.\u2014The term \u2018\u2018Internet Protocol allocation entity\u2019\u2019
\n3 means, with respect to a particular Internet Protocol
\n4 address, the entity, local internet registry, or re-
\n5 gional internet registry to which the smallest appli-
\n6 cable block of Internet Protocol addresses containing
\n7 that address is allocated or assigned by a local inter-
\n8 net registry, regional internet registry, or other
\n9 Internet Protocol address allocation authority, ac-
\n10 cording to the applicable publicly available database
\n11 of allocations and assignments, if any.
\n12 (16) INTERNET SEARCH ENGINE.\u2014The term
\n13 \u2018\u2018Internet search engine\u2019\u2019 means a service made
\n14 available via the Internet that searches, crawls, cat-
\n15 egorizes, or indexes information or Web sites avail-
\n16 able elsewhere on the Internet and on the basis of
\n17 a user query or selection that consists of terms, con-
\n18 cepts, categories, questions, or other data returns to
\n19 the user a means, such as a hyperlinked list of Uni-
\n20 form Resource Locators, of locating, viewing, or
\n21 downloading such information or data available on
\n22 the Internet relating to such query or selection.
\n23 (17) INTERNET SITE.\u2014The term \u2018\u2018Internet
\n24 site\u2019\u2019 means the collection of digital assets, including
\n25 links, indexes, or pointers to digital assets, accessible
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\n1 through the Internet that are addressed relative to
\n2 a common domain name or, if there is no domain
\n3 name, a common Internet Protocol address.
\n4 (18) LANHAM ACT.\u2014The term \u2018\u2018Lanham Act\u2019\u2019
\n5 means the Act entitled \u2018\u2018An Act to provide for the
\n6 registration and protection of trademarks used in
\n7 commerce, to carry out the provisions of certain
\n8 international conventions, and for other purposes\u2019\u2019,
\n9 approved July 5, 1946 (commonly referred to as the
\n10 \u2018\u2018Trademark Act of 1946\u2019\u2019 or the \u2018\u2018Lanham Act\u2019\u2019).
\n11 (19) NONAUTHORITATIVE DOMAIN NAME SERV-
\n12 ER.\u2014The term \u2018\u2018nonauthoritative domain name serv-
\n13 er\u2019\u2019 means a server that does not contain complete
\n14 copies of domains but uses a cache file that is com-
\n15 prised of previous domain name server lookups, for
\n16 which the server has received an authoritative re-
\n17 sponse in the past.
\n18 (20) OWNER; OPERATOR.\u2014The terms \u2018\u2018owner\u2019\u2019
\n19 or \u2018\u2018operator\u2019\u2019, when used in connection with an
\n20 Internet site, includes, respectively, any owner of a
\n21 majority interest in, or any person with authority to
\n22 operate, such Internet site.
\n23 (21) PAYMENT NETWORK PROVIDER.\u2014
\n24 (A) IN GENERAL.\u2014The term \u2018\u2018payment
\n25 network provider\u2019\u2019 means an entity that directly
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\n1 or indirectly provides the proprietary services,
\n2 infrastructure, and software to effect or facili-
\n3 tate a debit, credit, or other payment trans-
\n4 action.
\n5 (B) RULE OF CONSTRUCTION.\u2014For pur-
\n6 poses of this paragraph, a depository institution
\n7 (as such term is defined under section 3 of the
\n8 Federal Deposit Insurance Act) or credit union
\n9 that initiates a payment transaction shall not
\n10 be construed to be a payment network provider
\n11 based solely on the offering or provision of such
\n12 service.
\n13 (22) SERVICE PROVIDER.\u2014The term \u2018\u2018service
\n14 provider\u2019\u2019 means a service provider as defined in sec-
\n15 tion 512(k)(1) of title 17, United States Code, that
\n16 operates a nonauthoritative domain name system
\n17 server.
\n18 (23) U.S.-DIRECTED SITE.\u2014The term \u2018\u2018U.S.-di-
\n19 rected site\u2019\u2019 means an Internet site or portion there-
\n20 of that is used to conduct business directed to resi-
\n21 dents of the United States, or that otherwise dem-
\n22 onstrates the existence of minimum contacts suffi-
\n23 cient for the exercise of personal jurisdiction over
\n24 the owner or operator of the Internet site consistent
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\n1 with the Constitution of the United States, based on
\n2 relevant evidence that may include whether\u2014
\n3 (A) the Internet site is used to provide
\n4 goods or services to users located in the United
\n5 States;
\n6 (B) there is evidence that the Internet site
\n7 or portion thereof is intended to offer or pro-
\n8 vide\u2014
\n9 (i) such goods and services,
\n10 (ii) access to such goods and services,
\n11 or
\n12 (iii) delivery of such goods and serv-
\n13 ices,
\n14 to users located in the United States;
\n15 (C) the Internet site or portion thereof
\n16 does not contain reasonable measures to pre-
\n17 vent such goods and services from being ob-
\n18 tained in or delivered to the United States; and
\n19 (D) any prices for goods and services are
\n20 indicated or billed in the currency of the United
\n21 States.
\n22 (24) UNITED STATES.\u2014The term \u2018\u2018United
\n23 States\u2019\u2019 includes any commonwealth, possession, or
\n24 territory of the United States.
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\n1 SEC. 102. ACTION BY ATTORNEY GENERAL TO PROTECT
\n2 U.S. CUSTOMERS AND PREVENT U.S. SUP-
\n3 PORT OF FOREIGN INFRINGING SITES.
\n4 (a) DEFINITION.\u2014For purposes of this section, a for-
\n5 eign Internet site or portion thereof is a \u2018\u2018foreign infring-
\n6 ing site\u2019\u2019 if\u2014
\n7 (1) the Internet site or portion thereof is a
\n8 U.S.-directed site and is used by users in the United
\n9 States;
\n10 (2) the owner or operator of such Internet site
\n11 is committing or facilitating the commission of
\n12 criminal violations punishable under section 2318,
\n13 2319, 2319A, 2319B, or 2320, or chapter 90, of
\n14 title 18, United States Code; and
\n15 (3) the Internet site would, by reason of acts
\n16 described in paragraph (1), be subject to seizure in
\n17 the United States in an action brought by the Attor-
\n18 ney General if such site were a domestic Internet
\n19 site.
\n20 (b) ACTION BY THE ATTORNEY GENERAL.\u2014
\n21 (1) IN PERSONAM.\u2014The Attorney General may
\n22 commence an in personam action against\u2014
\n23 (A) a registrant of a domain name used by
\n24 a foreign infringing site; or
\n25 (B) an owner or operator of a foreign in-
\n26 fringing site.
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\n1 (2) IN REM.\u2014If through due diligence the At-
\n2 torney General is unable to find a person described
\n3 in subparagraph (A) or (B) of paragraph (1), or no
\n4 such person found has an address within a judicial
\n5 district of the United States, the Attorney General
\n6 may commence an in rem action against a foreign
\n7 infringing site or the foreign domain name used by
\n8 such site.
\n9 (3) NOTICE.\u2014Upon commencing an action
\n10 under this subsection, the Attorney General shall
\n11 send a notice of the alleged violation and intent to
\n12 proceed under this section\u2014
\n13 (A) to the registrant of the domain name
\n14 of the Internet site\u2014
\n15 (i) at the postal and electronic mail
\n16 addresses appearing in the applicable pub-
\n17 licly accessible database of registrations, if
\n18 any, and to the extent such addresses are
\n19 reasonably available; and
\n20 (ii) via the postal and electronic mail
\n21 addresses of the registrar, registry, or
\n22 other domain name registration authority
\n23 that registered or assigned the domain
\n24 name of the Internet site, to the extent
\n25 such addresses are reasonably available; or
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\n1 (B) to the owner or operator of the Inter-
\n2 net site\u2014
\n3 (i) at the primary postal and elec-
\n4 tronic mail addresses for such owner or op-
\n5 erator that is provided on the Internet site,
\n6 if any, and to the extent such addresses
\n7 are reasonably available; or
\n8 (ii) if there is no domain name of the
\n9 Internet site, via the postal and electronic
\n10 mail addresses of the Internet Protocol al-
\n11 location entity appearing in the applicable
\n12 publicly accessible database of allocations
\n13 and assignments, if any, and to the extent
\n14 such addresses are reasonably available; or
\n15 (C) in any other such form as the court
\n16 may provide, including as may be required by
\n17 rule 4(f) of the Federal Rules of Civil Proce-
\n18 dure.
\n19 (4) SERVICE OF PROCESS.\u2014For purposes of
\n20 this section, the actions described in this subsection
\n21 shall constitute service of process.
\n22 (5) RELIEF.\u2014On application of the Attorney
\n23 General following the commencement of an action
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\n1 junction, in accordance with rule 65 of the Federal
\n2 Rules of Civil Procedure, against a registrant of a
\n3 domain name used by the foreign infringing site or
\n4 an owner or operator of the foreign infringing site
\n5 or, in an action brought in rem under paragraph
\n6 (2), against the foreign infringing site or a portion
\n7 of such site, or the domain name used by such site,
\n8 to cease and desist from undertaking any further ac-
\n9 tivity as a foreign infringing site.
\n10 (c) ACTIONS BASED ON COURT ORDERS.\u2014
\n11 (1) SERVICE.\u2014A process server on behalf of
\n12 the Attorney General, with prior approval of the
\n13 court, may serve a copy of a court order issued pur-
\n14 suant to this section on similarly situated entities
\n15 within each class described in paragraph (2). Proof
\n16 of service shall be filed with the court.
\n17 (2) REASONABLE MEASURES.\u2014After being
\n18 served with a copy of an order pursuant to this sub-
\n19 section, the following shall apply:
\n20 (A) SERVICE PROVIDERS.\u2014
\n21 (i) IN GENERAL.\u2014A service provider
\n22 shall take technically feasible and reason-
\n23 able measures designed to prevent access
\n24 by its subscribers located within the
\n25 United States to the foreign infringing site
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\n1 (or portion thereof) that is subject to the
\n2 order, including measures designed to pre-
\n3 vent the domain name of the foreign in-
\n4 fringing site (or portion thereof) from re-
\n5 solving to that domain name\u2019s Internet
\n6 Protocol address. Such actions shall be
\n7 taken as expeditiously as possible, but in
\n8 any case within 5 days after being served
\n9 with a copy of the order, or within such
\n10 time as the court may order.
\n11 (ii) LIMITATIONS.\u2014A service provider
\n12 shall not be required\u2014
\n13 (I) other than as directed under
\n14 this subparagraph, to modify its net-
\n15 work, software, systems, or facilities;
\n16 (II) to take any measures with
\n17 respect to domain name resolutions
\n18 not performed by its own domain
\n19 name server; or
\n20 (III) to continue to prevent ac-
\n21 cess to a domain name to which ac-
\n22 cess has been effectively disabled by
\n23 other means.
\n24 (iii) CONSTRUCTION.\u2014Nothing in this
\n25 subparagraph shall affect the limitation on
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\n1 the liability of a service provider under sec-
\n2 tion 512 of title 17, United States Code.
