I 

112TH CONGRESS 

2D SESSION H. R. 3782 

To amend the Tariff Act of 1930 to address unfair trade practices relating 

to infringement of copyrights and trademarks by certain Internet sites, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 18, 2012 

Mr. ISSA (for himself, Mr. CAMPBELL, Mr. CHAFFETZ, Mr. DOGGETT, Mr. 

DOYLE, Ms. ESHOO, Mr. FARENTHOLD, Mr. HONDA, Ms. ZOE LOFGREN

of California, Ms. MATSUI, Mr. POLIS, Ms. SPEIER, Mr. THOMPSON of 

California, Mr. JOHNSON of Illinois, Mr. STARK, Mr. LANGEVIN, Mr. 

MCHENRY, Mr. GEORGE MILLER of California, Mr. ROSS of Florida, Mr. 

SENSENBRENNER, Mr. HASTINGS of Florida, Mr. BACHUS, Mr. ELLISON, 

Mr. GRIJALVA, Mr. DEFAZIO, and Ms. WOOLSEY) introduced the following bill; which was referred to the Committee on Ways and Means, 

and in addition to the Committee on the Judiciary, for a period to be 

subsequently determined by the Speaker, in each case for consideration 

of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Tariff Act of 1930 to address unfair trade 

practices relating to infringement of copyrights and 

trademarks by certain Internet sites, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Online Protection and 

3 Enforcement of Digital Trade Act’’ or the ‘‘OPEN Act’’. 

4 SEC. 2. UNFAIR TRADE PRACTICES RELATING TO IN5 FRINGEMENT OF COPYRIGHTS AND TRADE6 MARKS BY CERTAIN INTERNET SITES. 

7 (a) IN GENERAL.—Title III of the Tariff Act of 1930 

8 (19 U.S.C. 1304 et seq.) is amended by inserting after 

9 section 337 the following: 

10 ‘‘SEC. 337A. UNFAIR TRADE PRACTICES RELATING TO IN11 FRINGEMENT OF COPYRIGHTS AND TRADE12 MARKS BY CERTAIN INTERNET SITES. 

13 ‘‘(a) DEFINITIONS.—In this section: 

14 ‘‘(1) COMPLAINANT.—The term ‘complainant’ 

15 means a person who files a complaint with the Com16 mission under subsection (d). 

17 ‘‘(2) DOMAIN NAME.—The term ‘domain name’ 

18 has the meaning given that term in section 45 of the 

19 Lanham Act (15 U.S.C. 1127). 

20 ‘‘(3) FINANCIAL TRANSACTION PROVIDER.— 

21 ‘‘(A) IN GENERAL.—Except as provided in 

22 subparagraph (B), the term ‘financial trans23 action provider’ has the meaning given that 

24 term in section 5362(4) of title 31, United 

25 States Code. 


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1 ‘‘(B) EXCEPTION.—The term ‘financial 

2 transaction provider’ does not include an Inter3 net service platform or an affiliate of an Inter4 net service platform. 

5 ‘‘(4) INFRINGING ACTIVITY.—The term ‘infring6 ing activity’ means an activity that— 

7 ‘‘(A) infringes a copyright in a manner 

8 punishable under section 506 of title 17, United 

9 States Code; 

10 ‘‘(B) violates section 1201 of title 17, 

11 United States Code; or 

12 ‘‘(C) uses counterfeit marks in a manner 

13 punishable under section 34(d) of the Lanham 

14 Act (15 U.S.C. 1116(d)). 

15 ‘‘(5) INTERNET ADVERTISING SERVICE.—The 

16 term ‘Internet advertising service’ means a service 

17 that serves an online advertisement in viewable form 

18 for any period of time on an Internet site that is not 

19 owned or controlled by the Internet advertising serv20 ice. 

21 ‘‘(6) INTERNET SERVICE PLATFORM.—The 

22 term ‘Internet service platform’ means an interactive 

23 digital service the provider of which— 


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1 ‘‘(A) does not act merely as a payment 

2 intermediary between a user and a supplier of 

3 goods or services; and 

4 ‘‘(B) provides additional services to facili5 tate interaction between users unrelated to pur6 chases from suppliers of goods and services. 

7 ‘‘(7) INTERNET SITE.—The term ‘Internet site’ 

8 means the collection of digital assets, including links, 

9 indexes, or pointers to digital assets, accessible 

10 through the Internet that are addressed relative to 

11 a common domain name. 

12 ‘‘(8) INTERNET SITE DEDICATED TO INFRING13 ING ACTIVITY.— 

14 ‘‘(A) IN GENERAL.—The term ‘Internet 

15 site dedicated to infringing activity’ means an 

16 Internet site that— 

17 ‘‘(i) is accessed through a non18 domestic domain name; 

19 ‘‘(ii) conducts business directed to 

20 residents of the United States; and 

21 ‘‘(iii) has only limited purpose or use 

22 other than engaging in infringing activity 

23 and whose owner or operator primarily 

24 uses the site— 

25 ‘‘(I) to willfully— 


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1 ‘‘(aa) infringe a copyright in 

2 a manner punishable under sec3 tion 506 of title 17, United 

4 States Code; or 

5 ‘‘(bb) violate section 1201 of 

6 title 17, United States Code; or 

7 ‘‘(II) to use counterfeit marks in 

8 a manner punishable under section 

9 34(d) of the Lanham Act (15 U.S.C. 

