Mr. LEAHY (for himself, Mr. HATCH, Ms. KLOBUCHAR, Mr. WHITEHOUSE, Mr. SCHUMER, Mr. KOHL, Mr. SPECTER, Mr. DURBIN, Mr. BAYH, Mr. VOINOVICH, Mrs. FEINSTEIN, Mr. COBURN, Mr. CARDIN, Mr. GRAHAM, Mr. GRASSLEY, Mr. ALEXANDER, Mrs. GILLIBRAND, Mr. MENENDEZ, and Mr. INHOFE) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
Reported by Mr. LEAHY, with an amendment
SECTION 1. SHORT TITLE.
[<-Struck out] This Act may be cited as the `Combating Online Infringement
and Counterfeits Act'.
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SEC. 2. INTERNET SITES DEDICATED TO INFRINGING
ACTIVITIES.
[<-Struck out] Chapter 113 of title 18, United States Code, is amended
by adding at the end the following:
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`Sec. 2324. Internet sites dedicated to infringing
activities
[<-Struck out] `(a) Definition- For purposes of this section, an
Internet site is `dedicated to infringing activities' if such site--
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`(1) is otherwise subject to civil forfeiture to
the United States Government under section 2323; or
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`(2) is--
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`(A) primarily designed, has no demonstrable,
commercially significant purpose or use other than, or is marketed by
its operator, or by a person acting in concert with the operator, to offer--
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`(i) goods or services in violation of title
17, United States Code, or enable or facilitate a violation of title
17, United States Code, including by offering or providing access to,
without the authorization of the copyright owner or otherwise by operation
of law, copies of, or public performance or display of, works protected
by title 17, in complete or substantially complete form, by any means,
including by means of download, transmission, or otherwise, including
the provision of a link or aggregated links to other sites or Internet
resources for obtaining such copies for accessing such performance or
displays; or
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`(ii) to sell or distribute goods, services,
or materials bearing a counterfeit mark, as that term is defined in
section 34(d) of the Act entitled `An Act to provide for the registration
and protection of trademarks used in commerce, to carry out the provisions
of certain international conventions, and for other purposes', approved
July 5, 1946 (commonly referred to as the `Trademark Act of 1946' or
the `Lanham Act'; 15 U.S.C. 1116(d)); and
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`(B) engaged in the activities described in subparagraph
(A), and when taken together, such activities are central to the activity
of the Internet site or sites accessed through a specific domain name.
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`(b) Injunctive Relief- On application of the Attorney
General following the commencement of an action pursuant to subsection (c),
the court may issue a temporary restraining order, a preliminary injunction,
or an injunction against the domain name used by an Internet site dedicated
to infringing activities to cease and desist from undertaking any infringing
activity in violation of this section, in accordance with rule 65 of the Federal
Rules of Civil Procedure. A party described in subsection (e) receiving an
order issued pursuant to this section shall take the appropriate actions described
in subsection (e).
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`(c) In Rem Action-
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`(1) IN GENERAL- The Attorney General may commence
an in rem action against any domain name used by an Internet site in the
judicial district in which the domain name registrar or domain name registry
is located, or, if pursuant to subsection (d)(2), in the District of Columbia,
if--
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`(A) the domain name is dedicated to infringing
activities; and
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`(B) the Attorney General simultaneously--
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`(i) sends a notice of the alleged violation
and intent to proceed under this subsection to the registrant of the
domain name at the postal and e-mail address provided by the registrant
to the registrar, if available; and
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`(ii) publishes notice of the action as the
court may direct promptly after filing the action.
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`(2) SERVICE OF PROCESS- For purposes of this section,
the actions described under paragraph (1)(B) shall constitute service of
process.
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`(d) Situs-
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`(1) DOMAINS FOR WHICH THE REGISTRY OR REGISTRAR
IS LOCATED DOMESTICALLY- In an in rem action commenced under subsection
(c), a domain name shall be deemed to have its situs in the judicial district
in which--
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`(A) the domain name registrar or registry is
located, provided that for a registry that is located in more than 1 judicial
district, venue shall be appropriate at the principal place where the
registry operations are performed; or
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`(B) documents sufficient to establish control
and authority regarding the disposition of the registration and use of
the domain name are deposited with the court.