\n3 (iv) TEXT OF NOTICE.\u2014The Attorney
\n4 General shall prescribe the text of any no-
\n5 tice displayed to users or customers of a
\n6 service provider taking actions pursuant to
\n7 this subparagraph. Such text shall state
\n8 that an action is being taken pursuant to
\n9 a court order obtained by the Attorney
\n10 General.
\n11 (B) INTERNET SEARCH ENGINES.\u2014A pro-
\n12 vider of an Internet search engine shall take
\n13 technically feasible and reasonable measures, as
\n14 expeditiously as possible, but in any case within
\n15 5 days after being served with a copy of the
\n16 order, or within such time as the court may
\n17 order, designed to prevent the foreign infringing
\n18 site that is subject to the order, or a portion of
\n19 such site specified in the order, from being
\n20 served as a direct hypertext link.
\n21 (C) PAYMENT NETWORK PROVIDERS.\u2014
\n22 (i) PREVENTING AFFILIATION.\u2014A
\n23 payment network provider shall take tech-
\n24 nically feasible and reasonable measures,
\n25 as expeditiously as possible, but in any
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\n1 case within 5 days after being served with
\n2 a copy of the order, or within such time as
\n3 the court may order, designed to prevent,
\n4 prohibit, or suspend its service from com-
\n5 pleting payment transactions involving cus-
\n6 tomers located within the United States or
\n7 subject to the jurisdiction of the United
\n8 States and the payment account\u2014
\n9 (I) which is used by the foreign
\n10 infringing site, or portion thereof, that
\n11 is subject to the order; and
\n12 (II) through which the payment
\n13 network provider would complete such
\n14 payment transactions.
\n15 (ii) NO DUTY TO MONITOR.\u2014A pay-
\n16 ment network provider shall be considered
\n17 to be in compliance with clause (i) if it
\n18 takes action described in that clause with
\n19 respect to accounts it has as of the date on
\n20 which a copy of the order is served, or as
\n21 of the date on which the order is amended
\n22 under subsection (e).
\n23 (D) INTERNET ADVERTISING SERVICES.\u2014
\n24 (i) REQUIRED ACTIONS.\u2014An Internet
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\n1 vide advertising to or for the foreign in-
\n2 fringing site, or portion thereof, that is
\n3 subject to the order, or that knowingly
\n4 serves advertising to or for such site or
\n5 such portion thereof, shall take technically
\n6 feasible and reasonable measures, as expe-
\n7 ditiously as possible, but in any case within
\n8 5 days after being served with a copy of
\n9 the order, or within such time as the court
\n10 may order, designed to\u2014
\n11 (I) prevent its service from pro-
\n12 viding advertisements to or relating to
\n13 the foreign infringing site that is sub-
\n14 ject to the order or a portion of such
\n15 site specified in the order;
\n16 (II) cease making available ad-
\n17 vertisements for the foreign infringing
\n18 site or such portion thereof, or paid or
\n19 sponsored search results, links, or
\n20 other placements that provide access
\n21 to such foreign infringing site or such
\n22 portion thereof; and
\n23 (III) cease providing or receiving
\n24 any compensation for advertising or
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\n1 tion with such foreign infringing site
\n2 or such portion thereof.
\n3 (ii) NO DUTY TO MONITOR.\u2014An inter-
\n4 net advertising service shall be considered
\n5 to be in compliance with clause (i) if it
\n6 takes action described in that clause with
\n7 respect to accounts it has as of the date on
\n8 which a copy of the order is served, or as
\n9 of the date on which the order is amended
\n10 under subsection (e).
\n11 (3) COMMUNICATION WITH USERS.\u2014Except as
\n12 provided under paragraph (2)(A)(iv), an entity tak-
\n13 ing an action described in this subsection shall de-
\n14 termine the means to communicate such action to
\n15 the entity\u2019s users or customers.
\n16 (4) ENFORCEMENT OF ORDERS.\u2014
\n17 (A) IN GENERAL.\u2014To ensure compliance
\n18 with orders issued pursuant to this section, the
\n19 Attorney General may bring an action for in-
\n20 junctive relief\u2014
\n21 (i) against any entity served under
\n22 paragraph (1) that knowingly and willfully
\n23 fails to comply with the requirements of
\n24 this subsection to compel such entity to
\n25 comply with such requirements; or
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\n1 (ii) against any entity that knowingly
\n2 and willfully provides or offers to provide
\n3 a product or service designed or marketed
\n4 for the circumvention or bypassing of
\n5 measures described in paragraph (2) and
\n6 taken in response to a court order issued
\n7 pursuant to this subsection, to enjoin such
\n8 entity from interfering with the order by
\n9 continuing to provide or offer to provide
\n10 such product or service.
\n11 (B) RULE OF CONSTRUCTION.\u2014The au-
\n12 thority granted the Attorney General under
\n13 subparagraph (A)(i) shall be the sole legal rem-
\n14 edy to enforce the obligations under this section
\n15 of any entity described in paragraph (2).
\n16 (C) DEFENSE.\u2014A defendant in an action
\n17 under subparagraph (A)(i) may establish an af-
\n18 firmative defense by showing that the defendant
\n19 does not have the technical means to comply
\n20 with this subsection without incurring an un-
\n21 reasonable economic burden, or that the order
\n22 is not authorized by this subsection. Such show-
\n23 ing shall not be presumed to be a complete de-
\n24 fense but shall serve as a defense only for those
\n25 measures for which a technical limitation on
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\n1 compliance is demonstrated or for such portions
\n2 of the order as are demonstrated to be unau-
\n3 thorized by this subsection.
\n4 (D) DEFINITION.\u2014For purposes of this
\n5 paragraph, a product or service designed or
\n6 marketed for the circumvention or bypassing of
\n7 measures described in paragraph (2) and taken
\n8 in response to a court order issued pursuant to
\n9 this subsection includes a product or service
\n10 that is designed or marketed to enable a do-
\n11 main name described in such an order\u2014
\n12 (i) to resolve to that domain name\u2019s
\n13 Internet protocol address notwithstanding
\n14 the measures taken by a service provider
\n15 under paragraph (2) to prevent such reso-
\n16 lution; or
\n17 (ii) to resolve to a different domain
\n18 name or Internet Protocol address that the
\n19 provider of the product or service knows,
\n20 reasonably should know, or reasonably be-
\n21 lieves is used by an Internet site offering
\n22 substantially similar infringing activities as
\n23 those with which the infringing foreign
\n24 site, or portion thereof, subject to a court
\n25 order under this section was associated.
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\n1 (5) IMMUNITY.\u2014
\n2 (A) IMMUNITY FROM SUIT.\u2014Other than in
\n3 an action pursuant to paragraph (4), no cause
\n4 of action shall lie in any Federal or State court
\n5 or administrative agency against any entity
\n6 served with a copy of a court order issued
\n7 under this subsection, or against any director,
\n8 officer, employee, or agent thereof, for any act
\n9 reasonably designed to comply with this sub-
\n10 section or reasonably arising from such order.
\n11 (B) IMMUNITY FROM LIABILITY.\u2014Other
\n12 than in an action pursuant to paragraph (4)\u2014
\n13 (i) any entity served with a copy of an
\n14 order under this subsection, and any direc-
\n15 tor, officer, employee, or agent thereof,
\n16 shall not be liable for any act reasonably
\n17 designed to comply with this subsection or
\n18 reasonably arising from such order; and
\n19 (ii) any\u2014
\n20 (I) actions taken by customers of
\n21 such entity to circumvent any restric-
\n22 tion on access to the foreign infring-
\n23 ing site, or portion thereof, that is
\n24 subject to such order, that is insti-
\n25 tuted pursuant to this subsection, or
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\n1 (II) act, failure, or inability to re-
\n2 strict access to a foreign infringing
\n3 site, or portion thereof, that is subject
\n4 to such order, in spite of good faith
\n5 efforts to comply with such order by
\n6 such entity,
\n7 shall not be used by any person in any
\n8 claim or cause of action against such enti-
\n9 ty.
\n10 (d) MODIFICATION OR VACATION OF ORDERS.\u2014
\n11 (1) IN GENERAL.\u2014At any time after the
\n12 issuance of an order under subsection (b), a motion
\n13 to modify, suspend, or vacate the order may be filed
\n14 by\u2014
\n15 (A) any person, or owner or operator of
\n16 property, that is subject to the order;
\n17 (B) any registrant of the domain name, or
\n18 the owner or operator, of the Internet site that
\n19 is subject to the order;
\n20 (C) any domain name registrar, registry,
\n21 or other domain name registration authority
\n22 that has registered or assigned the domain
\n23 name of the Internet site that is subject to the
\n24 order; or
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\n1 (D) any entity that has been served with
\n2 a copy of an order pursuant to subsection (c)
\n3 that requires such entity to take action pre-
\n4 scribed in that subsection.
\n5 (2) RELIEF.\u2014Relief under this subsection shall
\n6 be proper if the court finds that\u2014
\n7 (A) the foreign Internet site subject to the
\n8 order is no longer, or never was, a foreign in-
\n9 fringing site; or
\n10 (B) the interests of justice otherwise re-
\n11 quire that the order be modified, suspended, or
\n12 vacated.
\n13 (3) CONSIDERATION.\u2014In making a relief deter-
\n14 mination under paragraph (2), a court may consider
\n15 whether the domain name of the foreign Internet
\n16 site has expired or has been re-registered by an enti-
\n17 ty other than the entity that is subject to the order
\n18 with respect to which the motion under paragraph
\n19 (1) is brought.
\n20 (4) INTERVENTION.\u2014An entity required to take
\n21 action pursuant to subsection (c) if an order issues
\n22 under subsection (b) may intervene at any time in
\n23 any action commenced under subsection (b) that
\n24 may result in such order, or in any action to modify,
\n25 suspend, or vacate such order under this subsection.
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\n1 (e) AMENDED ORDERS.\u2014The Attorney General, if al-
\n2 leging that a foreign Internet site previously adjudicated
\n3 in an action under this section to be a foreign infringing
\n4 site is accessible or has been reconstituted at a different
\n5 domain name or Internet Protocol address, may petition
\n6 the court to amend the order issued under this section
\n7 accordingly.
\n8 (f) LAW ENFORCEMENT COORDINATION.\u2014
\n9 (1) IN GENERAL.\u2014The Attorney General shall
\n10 inform the Intellectual Property Enforcement Coor-
\n11 dinator and the heads of appropriate law enforce-
\n12 ment agencies of all court orders issued under sub-
\n13 section (b), and all amended orders issued under
\n14 subsection (e), regarding foreign infringing sites.
\n15 (2) ALTERATIONS.\u2014The Attorney General
\n16 shall, and the defendant may, inform the Intellectual
\n17 Property Enforcement Coordinator of the modifica-
\n18 tion, suspension, expiration, or vacation of a court
\n19 order issued under subsection (b) or an amended
\n20 order issued under subsection (e).
\n21 SEC. 103. MARKET-BASED SYSTEM TO PROTECT U.S. CUS-
\n22 TOMERS AND PREVENT U.S. FUNDING OF
\n23 SITES DEDICATED TO THEFT OF U.S. PROP-
\n24 ERTY.
\n25 (a) DEFINITIONS.\u2014In this section:
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\n1 (1) DEDICATED TO THEFT OF U.S. PROP-
\n2 ERTY.\u2014An \u2018\u2018Internet site is dedicated to theft of
\n3 U.S. property\u2019\u2019 if\u2014
\n4 (A) it is an Internet site, or a portion
\n5 thereof, that is a U.S.-directed site and is used
\n6 by users within the United States; and
\n7 (B) either\u2014
\n8 (i) the U.S.-directed site is primarily
\n9 designed or operated for the purpose of,
\n10 has only limited purpose or use other than,
\n11 or is marketed by its operator or another
\n12 acting in concert with that operator for use
\n13 in, offering goods or services in a manner
\n14 that engages in, enables, or facilitates\u2014
\n15 (I) a violation of section 501 of
\n16 title 17, United States Code;
\n17 (II) a violation of section 1201 of
\n18 title 17, United States Code; or
\n19 (III) the sale, distribution, or
\n20 promotion of goods, services, or mate-
\n21 rials bearing a counterfeit mark, as
\n22 that term is defined in section 34(d)
\n23 of the Lanham Act or section 2320 of
\n24 title 18, United States Code; or
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\n1 (ii) the operator of the U.S.-directed
\n2 site\u2014
\n3 (I) is taking, or has taken, delib-
\n4 erate actions to avoid confirming a
\n5 high probability of the use of the
\n6 U.S.-directed site to carry out acts
\n7 that constitute a violation of section
\n8 501 or 1201 of title 17, United States
\n9 Code; or
\n10 (II) operates the U.S.-directed
\n11 site with the object of promoting, or
\n12 has promoted, its use to carry out
\n13 acts that constitute a violation of sec-
\n14 tion 501 or 1201 of title 17, United
\n15 States Code, as shown by clear ex-
\n16 pression or other affirmative steps
\n17 taken to foster infringement.
\n18 (2) QUALIFYING PLAINTIFF.\u2014The term \u2018\u2018quali-
\n19 fying plaintiff\u2019\u2019 means, with respect to a particular
\n20 Internet site or portion thereof, a holder of an intel-
\n21 lectual property right harmed by the activities de-
\n22 scribed in paragraph (1) occurring on that Internet
\n23 site or portion thereof.
\n24 (b) DENYING U.S. FINANCIAL SUPPORT OF SITES
\n25 DEDICATED TO THEFT OF U.S. PROPERTY.\u2014
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\n1 (1) PAYMENT NETWORK PROVIDERS.\u2014Except
\n2 in the case of an effective counter notification pursu-
\n3 ant to paragraph (5), a payment network provider
\n4 shall take technically feasible and reasonable meas-
\n5 ures, as expeditiously as possible, but in any case
\n6 within 5 days after delivery of a notification under
\n7 paragraph (4), that are designed to prevent, pro-
\n8 hibit, or suspend its service from completing pay-
\n9 ment transactions involving customers located within
\n10 the United States and the Internet site, or portion
\n11 thereof, that is specified in the notification under
\n12 paragraph (4).
\n13 (2) INTERNET ADVERTISING SERVICES.\u2014Ex-
\n14 cept in the case of an effective counter notification
\n15 pursuant to paragraph (5), an Internet advertising
\n16 service that contracts with the operator of an Inter-
\n17 net site, or portion thereof, that is specified in a no-
\n18 tification delivered under paragraph (4), to provide
\n19 advertising to or for such site or portion thereof, or
\n20 that knowingly serves advertising to or for such site
\n21 or portion thereof, shall take technically feasible and
\n22 reasonable measures, as expeditiously as possible,
\n23 but in any case within 5 days after delivery the noti-
\n24 fication under paragraph (4), that are designed to\u2014
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\n1 (A) prevent its service from providing ad-
\n2 vertisements to or relating to the Internet site,
\n3 or portion thereof, that is specified in the notifi-
\n4 cation;
\n5 (B) cease making available advertisements
\n6 for such Internet site, or portion thereof, that
\n7 is specified in the notification, or paid or spon-
\n8 sored search results, links, or other placements
\n9 that provide access to such Internet site, or
\n10 portion thereof, that is specified in the notifica-
\n11 tion; and
\n12 (C) cease providing or receiving any com-
\n13 pensation for advertising or related services to,
\n14 from, or in connection with such Internet site,
\n15 or portion thereof, that is specified in the notifi-
\n16 cation.
\n17 (3) DESIGNATED AGENT.\u2014
\n18 (A) IN GENERAL.\u2014Each payment network
\n19 provider and each Internet advertising service
\n20 shall designate an agent to receive notifications
\n21 described in paragraph (4), by making available
\n22 through its service, including on its Web site in
\n23 a location accessible to the public, and by pro-
\n24 viding to the Copyright Office, substantially the
\n25 following:
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\n1 (i) The name, address, phone number,
\n2 and electronic mail address of the agent.
\n3 (ii) Other contact information that the
\n4 Register of Copyrights considers appro-
\n5 priate.
\n6 (B) DIRECTORY OF AGENTS.\u2014The Reg-
\n7 ister of Copyrights shall maintain and make
\n8 available to the public for inspection, including
\n9 through the Internet, in electronic format, a
\n10 current directory of agents designated under
\n11 subparagraph (A).
\n12 (4) NOTIFICATION REGARDING INTERNET SITES
\n13 DEDICATED TO THEFT OF U.S. PROPERTY.\u2014
\n14 (A) REQUIREMENTS.\u2014Subject to subpara-
\n15 graph (B), a notification under this paragraph
\n16 is effective only if it is a written communication
\n17 that is provided to the designated agent of a
\n18 payment network provider or an Internet adver-
\n19 tising service and includes substantially the fol-
\n20 lowing:
\n21 (i) A physical or electronic signature
\n22 of a person authorized to act on behalf of
\n23 the holder of an intellectual property right
\n24 harmed by the activities described in sub-
\n25 section (a)(1).
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\n1 (ii) Identification of the Internet site,
\n2 or portion thereof, dedicated to theft of
\n3 U.S. property, including either the domain
\n4 name or Internet Protocol address of such
\n5 site, or both.
\n6 (iii) Identification of the specific facts
\n7 to support the claim that the Internet site,
\n8 or portion thereof, is dedicated to theft of
\n9 U.S. property and to clearly show that im-
\n10 mediate and irreparable injury, loss, or
\n11 damage will result to the holder of the in-
\n12 tellectual property right harmed by the ac-
\n13 tivities described in subsection (a)(1) in
\n14 the absence of timely action by the pay-
\n15 ment network provider or Internet adver-
\n16 tising service.
\n17 (iv) Information reasonably sufficient
\n18 to establish that the payment network pro-
\n19 vider or Internet advertising service is pro-
\n20 viding payment processing or Internet ad-
\n21 vertising services for such site.
\n22 (v) Information reasonably sufficient
\n23 to permit the payment network provider or
\n24 Internet advertising service to contact the
\n25 holder of the intellectual property right
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\n1 harmed by the activities described in sub-
\n2 section (a)(1).
\n3 (vi) A statement that the holder of the
\n4 intellectual property right has a good faith
\n5 belief that the use of the owner\u2019s works or
\n6 goods in which the right exists, in the
\n7 manner described in the notification, is not
\n8 authorized by the holder, its agent, or law.
\n9 (vii) A statement that the information
\n10 in the notification is accurate, and, under
\n11 penalty of perjury, that the signatory is
\n12 authorized to act on behalf of the holder of
\n13 the intellectual property right harmed by
\n14 the activities described in subsection
\n15 (a)(1).
\n16 (viii) Identification of the evidence in-
\n17 dicating that the site (or portion thereof)
\n18 is a U.S.-directed site.
\n19 (B) SERVICE IF NO AGENT DESIGNATED.\u2014
\n20 If a payment network provider or Internet ad-
\n21 vertising service has not designated an agent
\n22 under paragraph (3), the notification under
\n23 subparagraph (A) may be provided to any offi-
\n24 cer or legal representative of such provider or
\n25 service.
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\n1 (C) NOTICE TO INTERNET SITE IDENTI-
\n2 FIED IN NOTIFICATION.\u2014Upon receipt of an ef-
\n3 fective notification under this paragraph, a pay-
\n4 ment network provider or Internet advertising
\n5 service shall take appropriate steps to ensure
\n6 timely delivery of the notification to the Inter-
\n7 net site identified in the notification.
\n8 (5) COUNTER NOTIFICATION.\u2014
\n9 (A) REQUIREMENTS.\u2014Subject to subpara-
\n10 graph (B), a counter notification is effective
\n11 under this paragraph only if it is a written com-
\n12 munication that is provided to the designated
\n13 agent of a payment network provider or an
\n14 Internet advertising service and includes sub-
\n15 stantially the following:
\n16 (i) A physical or electronic signature
\n17 of the owner or operator of the Internet
\n18 site, or portion thereof, specified in a noti-
\n19 fication under paragraph (4) subject to
\n20 which action is to be taken by the payment
\n21 network provider or Internet advertising
\n22 service under paragraph (1) or (2), or of
\n23 the registrant of the domain name used by
\n24 such site or portion thereof.
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\n1 (ii) In the case of an Internet site
\n2 specified in the notification under para-
\n3 graph (4) that is a foreign Internet site, a
\n4 statement that the owner or operator, or
\n5 registrant, consents to the jurisdiction of
\n6 the courts of the United States, and will
\n7 accept service of process from the person
\n8 who provided notification under paragraph
\n9 (4), or an agent of such person, for pur-
\n10 poses of adjudicating whether the site is an
\n11 Internet site dedicated to theft of U.S.
\n12 property under this section.
\n13 (iii) A statement under penalty of per-
\n14 jury that the owner or operator, or reg-
\n15 istrant, has a good faith belief that it does
\n16 not meet the criteria of an Internet site
\n17 dedicated to theft of U.S. property as set
\n18 forth under this section.
\n19 (iv) The name, address, email ad-
\n20 dress, and telephone number of the owner,
\n21 operator, or registrant.
\n22 (B) SERVICE IF NO AGENT DESIGNATED.\u2014
\n23 If a payment network provider or Internet ad-
\n24 vertising service has not designated an agent
\n25 under paragraph (3), the counter notification
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\n1 under subparagraph (A) may be provided to
\n2 any officer or legal representative of such pro-
\n3 vider or service.
\n4 (6) MISREPRESENTATIONS.\u2014Any provider of a
\n5 notification or counter notification who knowingly
\n6 materially misrepresents under this section\u2014
\n7 (A) that a site is an Internet site dedicated
\n8 to the theft of U.S. property, or
\n9 (B) that such site does not meet the cri-
\n10 teria of an Internet site dedicated to the theft
\n11 of U.S. property,
\n12 shall be liable for damages, including costs and at-
\n13 torneys\u2019 fees, incurred by the person injured by such
\n14 misrepresentation as a result of the misrepresenta-
\n15 tion.
\n16 (c) LIMITED INJUNCTIVE RELIEF IN CASES OF
\n17 COUNTER NOTIFICATION.\u2014
\n18 (1) IN PERSONAM.\u2014If an effective counter noti-
\n19 fication is made under subsection (b)(5), or if a pay-
\n20 ment network provider fails to comply with sub-
\n21 section (b)(1), or an Internet advertising service fails
\n22 to comply with subsection (b)(2), pursuant to a noti-
\n23 fication under subsection (b)(4) in the absence of
\n24 such a counter notification, a qualifying plaintiff
\n25 may commence an in personam action against\u2014
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\n1 (A) a registrant of a domain name used by
\n2 the Internet site, or portion thereof, that is sub-
\n3 ject to the notification under subsection (b)(4);
\n4 or
\n5 (B) an owner or operator of the Internet
\n6 site or portion thereof.