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`(2) DOMAINS FOR WHICH THE REGISTRY OR REGISTRAR
IS NOT LOCATED DOMESTICALLY-
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`(A) ACTION BROUGHT IN DISTRICT OF COLUMBIA- If
the provisions of paragraph (1) do not apply to a particular domain name,
the in rem action may be brought in the District of Columbia to prevent
the importation into the United States of goods and services offered by
an Internet site dedicated to infringing activities if--
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`(i) the domain name is used to access such
Internet site in the United States; and
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`(ii) the Internet site--
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`(I) conducts business directed to residents
of the United States; and
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`(II) harms intellectual property rights holders
that are residents of the United States.
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`(B) DETERMINATION BY THE COURT- For purposes
of determining whether an Internet site conducts business directed to
residents of the United States under subparagraph (A)(ii)(I), a court
shall consider, among other indicia whether--
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`(i) the Internet site is actually providing
goods or services to subscribers located in the United States;
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`(ii) the Internet site states that it is not
intended, and has measures to prevent, infringing material from being
accessed in or delivered to the United States;
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`(iii) the Internet site offers services accessible
in the United States; and
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`(iv) any prices for goods and services are
indicated in the currency of the United States.
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`(e) Service of Court Order-
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`(1) DOMESTIC DOMAINS- In an in rem action to which
subsection (d)(1) applies, the Attorney General shall serve any court order
issued pursuant to this section on the domain name registrar or, if the
domain name registrar is not located within the United States, upon the
registry. Upon receipt of such order, the domain name registrar or domain
name registry shall suspend operation of, and lock, the domain name.
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`(2) NONDOMESTIC DOMAINS-
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`(A) ENTITY TO BE SERVED- In an in rem action
to which subsection (d)(2) applies, the Attorney General may serve any
court order issued pursuant to this section on any entity listed in clauses
(i) through (iii) of subparagraph (B).
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`(B) REQUIRED ACTIONS- Upon receipt of a court
order issued pursuant to this section--
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`(i) a service provider, as that term is defined
in section 512(k)(1) of title 17, United States Code, or other operator
of a domain name system server shall take reasonable steps that will
prevent a domain name from resolving to that domain name's Internet
protocol address;
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`(ii) a financial transaction provider, as that
term is defined in section 5362(4) of title 31, United States Code,
shall take reasonable measures, as expeditiously as practical, to prevent--
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`(I) its service from processing transactions
for customers located within the United States based on purchases
associated with the domain name; and
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`(II) its trademarks from being authorized
for use on Internet sites associated with such domain name; and
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`(iii) a service that serves contextual or display
advertisements to Internet sites shall take reasonable measures, as
expeditiously as practical, to prevent its network from serving advertisements
to an Internet site accessed through such domain name.
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`(3) IMMUNITY- No cause of action shall lie in any
Federal or State court or administrative agency against any entity receiving
a court order issued under this section, or against any director, officer,
employee, or agent thereof, for any action reasonably calculated to comply
with this section or arising from such order.
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`(f) Publication of Orders- The Attorney General shall
inform the Intellectual Property Enforcement Coordinator of all court orders
issued under this section directed to specific domain names associated with
Internet sites dedicated to infringing activities. The Intellectual Property
Enforcement Coordinator shall post such domain names on a publicly available
Internet site, together with other relevant information, in order to inform
the public.
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`(g) Enforcement of Orders- In order to compel compliance
with this section, the Attorney General may bring an action against any party
receiving a court order issued pursuant to this section that willfully or
persistently fails to comply with such order. A showing by the defending party
in such action that it does not have the technical means to comply with this
section shall serve as a complete defense to such action.