\n7 (2) IN REM.\u2014If through due diligence a quali-
\n8 fying plaintiff who is authorized to bring an in per-
\n9 sonam action under paragraph (1) with respect to
\n10 an Internet site dedicated to theft of U.S. property
\n11 is unable to find a person described in subpara-
\n12 graphs (A) or (B) of paragraph (1), or no such per-
\n13 son found has an address within a judicial district
\n14 of the United States, the qualifying plaintiff may
\n15 commence an in rem action against that Internet
\n16 site or the domain name used by such site.
\n17 (3) NOTICE.\u2014Upon commencing an action
\n18 under this subsection, the qualifying plaintiff shall
\n19 send a notice of the alleged activity described in sub-
\n20 section (a)(1) and intent to proceed under this sub-
\n21 section\u2014
\n22 (A) to the registrant of the domain name
\n23 of the Internet site, or portion thereof, that is
\n24 the subject to the notification under subsection
\n25 (b)(4)\u2014
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\n1 (i) at the postal and electronic mail
\n2 addresses appearing in the applicable pub-
\n3 licly accessible database of registrations, if
\n4 any, and to the extent such addresses are
\n5 reasonably available; and
\n6 (ii) via the postal and electronic mail
\n7 addresses of the registrar, registry, or
\n8 other domain name registration authority
\n9 that registered or assigned the domain
\n10 name of the Internet site, or portion there-
\n11 of, to the extent such addresses are reason-
\n12 ably available;
\n13 (B) to the owner or operator of the Inter-
\n14 net site, or portion thereof\u2014
\n15 (i) at the primary postal and elec-
\n16 tronic mail addresses for such owner or op-
\n17 erator that are provided on the Internet
\n18 site, or portion thereof, if any, and to the
\n19 extent such addresses are reasonably avail-
\n20 able; or
\n21 (ii) if there is no domain name of the
\n22 Internet site or portion thereof, via the
\n23 postal and electronic mail addresses of the
\n24 Internet Protocol allocation entity appear-
\n25 ing in the applicable publicly accessible
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\n1 database of allocations and assignments, if
\n2 any, and to the extent such addresses are
\n3 reasonably available; or
\n4 (C) in any other such form as the court
\n5 may prescribe, including as may be required by
\n6 rule 4(f) of the Federal Rules of Civil Proce-
\n7 dure.
\n8 (4) SERVICE OF PROCESS.\u2014For purposes of
\n9 this section, the actions described in this subsection
\n10 shall constitute service of process.
\n11 (5) RELIEF.\u2014On application of a qualifying
\n12 plaintiff following the commencement of an action
\n13 under this section with respect to an Internet site
\n14 dedicated to theft of U.S. property, the court may
\n15 issue a temporary restraining order, a preliminary
\n16 injunction, or an injunction, in accordance with rule
\n17 65 of the Federal Rules of Civil Procedure, against
\n18 a registrant of a domain name used by the Internet
\n19 site, or against an owner or operator of the Internet
\n20 site, or, in an action brought in rem under para-
\n21 graph (2), against the Internet site, or against the
\n22 domain name used by the Internet site, to cease and
\n23 desist from undertaking any further activity as an
\n24 Internet site dedicated to theft of U.S. property.
\n25 (d) ACTIONS BASED ON COURT ORDERS.\u2014
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\n1 (1) SERVICE AND RESPONSE.\u2014
\n2 (A) SERVICE BY QUALIFYING PLAIN-
\n3 TIFF.\u2014A qualifying plaintiff, with the prior ap-
\n4 proval of the court, may serve a copy of a court
\n5 order issued under subsection (c) on similarly
\n6 situated entities described in paragraph (2).
\n7 Proof of service shall be filed with the court.
\n8 (B) RESPONSE.\u2014An entity served under
\n9 subparagraph (A) shall, not later than 7 days
\n10 after the date of such service, file with the
\n11 court a certification acknowledging receipt of a
\n12 copy of the order and stating that such entity
\n13 has complied or will comply with the obligations
\n14 imposed under paragraph (2), or explaining
\n15 why the entity will not so comply.
\n16 (C) VENUE FOR SERVICE.\u2014A copy of the
\n17 court order may be served in any judicial dis-
\n18 trict where an entity resides or may be found.
\n19 (2) REASONABLE MEASURES.\u2014After being
\n20 served with a copy of an order pursuant to this sub-
\n21 section, the following shall apply:
\n22 (A) PAYMENT NETWORK PROVIDERS.\u2014
\n23 (i) PREVENTING AFFILIATION.\u2014A
\n24 payment network provider shall take tech-
\n25 nically feasible and reasonable measures,
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\n1 as expeditiously as possible, but in any
\n2 case within 5 days after being served with
\n3 a copy of the court order, or within such
\n4 time as the court may order, that are de-
\n5 signed to prevent, prohibit, or suspend its
\n6 service from completing payment trans-
\n7 actions involving customers located within
\n8 the United States or subject to the juris-
\n9 diction of the United States and any ac-
\n10 count\u2014
\n11 (I) which is used by the Internet
\n12 site dedicated to theft of U.S. prop-
\n13 erty that is subject to the order; and
\n14 (II) through which the payment
\n15 network provider would complete such
\n16 payment transactions.
\n17 (ii) NO DUTY TO MONITOR.\u2014A pay-
\n18 ment network provider is in compliance
\n19 with clause (i) if it takes action described
\n20 in that clause with respect to accounts it
\n21 has as of the date of service of the order,
\n22 or as of the date of any subsequent notice
\n23 that its service is being used to complete
\n24 payment transactions described in clause
\n25 (i).
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\n1 (B) INTERNET ADVERTISING SERVICES.\u2014
\n2 (i) REQUIRED ACTIONS.\u2014An Internet
\n3 advertising service that contracts with the
\n4 Internet site dedicated to theft of U.S.
\n5 property that is subject to the order to
\n6 provide advertising to or for such Internet
\n7 site, or that knowingly serves advertising
\n8 to or for such internet site, shall take tech-
\n9 nically feasible and reasonable measures,
\n10 as expeditiously as possible, but in any
\n11 case within 5 days after being served with
\n12 a copy of the order, or within such time as
\n13 the court may order, that are designed
\n14 to\u2014
\n15 (I) prevent its service from pro-
\n16 viding advertisements to or relating to
\n17 the Internet site;
\n18 (II) cease making available ad-
\n19 vertisements for the Internet site, or
\n20 paid or sponsored search results,
\n21 links, or other placements that pro-
\n22 vide access to the Internet site; and
\n23 (III) cease providing or receiving
\n24 any compensation for advertising or
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\n1 related services to, from, or in connec-
\n2 tion with the Internet site.
\n3 (ii) NO DUTY TO MONITOR.\u2014An inter-
\n4 net advertising service is in compliance
\n5 with clause (i) if it takes action described
\n6 in that clause with respect to accounts it
\n7 has as of the date on which a copy of the
\n8 order is served, or as of the date of any
\n9 subsequent notice that its service is being
\n10 used for activities described in clause (i).
\n11 (3) COMMUNICATION WITH USERS.\u2014An entity
\n12 taking an action described in this subsection shall
\n13 determine the means to communicate such action to
\n14 the entity\u2019s users or customers.
\n15 (4) ENFORCEMENT OF ORDERS.\u2014
\n16 (A) RULE OF CONSTRUCTION.\u2014The au-
\n17 thority under this subsection shall be the sole
\n18 legal remedy to enforce the obligations of any
\n19 entity under this subsection.
\n20 (B) PROCEDURES AND RELIEF.\u2014
\n21 (i) SHOW CAUSE ORDER.\u2014On a show-
\n22 ing by the qualifying plaintiff of probable
\n23 cause to believe that an entity served with
\n24 a copy of a court order issued under sub-
\n25 section (c) has not complied with its obliVerDate Mar 15 2010 21:23 Oct 27, 2011 Jkt 019200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\\BILLS\\H3261.IH H3261
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\n1 gations under this subsection by reason of
\n2 such court order, the court shall require
\n3 the entity to show cause why an order
\n4 should not issue\u2014
\n5 (I) to require compliance with the
\n6 obligations of this subsection; and
\n7 (II) to impose an appropriate
\n8 monetary sanction, consistent with the
\n9 court\u2019s exercise of its equitable au-
\n10 thority, to enforce compliance with its
\n11 lawful orders, if the entity\u2014
\n12 (aa) has knowingly and will-
\n13 fully failed to file a certification
\n14 required by paragraph (1)(B);
\n15 (bb) has filed such a certifi-
\n16 cation agreeing to comply but
\n17 has knowingly and willfully failed
\n18 to do so; or
\n19 (cc) has knowingly and will-
\n20 fully certified falsely that compli-
\n21 ance with the requirements of
\n22 paragraph (2) is not required by
\n23 law.
\n24 (ii) SERVICE OF PROCESS.\u2014The order
\n25 to show cause, and any other process, may
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\n1 be served in any judicial district where the
\n2 entity resides or may be found.
\n3 (C) DEFENSE.\u2014An entity against whom
\n4 relief is sought under subparagraph (B) may
\n5 establish an affirmative defense by showing that
\n6 the entity does not have the technical means to
\n7 comply with this subsection without incurring
\n8 an unreasonable economic burden, or that the
\n9 order is not authorized by this subsection. Such
\n10 showing shall not be presumed to be a complete
\n11 defense but shall serve as a defense only for
\n12 those measures for which a technical limitation
\n13 on compliance is demonstrated or for such por-
\n14 tions of the order as are demonstrated to be un-
\n15 authorized by this subsection.
\n16 (5) IMMUNITY.\u2014
\n17 (A) IMMUNITY FROM SUIT.\u2014Other than in
\n18 an action pursuant to paragraph (4), no cause
\n19 of action shall lie in any Federal or State court
\n20 or administrative agency against any entity
\n21 served with a copy of a court order issued
\n22 under subsection (c), or against any director,
\n23 officer, employee, or agent thereof, for any act
\n24 reasonably designed to comply with this sub-
\n25 section or reasonably arising from such order.
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\n1 (B) IMMUNITY FROM LIABILITY.\u2014Other
\n2 than in an action pursuant to paragraph (4)\u2014
\n3 (i) any entity served with a copy of an
\n4 order under this subsection, and any direc-
\n5 tor, officer, employee, or agent thereof,
\n6 shall not be liable for any acts reasonably
\n7 designed to comply with this subsection or
\n8 reasonably arising from such order; and
\n9 (ii) any\u2014
\n10 (I) actions taken by customers of
\n11 such entity to circumvent any restric-
\n12 tion on access to the Internet site, or
\n13 portion thereof that is subject to such
\n14 order, that is instituted pursuant to
\n15 this subsection, or
\n16 (II) act, failure, or inability to re-
\n17 strict access to an Internet site or
\n18 portion thereof that is subject to such
\n19 order, despite good faith efforts to
\n20 comply with such order by such enti-
\n21 ty,
\n22 shall not be used by any person in any
\n23 claim or cause of action against such enti-
\n24 ty.
\n25 (e) MODIFICATION OR VACATION OF ORDERS.\u2014
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\n1 (1) IN GENERAL.\u2014At any time after the
\n2 issuance of an order under subsection (c), or an
\n3 amended order issued under subsection (f), with re-
\n4 spect to an Internet site dedicated to theft of U.S.
\n5 property, a motion to modify, suspend, or vacate the
\n6 order may be filed by\u2014
\n7 (A) any person, or owner or operator of
\n8 property, that is subject to the order;
\n9 (B) any registrant of the domain name, or
\n10 the owner or operator, of such Internet site;
\n11 (C) any domain name registrar, registry,
\n12 or other domain name registration authority
\n13 that has registered or assigned the domain
\n14 name of such Internet site; or
\n15 (D) any entity that has been served with
\n16 a copy of an order under subsection (d), or an
\n17 amended order under subsection (f), that re-
\n18 quires such entity to take action prescribed in
\n19 that subsection.
\n20 (2) RELIEF.\u2014Relief under this subsection shall
\n21 be proper if the court finds that\u2014
\n22 (A) the Internet site subject to the order
\n23 is no longer, or never was, an Internet site
\n24 dedicated to theft of U.S. property; or
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\n1 (B) the interests of justice otherwise re-
\n2 quire that the order be modified, suspended, or
\n3 vacated.
\n4 (3) CONSIDERATION.\u2014In making a relief deter-
\n5 mination under paragraph (2), a court may consider
\n6 whether the domain name of the Internet site has
\n7 expired or has been re-registered by an entity other
\n8 than the entity that is subject to the order with re-
\n9 spect to which the motion under paragraph (1) is
\n10 brought.
\n11 (4) INTERVENTION.\u2014An entity required to take
\n12 action pursuant to subsection (d) if an order issues
\n13 under subsection (c) may intervene at any time in
\n14 any action commenced under subsection (c) that
\n15 may result in such order, or in any action to modify,
\n16 suspend, or vacate such order under this subsection.
\n17 (f) AMENDED ORDERS.\u2014The qualifying plaintiff, if
\n18 alleging that an Internet site previously adjudicated in an
\n19 action under this section to be an Internet site dedicated
\n20 to theft of U.S. property is accessible or has been reconsti-
\n21 tuted at a different domain name or Internet Protocol ad-
\n22 dress, may petition the court to amend the order issued
\n23 under this section accordingly.
\n24 (g) REPORTING OF ORDERS.\u2014
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\n1 (1) IN GENERAL.\u2014The qualifying plaintiff shall
\n2 inform the Intellectual Property Enforcement Coor-
\n3 dinator of any court order issued under subsection
\n4 (c) or amended order issued under subsection (f).
\n5 (2) ALTERATIONS.\u2014Upon the modification,
\n6 suspension, expiration, or vacation of a court order
\n7 issued under subsection (c) or an amended order
\n8 issued under subsection (f), the qualifying plaintiff
\n9 shall, and the defendant may, so inform the Intellec-
\n10 tual Property Enforcement Coordinator.
\n11 SEC. 104. IMMUNITY FOR TAKING VOLUNTARY ACTION
\n12 AGAINST SITES DEDICATED TO THEFT OF U.S.
\n13 PROPERTY.
\n14 No cause of action shall lie in any Federal or State
\n15 court or administrative agency against, no person may rely
\n16 in any claim or cause of action against, and no liability
\n17 for damages to any person shall be granted against, a
\n18 service provider, payment network provider, Internet ad-
\n19 vertising service, advertiser, Internet search engine, do-
\n20 main name registry, or domain name registrar for taking
\n21 any action described in section 102(c)(2), section
\n22 103(d)(2), or section 103(b) with respect to an Internet
\n23 site, or otherwise voluntarily blocking access to or ending
\n24 financial affiliation with an Internet site, in the reasonable
\n25 belief that\u2014
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\n1 (1) the Internet site is a foreign infringing site
\n2 or is an Internet site dedicated to theft of U.S. prop-
\n3 erty; and
\n4 (2) the action is consistent with the entity\u2019s
\n5 terms of service or other contractual rights.
\n6 SEC. 105. IMMUNITY FOR TAKING VOLUNTARY ACTION
\n7 AGAINST SITES THAT ENDANGER PUBLIC
\n8 HEALTH.
\n9 (a) REFUSAL OF SERVICE.\u2014A service provider, pay-
\n10 ment network provider, Internet advertising service, ad-
\n11 vertiser, Internet search engine, domain name registry, or
\n12 domain name registrar, acting in good faith and based on
\n13 credible evidence, may stop providing or refuse to provide
\n14 services to an Internet site that endangers the public
\n15 health.
\n16 (b) IMMUNITY FROM LIABILITY.\u2014An entity de-
\n17 scribed in subsection (a), including its directors, officers,
\n18 employees, or agents, that ceases or refuses to provide
\n19 services under subsection (a) shall not be liable to any per-
\n20 son under any Federal or State law for such action.
\n21 (c) DEFINITIONS.\u2014In this section:
\n22 (1) ADULTERATED.\u2014The term \u2018\u2018adulterated\u2019\u2019
\n23 has the meaning given that term in section 501 of
\n24 the Federal Food, Drug, and Cosmetic Act (21
\n25 U.S.C. 351).
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\n1 (2) INTERNET SITE THAT ENDANGERS THE
\n2 PUBLIC HEALTH.\u2014The term \u2018\u2018Internet site that en-
\n3 dangers the public health\u2019\u2019 means an Internet site
\n4 that is primarily designed or operated for the pur-
\n5 pose of, has only limited purpose or use other than,
\n6 or is marketed by its operator or another acting in
\n7 concert with that operator for use in\u2014
\n8 (A) offering, selling, dispensing, or distrib-
\n9 uting any prescription medication, and does so
\n10 regularly without a valid prescription; or
\n11 (B) offering, selling, dispensing, or distrib-
\n12 uting any prescription medication that is adul-
\n13 terated or misbranded.
\n14 (3) MISBRANDED.\u2014the term \u2018\u2018misbranded\u2019\u2019 has
\n15 the meaning given that term in section 502 of the
\n16 Federal Food, Drug, and Cosmetic Act (21 U.S.C.
\n17 352).
\n18 (4) PRESCRIPTION MEDICATION.\u2014
\n19 (A) PRESCRIPTION MEDICATION.\u2014The
\n20 term \u2018\u2018prescription medication\u2019\u2019 means a drug
\n21 that is subject to section 503(b) of the Federal
\n22 Food, Drug, and Cosmetic Act (21 U.S.C.
\n23 353(b)).
\n24 (B) DRUG.\u2014The term \u2018\u2018drug\u2019\u2019 has the
\n25 meaning given that term in section 201(g)(1) of
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\n1 the Federal Food Drug, and Cosmetic Act (21
\n2 U.S.C. 321(g)(1)).
\n3 (5) VALID PRESCRIPTION.\u2014The term \u2018\u2018valid
\n4 prescription\u2019\u2019 has the meaning given that term in
\n5 section 309(e)(2)(A) of the Controlled Substances
\n6 Act (21 U.S.C. 829(e)(2)(A)).
\n7 SEC. 106. GUIDELINES AND STUDY.
\n8 (a) GUIDELINES.\u2014The Attorney General shall\u2014
\n9 (1) provide appropriate resources and proce-
\n10 dures for case management and development to ef-
\n11 fect timely disposition of actions brought under this
\n12 title;
\n13 (2) develop a deconfliction process in consulta-
\n14 tion with appropriate law enforcement agencies, in-
\n15 cluding U.S. Immigration and Customs Enforce-
\n16 ment, to coordinate enforcement activities under this
\n17 title;
\n18 (3) publish procedures developed in consultation
\n19 with appropriate law enforcement agencies, including
\n20 U.S. Immigration and Customs Enforcement, to re-
\n21 ceive information from the public relevant to the en-
\n22 forcement of this title; and
\n23 (4) provide guidance to intellectual property
\n24 rights holders about what information such rights
\n25 holders should provide to assist in initiating an inVerDate Mar 15 2010 21:23 Oct 27, 2011 Jkt 019200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\\BILLS\\H3261.IH H3261
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\n1 vestigation or to supplement an ongoing investiga-
\n2 tion pursuant to this title.
\n3 (b) STUDY.\u2014
\n4 (1) NATURE OF STUDY.\u2014The Register of Copy-
\n5 rights, in consultation with appropriate departments
\n6 and agencies of the United States and other stake-
\n7 holders, shall conduct a study on the enforcement
\n8 and effectiveness of this title and on any need to
\n9 amend the provisions of this title to adapt to emerg-
\n10 ing technologies.
\n11 (2) REPORTS TO CONGRESS.\u2014Not later than 2
\n12 years after the date of the enactment of this Act, the
\n13 Register of Copyrights shall submit to the Commit-
\n14 tees on the Judiciary of the House of Representa-
\n15 tives and the Senate a report containing the results
\n16 of the study conducted under this subsection and
\n17 any recommendations that the Register may have as
\n18 a result of the study.
\n19 SEC. 107. DENYING U.S. CAPITAL TO NOTORIOUS FOREIGN
\n20 INFRINGERS.
\n21 (a) IDENTIFICATION AND RECOMMENDATIONS RE-
\n22 GARDING NOTORIOUS FOREIGN INFRINGERS.\u2014
\n23 (1) IN GENERAL.\u2014Using existing resources, the
\n24 Intellectual Property Enforcement Coordinator, in
\n25 consultation with the Secretaries of Treasury and
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\n1 Commerce, the United States Trade Representative,
\n2 the Chairman of the Securities and Exchange Com-
\n3 mission, and the heads of other departments and ap-
\n4 propriate agencies, shall identify and conduct an
\n5 analysis of notorious foreign infringers whose activi-
\n6 ties cause significant harm to holders of intellectual
\n7 property rights in the United States.
\n8 (2) PUBLIC INPUT.\u2014In carrying out paragraph
\n9 (1), the Intellectual Property Enforcement Coordi-
\n10 nator shall solicit and give consideration to the views
\n11 and recommendations of members of the public, in-
\n12 cluding holders of intellectual property rights in the
\n13 United States.
\n14 (b) REPORT TO CONGRESS.\u2014The Intellectual Prop-
\n15 erty Enforcement Coordinator shall, not later than 6
\n16 months after the date of the enactment of this Act, submit
\n17 to the Committees on the Judiciary of the House of Rep-
\n18 resentatives and the Senate a report that includes the fol-
\n19 lowing:
\n20 (1) An analysis of notorious foreign infringers
\n21 and a discussion of how these infringers violate in-
\n22 dustry norms regarding the protection of intellectual
\n23 property.
\n24 (2) An analysis of the significant harm inflicted
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\n1 nesses, and intellectual property industries in the
\n2 United States and abroad.
\n3 (3) An examination of whether notorious for-
\n4 eign infringers have attempted to or succeeded in ac-
\n5 cessing capital markets in the United States for
\n6 funding or public offerings.
\n7 (4) An analysis of the adequacy of relying upon
\n8 foreign governments to pursue legal action against
\n9 notorious foreign infringers.