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`(h) Modification or Vacation of Orders; Dismissal-
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`(1) MODIFICATION OR VACATION OF ORDER- At any time
after the issuance of a court order constituting injunctive relief under
this section--
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`(A) the Attorney General may apply for a modification
of the order--
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`(i) to expand the order to apply to a domain
name that is reconstituted using a different domain name subsequent
to the original order, and
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`(ii) to include additional domain names that
are used in substantially the same manner as the Internet site against
which the action was brought,
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by providing the court with clear indicia of joint
control, ownership, or operation of the Internet site associated with
the domain name subject to the order and the Internet site associated
with the requested modification; and
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`(B) a defendant or owner or operator of a domain
name subject to the order, or any party required to take action based
on the order, may petition the court to modify, suspend, or vacate the
order, based on evidence that--
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`(i) the Internet site associated with the domain
name subject to the order is no longer dedicated to infringing activities;
or
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`(ii) the interests of justice require that
the order be modified, suspended, or vacated.
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`(2) DISMISSAL OF ORDER- A court order constituting
injunctive relief under this section issued against a domain name used by
an Internet site dedicated to infringing activities shall automatically
cease to have any force or effect upon expiration of the registration of
the domain name. It shall be the responsibility of the domain name registrar
to notify the court of such expiration.
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`(i) Savings Clause- Nothing in this section shall
be construed to limit civil or criminal remedies available to any person (including
the United States) for infringing activities on the Internet pursuant to any
other Federal or State law.
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`(j) Internet Sites Alleged by the Department of Justice
To Be Dedicated to Infringing Activities-
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`(1) IN GENERAL- The Attorney General shall maintain
a public listing of domain names that, upon information and reasonable belief,
the Department of Justice determines are dedicated to infringing activities
but for which the Attorney General has not filed an action under this section.
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`(2) PROTECTION FOR UNDERTAKING CORRECTIVE MEASURES-
If an entity described under subsection (e) takes any action specified in
such subsection with respect to a domain name that appears on the list established
under paragraph (1), then such entity shall receive the immunity protections
described under subsection (e)(3).
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`(3) REMOVAL FROM LIST- The Attorney General shall
establish and publish procedures for the owner or operator of a domain name
appearing on the list established under paragraph (1) to petition the Attorney
General to remove such domain name from the list based on any of the factors
described under subsection (h)(1)(B).
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`(4) JUDICIAL REVIEW-
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`(A) IN GENERAL- After the Attorney General makes
a final determination on a petition to remove a domain name appearing
on the list established under paragraph (1) filed by an individual pursuant
to the procedures referred to in paragraph (3), the individual may obtain
judicial review of such determination in a civil action commenced not
later than 90 days after notice of such decision, or such further time
as the Attorney General may allow.
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`(B) JURISDICTION- A civil action for such judicial
review shall be brought in the district court of the United States for
the judicial district in which the plaintiff resides, or has a principal
place of business, or, if the plaintiff does not reside or have a principal
place of business within any such judicial district, in the District Court
of the United States for the District of Columbia.
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`(C) ANSWER- As part of the Attorney General's
answer to a complaint for such judicial review, the Attorney General shall
file a certified copy of the administrative record compiled pursuant to
the petition to remove, including the evidence upon which the findings
and decision complained of are based.
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`(D) JUDGMENT- The court shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming
or reversing the result of the Attorney General's determination on the
petition to remove, with or without remanding the cause for a rehearing.'.
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SEC. 3. REQUIRED ACTIONS BY THE ATTORNEY GENERAL.
[<-Struck out] The Attorney General shall--
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(1) publish procedures to receive information from
the public about Internet sites that are dedicated to infringing activities,
as that term is defined under section 2324 of title 18, United States Code;
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(2) provide guidance to intellectual property rights
holders about what information such rights holders should provide the Department
of Justice to initiate an investigation pursuant to such section 2324;
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out]
(3) provide guidance to intellectual property rights
holders about how to supplement an ongoing investigation initiated pursuant
to such section 2324;
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(4) establish standards for prioritization of actions
brought under such section 2324; and
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(5) provide appropriate resources and procedures
for case management and development to affect timely disposition of actions
brought under such section 2324.
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Calendar No. 648
To combat online infringement, and for other purposes.