\n10 (5) A discussion of specific policy recommenda-
\n11 tions to deter the activities of notorious foreign in-
\n12 fringers and encourage foreign businesses to adopt
\n13 industry norms that promote the protection of intel-
\n14 lectual property globally, including addressing\u2014
\n15 (A) whether notorious foreign infringers
\n16 that engage in significant infringing activity
\n17 should be prohibited by the laws of the United
\n18 States from seeking to raise capital in the
\n19 United States, including offering stock for sale
\n20 to the public; and
\n21 (B) whether the United States Government
\n22 should initiate a process to identify and des-
\n23 ignate foreign entities from a list of notorious
\n24 foreign infringers that would be prohibited from
\n25 raising capital in the United States.
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\n1 TITLE II\u2014ADDITIONAL EN-
\n2 HANCEMENTS TO COMBAT IN-
\n3 TELLECTUAL PROPERTY
\n4 THEFT
\n5 SEC. 201. STREAMING OF COPYRIGHTED WORKS IN VIOLA-
\n6 TION OF CRIMINAL LAW.
\n7 (a) TITLE 17 AMENDMENTS.\u2014Section 506(a) of title
\n8 17, United States Code, is amended to read as follows:
\n9 \u2018\u2018(a) CRIMINAL INFRINGEMENT.\u2014
\n10 \u2018\u2018(1) IN GENERAL.\u2014Any person who willfully
\n11 infringes a copyright shall be punished as provided
\n12 under section 2319 of title 18, if the infringement
\n13 was committed\u2014
\n14 \u2018\u2018(A) for purposes of commercial advantage
\n15 or private financial gain;
\n16 \u2018\u2018(B) by the reproduction or distribution,
\n17 including by electronic means, during any 180-
\n18 day period, of 1 or more copies or phonorecords
\n19 of 1 or more copyrighted works, or by the pub-
\n20 lic performance by means of digital trans-
\n21 mission, during any 180-day period, of 1 or
\n22 more copyrighted works, when the total retail
\n23 value of the copies or phonorecords, or of the
\n24 public performances, is more than $1,000; or
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\n1 \u2018\u2018(C) by the distribution or public perform-
\n2 ance of a work being prepared for commercial
\n3 dissemination, by making it available on a com-
\n4 puter network accessible to members of the
\n5 public, if such person knew or should have
\n6 known that the work was intended for commer-
\n7 cial dissemination.
\n8 \u2018\u2018(2) EVIDENCE.\u2014For purposes of this sub-
\n9 section, evidence of reproduction, distribution, or
\n10 public performance of a copyrighted work, by itself,
\n11 shall not be sufficient to establish willful infringe-
\n12 ment of a copyright.
\n13 \u2018\u2018(3) DEFINITION.\u2014In this subsection, the term
\n14 \u2018work being prepared for commercial dissemination\u2019
\n15 means\u2014
\n16 \u2018\u2018(A) a computer program, a musical work,
\n17 a motion picture or other audiovisual work, or
\n18 a sound recording, if, at the time of unauthor-
\n19 ized distribution or public performance\u2014
\n20 \u2018\u2018(i)(I) the copyright owner has a rea-
\n21 sonable expectation of commercial distribu-
\n22 tion; and
\n23 \u2018\u2018(II) the copies or phonorecords of
\n24 the work have not been commercially dis-
\n25 tributed in the United States by or with
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\n1 the authorization of the copyright owner;
\n2 or
\n3 \u2018\u2018(ii)(I) the copyright owner does not
\n4 intend to offer copies of the work for com-
\n5 mercial distribution but has a reasonable
\n6 expectation of other forms of commercial
\n7 dissemination of the work; and
\n8 \u2018\u2018(II) the work has not been commer-
\n9 cially disseminated to the public in the
\n10 United States by or with the authorization
\n11 of the copyright owner;
\n12 \u2018\u2018(B) a motion picture, if, at the time of
\n13 unauthorized distribution or public perform-
\n14 ance, the motion picture\u2014
\n15 \u2018\u2018(i)(I) has been made available for
\n16 viewing in a motion picture exhibition facil-
\n17 ity; and
\n18 \u2018\u2018(II) has not been made available in
\n19 copies for sale to the general public in the
\n20 United States by or with the authorization
\n21 of the copyright owner in a format in-
\n22 tended to permit viewing outside a motion
\n23 picture exhibition facility; or
\n24 \u2018\u2018(ii) had not been commercially dis-
\n25 seminated to the public in the United
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\n1 States by or with the authorization of the
\n2 copyright owner more than 24 hours before
\n3 the unauthorized distribution or public per-
\n4 formance.\u2019\u2019.
\n5 (b) TITLE 18 AMENDMENTS.\u2014Section 2319 of title
\n6 18, United States Code, is amended\u2014
\n7 (1) in subsection (b)(1), by striking \u2018\u2018during
\n8 any 180-day period\u2019\u2019 and all that follows and insert
\n9 \u2018\u2018of at least 10 copies or phonorecords, or of at least
\n10 10 public performances by means of digital trans-
\n11 mission, of 1 or more copyrighted works, during any
\n12 180-day period, which have a total retail value of
\n13 more than $2,500;\u2019\u2019;
\n14 (2) in subsection (c)\u2014
\n15 (A) in paragraph (1), by striking \u2018\u2018of 10 or
\n16 more copies or phonorecords\u2019\u2019 and all that fol-
\n17 lows and inserting \u2018\u2018including by electronic
\n18 means, of at least 10 copies or phonorecords, or
\n19 of at least 10 public performances by means of
\n20 digital transmission, of 1 or more copyrighted
\n21 works, during any 180-day period, which have
\n22 a total retail value of more than $2,500;\u2019\u2019; and
\n23 (B) in paragraph (3), by striking \u2018\u2018if the
\n24 offense\u2019\u2019 and all that follows and inserting \u2018\u2018in
\n25 any other case;\u2019\u2019;
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\n1 (3) in subsection (d)(4), by striking \u2018\u2018under
\n2 paragraph (2)\u2019\u2019 and inserting \u2018\u2018committed for pur-
\n3 poses of commercial advantage or private financial
\n4 gain under subsection (a)\u2019\u2019;
\n5 (4) in subsection (f)\u2014
\n6 (A) by amending paragraph (2) to read as
\n7 follows:
\n8 \u2018\u2018(2) the terms \u2018reproduction\u2019, \u2018distribution\u2019,
\n9 and \u2018public performance\u2019 refer to the exclusive rights
\n10 of a copyright owner under paragraphs (1), (3), (4),
\n11 and (6), respectively, of section 106 (relating to ex-
\n12 clusive rights in copyrighted works), as limited by
\n13 sections 107 through 122, of title 17; and\u2019\u2019;
\n14 (B) in paragraph (3), by striking \u2018\u2018; and\u2019\u2019
\n15 and inserting a period; and
\n16 (C) by striking paragraph (4); and
\n17 (5) by adding at the end the following new sub-
\n18 section:
\n19 \u2018\u2018(g) EVIDENCE OF TOTAL RETAIL VALUE.\u2014For
\n20 purposes of this section and section 506(a) of title 17,
\n21 total retail value may be shown by evidence of\u2014
\n22 \u2018\u2018(1) the total retail price that persons receiving
\n23 the reproductions, distributions, or public perform-
\n24 ances constituting the offense would have paid to reVerDate Mar 15 2010 21:23 Oct 27, 2011 Jkt 019200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 E:\\BILLS\\H3261.IH H3261
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\n1 ceive such reproductions, distributions, or public per-
\n2 formances lawfully;
\n3 \u2018\u2018(2) the total economic value of the reproduc-
\n4 tions, distributions, or public performances to the in-
\n5 fringer or to the copyright owner, as shown by evi-
\n6 dence of fee, advertising, or other revenue that was
\n7 received by the person who commits the offense, or
\n8 that the copyright owner would have been entitled to
\n9 receive had such reproductions, distributions, or
\n10 public performances been offered lawfully; or
\n11 \u2018\u2018(3) the total fair market value of licenses to
\n12 offer the type of reproductions, distributions, or pub-
\n13 lic performances constituting the offense.\u2019\u2019.
\n14 (c) RULE OF CONSTRUCTION.\u2014Any person acting
\n15 with a good faith reasonable basis in law to believe that
\n16 the person\u2019s conduct is lawful shall not be considered to
\n17 have acted willfully for purposes of the amendments made
\n18 by this section. Such person includes, but is not limited
\n19 to, a person engaged in conduct forming the basis of a
\n20 bona fide commercial dispute over the scope of existence
\n21 of a contract or license governing such conduct where such
\n22 person has a reasonable basis in law to believe that such
\n23 conduct is noninfringing. Nothing in this subsection shall
\n24 affect the application or interpretation of the willfulness
\n25 requirement in any other provision of civil or criminal law.
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\n1 SEC. 202. TRAFFICKING IN INHERENTLY DANGEROUS
\n2 GOODS OR SERVICES.
\n3 Section 2320 of title 18, United States Code, is
\n4 amended as follows:
\n5 (1) Subsection (a) is amended to read as fol-
\n6 lows:
\n7 \u2018\u2018(1) IN GENERAL.\u2014
\n8 \u2018\u2018(A) OFFENSES.\u2014Whoever\u2014
\n9 \u2018\u2018(i) intentionally traffics or attempts
\n10 to traffic in goods or services and know-
\n11 ingly uses a counterfeit mark on or in con-
\n12 nection with such goods or services,
\n13 \u2018\u2018(ii) intentionally traffics or attempts
\n14 to traffic in labels, patches, stickers, wrap-
\n15 pers, badges, emblems, medallions, charms,
\n16 boxes, containers, cans, cases, hangtags,
\n17 documentation, or packaging of any type
\n18 or nature, knowing that a counterfeit mark
\n19 has been applied thereto, the use of which
\n20 is likely to cause confusion, to cause mis-
\n21 take, or to deceive, or
\n22 \u2018\u2018(iii) intentionally imports, exports, or
\n23 traffics in counterfeit drugs or inten-
\n24 tionally participates in or knowingly aids
\n25 drug counterfeiting,
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\n1 shall, if an individual, be fined not more than
\n2 $2,000,000 or imprisoned not more than 10
\n3 years, or both, and, if a person other than an
\n4 individual, be fined not more than $5,000,000.
\n5 \u2018\u2018(B) SUBSEQUENT OFFENSES.\u2014In the
\n6 case of an offense by a person under this para-
\n7 graph that occurs after that person is convicted
\n8 of another offense under this paragraph, the
\n9 person convicted, if an individual, shall be fined
\n10 not more than $5,000,000 or imprisoned not
\n11 more than 20 years, or both, and if other than
\n12 an individual, shall be fined not more than
\n13 $15,000,000.
\n14 \u2018\u2018(2) SERIOUS BODILY HARM OR DEATH.\u2014
\n15 \u2018\u2018(A) SERIOUS BODILY HARM.\u2014If the of-
\n16 fender knowingly or recklessly causes or at-
\n17 tempts to cause serious bodily injury from con-
\n18 duct in violation of paragraph (1), the penalty
\n19 shall be, for an individual, a fine of not more
\n20 than $5,000,000 or imprisonment for any term
\n21 of years or for life, or both, and for other than
\n22 an individual, a fine of not more than
\n23 $15,000,000.
\n24 \u2018\u2018(B) DEATH.\u2014If the offender knowingly
\n25 or recklessly causes or attempts to cause death
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\n1 from conduct in violation of paragraph (1), the
\n2 penalty shall be, for an individual, a fine of not
\n3 more than $5,000,000 or imprisonment for any
\n4 term of years or for life, or both, and for other
\n5 than an individual, a fine of not more than
\n6 $15,000,000.
\n7 \u2018\u2018(3) MILITARY GOODS OR SERVICES.\u2014
\n8 \u2018\u2018(A) IN GENERAL.\u2014A person who com-
\n9 mits an offense under paragraph (1) shall be
\n10 punished in accordance with subparagraph (B)
\n11 if\u2014
\n12 \u2018\u2018(i) the offense involved a good or
\n13 service described in paragraph (1) that if
\n14 it malfunctioned, failed, or was com-
\n15 promised, could reasonably be foreseen to
\n16 cause\u2014
\n17 \u2018\u2018(I) serious bodily injury or
\n18 death;
\n19 \u2018\u2018(II) disclosure of classified in-
\n20 formation;
\n21 \u2018\u2018(III) impairment of combat op-
\n22 erations; or
\n23 \u2018\u2018(IV) other significant harm\u2014
\n24 \u2018\u2018(aa) to a member\u2014
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\n1 \u2018\u2018(AA) of the Armed
\n2 Forces; or
\n3 \u2018\u2018(BB) of a Federal,
\n4 State, or local law enforce-
\n5 ment agency; or
\n6 \u2018\u2018(bb) to national security or
\n7 critical infrastructure; and
\n8 \u2018\u2018(ii) the person had knowledge that
\n9 the good or service is falsely identified as
\n10 meeting military standards or is intended
\n11 for use in a military or national security
\n12 application, or a law enforcement or crit-
\n13 ical infrastructure application.
\n14 \u2018\u2018(B) PENALTIES.\u2014
\n15 \u2018\u2018(i) INDIVIDUAL.\u2014An individual who
\n16 commits an offense described in subpara-
\n17 graph (A) shall be fined not more than
\n18 $5,000,000, imprisoned for not more than
\n19 20 years, or both.
\n20 \u2018\u2018(ii) PERSON OTHER THAN AN INDI-
\n21 VIDUAL.\u2014A person other than an indi-
\n22 vidual that commits an offense described in
\n23 subparagraph (A) shall be fined not more
\n24 than $15,000,000.
\n25 \u2018\u2018(C) SUBSEQUENT OFFENSES.\u2014
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\n1 \u2018\u2018(i) INDIVIDUAL.\u2014An individual who
\n2 commits an offense described in subpara-
\n3 graph (A) after the individual is convicted
\n4 of an offense under subparagraph (A) shall
\n5 be fined not more than $15,000,000, im-
\n6 prisoned not more than 30 years, or both.
\n7 \u2018\u2018(ii) PERSON OTHER THAN AN INDI-
\n8 VIDUAL.\u2014A person other than an indi-
\n9 vidual that commits an offense described in
\n10 subparagraph (A) after the person is con-
\n11 victed of an offense under subparagraph
\n12 (A) shall be fined not more than
\n13 $30,000,000.\u2019\u2019.
\n14 (2) Subsection (e) is amended\u2014
\n15 (A) in paragraph (1), by striking the pe-
\n16 riod at the end and inserting a semicolon;
\n17 (B) in paragraph (3), by striking \u2018\u2018and\u2019\u2019 at
\n18 the end;
\n19 (C) in paragraph (4), by striking the pe-
\n20 riod at the end and inserting a semicolon; and
\n21 (D) by adding at the end the following:
\n22 \u2018\u2018(5) the term \u2018counterfeit drug\u2019 has the mean-
\n23 ing given that term in section 201(g)(2) of the Fed-
\n24 eral Food Drug, and Cosmetic Act (21 U.S.C.
\n25 321(g)(2));
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\n1 \u2018\u2018(6) the term \u2018critical infrastructure\u2019 has the
\n2 meaning given that term in section 2339D(c);
\n3 \u2018\u2018(7) the term \u2018drug counterfeiting\u2019 means any
\n4 act prohibited by section 301(i) of the Federal Food
\n5 Drug, and Cosmetic Act (21 U.S.C. 331(i));
\n6 \u2018\u2018(8) the term \u2018final dosage form\u2019 has the mean-
\n7 ing given that term in section 735(4) of the Federal
\n8 Food, Drug, and Cosmetic Act (21 U.S.C. 379g(4));
\n9 \u2018\u2018(9) the term \u2018falsely identified as meeting mili-
\n10 tary standards\u2019 relating to a good or service means
\n11 there is a material misrepresentation that the good
\n12 or service meets a standard, requirement, or speci-
\n13 fication issued by the Department of Defense, an
\n14 Armed Force, or a reserve component;
\n15 \u2018\u2018(10) the term \u2018use in a military or national se-
\n16 curity application\u2019 means the use of a good or serv-
\n17 ice, independently, in conjunction with, or as a com-
\n18 ponent of another good or service\u2014
\n19 \u2018\u2018(A) during the performance of the official
\n20 duties of the Armed Forces of the United
\n21 States or the reserve components of the Armed
\n22 Forces; or
\n23 \u2018\u2018(B) by the United States to perform or
\n24 directly support\u2014
\n25 \u2018\u2018(i) combat operations; or
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\n1 \u2018\u2018(ii) critical national defense or na-
\n2 tional security functions; and
\n3 \u2018\u2018(11) the term \u2018use in a law enforcement or
\n4 critical infrastructure application\u2019 means the use of
\n5 a good or service, independently, in conjunction
\n6 with, or as a component of, another good or service
\n7 by a person who is directly engaged in\u2014
\n8 \u2018\u2018(A) Federal, State, or local law enforce-
\n9 ment; or
\n10 \u2018\u2018(B) an official function pertaining to crit-
\n11 ical infrastructure.\u2019\u2019.
\n12 SEC. 203. PROTECTING U.S. BUSINESSES FROM FOREIGN
\n13 AND ECONOMIC ESPIONAGE.
\n14 (a) FOR OFFENSES COMMITTED BY INDIVIDUALS.\u2014
\n15 Section 1831(a) of title 18, United States Code, is amend-
\n16 ed, in the matter after paragraph (5)\u2014
\n17 (1) by striking \u2018\u201815 years\u2019\u2019 and inserting \u2018\u201820
\n18 years\u2019\u2019; and
\n19 (2) by striking \u2018\u2018not more than $500,000\u2019\u2019 and
\n20 inserting \u2018\u2018not less than $1,000,000 and not more
\n21 than $5,000,000\u2019\u2019.
\n22 (b) FOR OFFENSES COMMITTED BY ORGANIZA-
\n23 TIONS.\u2014Section 1831(b) of such title is amended by strik-
\n24 ing \u2018\u2018$10,000,000\u2019\u2019 and inserting \u2018\u2018not more than the
\n25 greater of $10,000,000 or 3 times the value of the stolen
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\n1 trade secret to the organization (including expenses for re-
\n2 search and design or other costs of reproducing the trade
\n3 secret that the organization has thereby avoided)\u2019\u2019.
\n4 SEC. 204. AMENDMENTS TO SENTENCING GUIDELINES.
\n5 Not later than 180 days after the date of the enact-
\n6 ment of this Act, pursuant to its authority under section
\n7 994(p) of title 28, United States Code, the United States
\n8 Sentencing Commission shall\u2014
\n9 (1) review, and if appropriate, amend Federal
\n10 Sentencing Guidelines and policy statements applica-
\n11 ble to persons convicted of\u2014
\n12 (A) intellectual property offenses;
\n13 (B) an offense under section 2320(a) of
\n14 title 18, United States Code; or
\n15 (C) an offense under section 1831 of title
\n16 18, United States Code;
\n17 (2) in carrying out such review, consider
\n18 amending such Guidelines and policy statements
\n19 to\u2014
\n20 (A) apply an appropriate offense level en-
\n21 hancement for intellectual property offenses
\n22 committed in connection with an organized
\n23 criminal enterprise;
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\n1 (B) apply an appropriate offense level en-
\n2 hancement to the simple misappropriation of a
\n3 trade secret;
\n4 (C) apply an additional appropriate offense
\n5 level enhancement if the defendant transmits or
\n6 attempts to transmit the stolen trade secret
\n7 outside of the United States and an additional
\n8 appropriate enhancement if the defendant in-
\n9 stead commits economic espionage;
\n10 (D) provide that when a defendant trans-
\n11 mits trade secrets outside of the United States
\n12 or commits economic espionage, that the de-
\n13 fendant should face a minimum offense level;
\n14 (E) provide for an offense level enhance-
\n15 ment for Guidelines relating to the theft of
\n16 trade secrets and economic espionage, including
\n17 trade secrets transferred or attempted to be
\n18 transferred outside of the United States;
\n19 (F) apply an appropriate offense level en-
\n20 hancement and minimum offense level for of-
\n21 fenses under section 2320(a) of title 18, United
\n22 States Code, that involve a product intended for
\n23 use in a military or national security applica-
\n24 tion, or a law enforcement or critical infrastruc-
\n25 ture application;
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\n1 (G) ensure that the Guidelines and policy
\n2 statements (including section 2B5.3 of the Fed-
\n3 eral Sentencing Guidelines (and any successor
\n4 thereto)) reflect\u2014
\n5 (i) the serious nature of the offenses
\n6 described in section 2320(a) of title 18,
\n7 United States Code;
\n8 (ii) the need for an effective deterrent
\n9 and appropriate punishment to prevent of-
\n10 fenses under section 2320(a) of title 18,
\n11 United States Code; and
\n12 (iii) the effectiveness of incarceration
\n13 in furthering the objectives described in
\n14 clauses (i) and (ii); and
\n15 (H) ensure reasonable consistency with
\n16 other relevant directives and Guidelines and
\n17 Federal statutes;
\n18 (3) submit to Congress a report detailing the
\n19 Commission\u2019s actions with respect to each potential
\n20 amendment described in paragraph (2);
\n21 (4) make such conforming amendments to the
\n22 Federal Sentencing Guidelines as the Commission
\n23 determines necessary to achieve consistency with
\n24 other Guideline provisions and applicable law; and
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\n1 (5) promulgate the Guidelines, policy state-
\n2 ments, or amendments provided for in this section
\n3 as soon as practicable in accordance with the proce-
\n4 dure set forth in section 21(a) of the Sentencing Act
\n5 of 1987 (28 U.S.C. 994 note), as though the author-
\n6 ity under that Act had not expired.
\n7 SEC. 205. DEFENDING INTELLECTUAL PROPERTY RIGHTS
\n8 ABROAD.
\n9 (a) RESOURCES TO PROTECT INTELLECTUAL PROP-
\n10 ERTY RIGHTS.\u2014
\n11 (1) POLICY.\u2014The Secretary of State and the
\n12 Secretary of Commerce, in consultation with the
\n13 Register of Copyrights, shall ensure that the protec-
\n14 tion in foreign countries of the intellectual property
\n15 rights of United States persons is a significant com-
\n16 ponent of United States foreign and commercial pol-
\n17 icy in general, and in relations with individual coun-
\n18 tries in particular.
\n19 (2) DEDICATION OF RESOURCES.\u2014The Sec-
\n20 retary of State and the Secretary of Commerce, in
\n21 consultation with the Register of Copyrights, and
\n22 the heads of other appropriate departments and
\n23 agencies, shall ensure that adequate resources are
\n24 available at the United States embassy or diplomatic
\n25 mission (as the case may be) in any country that is
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\n1 identified under section 182(a)(1) of the Trade Act
\n2 of 1974 (19 U.S.C. 2242(a)(1)) to ensure\u2014
\n3 (A) aggressive support for enforcement ac-
\n4 tion against violations of the intellectual prop-
\n5 erty rights of United States persons in such
\n6 country;
\n7 (B) cooperation with and support for the
\n8 host government\u2019s efforts to conform its appli-
\n9 cable laws, regulations, practices, and processes
\n10 to enable the host government to honor its
\n11 international and bilateral obligations with re-
\n12 spect to the protection of intellectual property
\n13 rights;
\n14 (C) consistency with the policy and coun-
\n15 try-specific priorities set forth in the most re-
\n16 cent report of USTR under such section
\n17 182(a)(1); and
\n18 (D) support for holders of United States
\n19 intellectual property rights and industries whose
\n20 access to foreign markets is improperly re-
\n21 stricted by intellectual property related issues.
\n22 (b) NEW APPOINTMENTS.\u2014
\n23 (1) APPOINTMENTS AND ADMINISTRATION.\u2014
\n24 The Secretary of State and the Secretary of Com-
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\n1 rights, shall appoint at least one intellectual prop-
\n2 erty attache\u00b4 to be assigned to the United States em-
\n3 bassy or diplomatic mission (as the case may be) in
\n4 a country in each geographic region covered by a re-
\n5 gional bureau of the Department of State. The Di-
\n6 rector of the Patent and Trademark Office shall
\n7 maintain authority over hiring, personnel ratings,
\n8 and objectives for the attache\u00b4s, in consultation with
\n9 the Secretary of State. Depending on experience and
\n10 expertise, intellectual property attache\u00b4s shall be des-
\n11 ignated as the diplomatic rank in-mission of First
\n12 Secretary or Counselor.
\n13 (2) REGIONS DEFINED.\u2014The geographic re-
\n14 gions referred to in paragraph (1) are the following:
\n15 (A) Africa.
\n16 (B) Europe and Eurasia.
\n17 (C) East Asia and the Pacific.
\n18 (D) The Near East.
\n19 (E) South and Central Asia and the Pa-
\n20 cific.
\n21 (F) The Western Hemisphere.
\n22 (3) DUTIES.\u2014The intellectual property attache\u00b4s
\n23 appointed under this subsection shall focus primarily
\n24 on intellectual property matters, including the devel-
\n25 opment, protection, and enforcement of applicable
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\n1 law. Each intellectual property attache\u00b4 shall work, in
\n2 accordance with guidance from the Director, and in
\n3 coordination with appropriate staff at the Depart-
\n4 ments of Commerce and State and the Copyright
\n5 Office, to advance the policy goals and priorities of
\n6 the United States Government. Those policy goals
\n7 and priorities shall be consistent with USTR\u2019s re-
\n8 ports under section 182(a)(1) of the Trade Act of
\n9 1974. The intellectual property attache\u00b4s shall work
\n10 with United States holders of intellectual property
\n11 rights and industry to address intellectual property
\n12 rights violations in the countries where the attache\u00b4s
\n13 are assigned.
\n14 (c) PRIORITY ASSIGNMENTS.\u2014
\n15 (1) IN GENERAL.\u2014Subject to paragraph (2), in
\n16 designating the United States embassies or diplo-
\n17 matic missions where attache\u00b4s will be assigned under
\n18 subsection (b), the Secretary of State and the Sec-
\n19 retary of Commerce shall give priority to countries
\n20 where the activities of an attache\u00b4 are likely to
\n21 achieve the greatest potential benefit in reducing in-
\n22 tellectual property infringement in the United States
\n23 market, to advance the intellectual property rights of
\n24 United States persons and their licensees, and to ad-
\n25 vance the interests of United States persons who
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\n1 may otherwise be harmed by violations of intellectual
\n2 property rights in those countries.
\n3 (2) ASSIGNMENTS TO PRIORITY COUNTRIES.\u2014
\n4 In carrying out paragraph (1), the Secretary of
\n5 State and the Secretary of Commerce shall consider
\n6 assigning intellectual property attache\u00b4s\u2014
\n7 (A) to the countries that have been identi-
\n8 fied under section 182(a)(1) of the Trade Act
\n9 of 1974 (19 U.S.C. 2242(a)(1)); and
\n10 (B) to countries of critical economic impor-
\n11 tance to the advancement of United States in-
\n12 tellectual property rights and interests.
\n13 (d) TRAINING.\u2014The Secretary of State and the Sec-
\n14 retary of Commerce shall ensure that each intellectual
\n15 property attache\u00b4 appointed under subsection (b) is fully
\n16 trained for the responsibilities of the position before as-
\n17 suming duties at the United States embassy or diplomatic
\n18 mission to which the attache\u00b4 is assigned.
\n19 (e) COORDINATION.\u2014The activities of intellectual
\n20 property attache\u00b4s under this section shall be determined
\n21 in consultation with the Intellectual Property Enforcement
\n22 Coordinator. The Director shall assist in coordinating the
\n23 policy priorities and activities of the intellectual property
\n24 attache\u00b4s and oversee administrative and personnel mat-
\n25 ters.
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\n1 (f) TRAINING AND TECHNICAL ASSISTANCE.\u2014
\n2 (1) CONSISTENCY.\u2014Using existing resources,
\n3 all training and technical assistance provided by in-
\n4 tellectual property attache\u00b4s appointed under sub-
\n5 section (b), or under other authority, relating to in-
\n6 tellectual property enforcement and protection
\n7 abroad shall be designed to be consistent with the
\n8 policy and country-specific priorities set forth in the
\n9 most recent report of USTR under section 182(a) of
\n10 the Trade Act of 1974.
\n11 (2) ROLE OF IPEC.\u2014Such training and tech-
\n12 nical assistance programs shall be carried out in
\n13 consultation with the Intellectual Property Enforce-
\n14 ment Coordinator. The Director shall assist in co-
\n15 ordinating the training and technical assistance pro-
\n16 grams conducted by intellectual property attache\u00b4s.
\n17 (g) ACTIVITIES IN OTHER COUNTRIES.\u2014In the case
\n18 of countries that are not identified under section
\n19 182(a)(1) of the Trade Act of 1974, the activities of Fed-
\n20 eral departments and agencies with respect to intellectual
\n21 property rights in those countries, intellectual property
\n22 programs and outreach of the United States Government
\n23 in those countries, and training and technical assistance
\n24 programs of the United States Government relating to in-
\n25 tellectual property in those countries may be conducted
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\n1 to the extent they are consistent with compelling commer-
\n2 cial or foreign policy interests of the United States.
\n3 (h) REPORTS TO CONGRESS.\u2014The Intellectual Prop-
\n4 erty Enforcement Coordinator shall include in the annual
\n5 report submitted under section 314 of the Prioritizing Re-
\n6 sources and Organization for Intellectual Property Act of
\n7 2008 (15 U.S.C. 8114) on the activities of the advisory
\n8 committee established under section 301 of that Act (15
\n9 U.S.C. 8111) information on the appointment, designation
\n10 for assignment, and activities of all intellectual property
\n11 attache\u00b4s of any Federal department or agency who are
\n12 serving abroad.
\n13 (i) DEFINITIONS.\u2014In this section:
\n14 (1) DIRECTOR.\u2014The terms \u2018\u2018Director of the
\n15 Patent and Trademark Office\u2019\u2019 and \u2018\u2018Director\u2019\u2019 mean
\n16 the Under Secretary for Intellectual Property and
\n17 Director of the Untied States Patent and Trade-
\n18 mark Office.
\n19 (2) INTELLECTUAL PROPERTY ENFORCE-
\n20 MENT.\u2014The term \u2018\u2018intellectual property enforce-
\n21 ment\u2019\u2019 has the meaning given that term in section
\n22 302 of the Prioritizing Resources and Organization
\n23 for Intellectual Property Act of 2008 (15 U.S.C.
\n24 8112).
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\n1 (3) INTELLECTUAL PROPERTY ENFORCEMENT
\n2 COORDINATOR.\u2014The term \u2018\u2018Intellectual Property
\n3 Enforcement Coordinator\u2019\u2019 means the Intellectual
\n4 Property Enforcement Coordinator appointed under
\n5 section 301 of the Prioritizing Resources and Orga-
\n6 nization for Intellectual Property Act of 2008 (15
\n7 U.S.C. 8111).
\n8 (4) INTELLECTUAL PROPERTY RIGHTS.\u2014The
\n9 term \u2018\u2018intellectual property rights\u2019\u2019 means the rights
\n10 of holders of copyrights, patents, trademarks, other
\n11 forms of intellectual property, and trade secrets.
\n12 (5) USTR.\u2014The term \u2018\u2018USTR\u2019\u2019 means the
\n13 United States Trade Representative.
\n14 (6) UNITED STATES PERSON.\u2014The term
\n15 \u2018\u2018United States person\u2019\u2019 means\u2014
\n16 (A) any United States resident or national;
\n17 (B) any corporation, partnership, other
\n18 business entity, or other organization, that is
\n19 organized under the laws of the United States;
\n20 and
\n21 (C) any foreign subsidiary or affiliate (in-
\n22 cluding any permanent foreign establishment)
\n23 of any corporation, partnership, business entity,
\n24 or organization described in subparagraph (B),
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\n1 that is controlled in fact by such corporation,
\n2 partnership, business entity, or organization.
\n3 (j) AUTHORIZATION OF APPROPRIATIONS.\u2014The Sec-
\n4 retary of State and the Secretary of Commerce shall pro-
\n5 vide for the training and support of the intellectual prop-
\n6 erty attache\u00b4s appointed under subsection (b) using exist-
\n7 ing resources.
\n\u00c6
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\nsrobinson on DSK4SPTVN1PROD with BILLS<\/p>\n","protected":false},"excerpt":{"rendered":"

SOPA –\u00a0Stop Online Piracy Act   I 112TH CONGRESS 1ST SESSION H. R. 3261 To promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes. IN THE HOUSE OF REPRESENTATIVES OCTOBER 26, 2011 Mr. SMITH of Texas (for himself and Mr. CONYERS, Mr. GOODLATTE, Mr. BERMAN, Mr. GRIFFIN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":607,"menu_order":0,"comment_status":"open","ping_status":"open","template":"","meta":{"footnotes":""},"class_list":["post-615","page","type-page","status-publish","hentry"],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/P29Kla-9V","_links":{"self":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/615","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/comments?post=615"}],"version-history":[{"count":8,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/615\/revisions"}],"predecessor-version":[{"id":625,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/615\/revisions\/625"}],"up":[{"embeddable":true,"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/pages\/607"}],"wp:attachment":[{"href":"https:\/\/www.hephaestusproject.com\/blog\/wp-json\/wp\/v2\/media?parent=615"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}