10 1116(d)). 

11 ‘‘(B) BUSINESS DIRECTED TO RESIDENTS

12 OF THE UNITED STATES.—For purposes of de13 termining whether an Internet site conducts 

14 business directed to residents of the United 

15 States under subparagraph (A)(ii), the Commis16 sion may consider, among other indicators, 

17 whether— 

18 ‘‘(i) the Internet site is providing 

19 goods or services to users located in the 

20 United States; 

21 ‘‘(ii) there is evidence that the Inter22 net site is not intended to provide goods 

23 and services to such users or access to or 

24 delivery of goods and services to such 

25 users; 


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1 ‘‘(iii) the Internet site has reasonable 

2 measures in place to prevent goods and 

3 services provided by the Internet site from 

4 being accessed from or delivered to the 

5 United States; 

6 ‘‘(iv) the Internet site offers services 

7 obtained in the United States; and 

8 ‘‘(v) any prices for goods and services 

9 provided by the Internet site are indicated 

10 in the currency of the United States. 

11 ‘‘(C) EXCLUSIONS.—An Internet site is 

12 not an Internet site dedicated to infringing ac13 tivity— 

14 ‘‘(i) if the Internet site has a practice 

15 of expeditiously removing, or disabling ac16 cess to, material that is claimed to be in17 fringing or to be the subject of infringing 

18 activity after notification by the owner of 

19 the copyright or trademark alleged to be 

20 infringed or its authorized representative; 

21 ‘‘(ii) because the Internet site engages 

22 in an activity that would not make the op23 erator liable for monetary relief for infring24 ing a copyright under section 512 of title 

25 17, United States Code; or 


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1 ‘‘(iii) because of the distribution by 

2 the Internet site of copies that were made 

3 without infringing a copyright or trade4 mark. 

5 ‘‘(9) LANHAM ACT.—The term ‘Lanham Act’ 

6 means the Act entitled ‘An Act to provide for the 

7 registration and protection of trademarks used in 

8 commerce, to carry out the provisions of certain 

9 international conventions, and for other purposes’, 

10 approved July 5, 1946 (15 U.S.C. 1051 et seq.) 

11 (commonly referred to as the ‘Trademark Act of 

12 1946’ or the ‘Lanham Act’). 

13 ‘‘(10) NONDOMESTIC DOMAIN NAME.—The 

14 term ‘nondomestic domain name’ means a domain 

15 name for which the domain name registry that 

16 issued the domain name and operates the relevant 

17 top level domain, the domain name registrar for the 

18 domain name, and the owner and the operator of the 

19 Internet site associated with the domain name, are 

20 not located in the United States. 

21 ‘‘(11) OPERATOR.—The term ‘operator’, when 

22 used in connection with an Internet site, includes 

23 any person with authority to operate the Internet 

24 site. 


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1 ‘‘(12) OWNER.—The term ‘owner’, when used 

2 in connection with an Internet site, includes any 

3 owner of a majority interest in the Internet site. 

4 ‘‘(13) TRADEMARK.—The term ‘trademark’ has 

5 the meaning given that term in section 45 of the 

6 Lanham Act (15 U.S.C. 1127). 

7 ‘‘(b) APPLICABILITY OF SECTION.—It shall be a vio8 lation of this section to operate or maintain an Internet 

9 site dedicated to infringing activity. If the Commission de10 termines that there has been a violation of this subsection, 

11 that violation shall be dealt with as provided in this sec12 tion. 

13 ‘‘(c) INVESTIGATION OF VIOLATIONS BY COMMIS14 SION.— 

15 ‘‘(1) IN GENERAL.—The Commission— 

16 ‘‘(A) may investigate an alleged violation 

17 of subsection (b) on its own initiative; and 

18 ‘‘(B) shall investigate any alleged violation 

19 of subsection (b) upon receiving a complaint 

20 filed under subsection (d). 

21 ‘‘(2) PROCEDURES.—An investigation initiated 

22 under paragraph (1) shall be subject to the require23 ments of section 337(b)(1) with respect to notice of 

24 investigations and timing of determinations. 


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1 ‘‘(3) CONSULTATIONS.—In conducting an inves2 tigation initiated under paragraph (1), the Commis3 sion may consult with, and seek advice and informa4 tion from, the Attorney General, the Secretary of 

5 State, the Secretary of Homeland Security, the Sec6 retary of Commerce, the Intellectual Property En7 forcement Coordinator, the United States Trade 

8 Representative, and such other officials as the Com9 mission considers appropriate. 

10 ‘‘(4) TERMINATION OF INVESTIGATIONS; RE11 FERRAL.—If the Commission has reason to believe, 

12 based on information before the Commission, that 

13 the domain name associated with an Internet site 

14 that is the subject of a complaint filed under sub15 section (d) is not a nondomestic domain name, the 

16 Commission shall terminate, or not initiate, an in17 vestigation with respect to the complaint, and shall 

18 refer the matter, including any evidentiary record 

19 that the Commission has developed, to the Attorney 

20 General for such further proceedings as the Attorney 

21 General determines appropriate. 

22 ‘‘(5) LIMITATION ON INVESTIGATIONS OF DO23 MAIN NAMES; CONSENT TO JURISDICTION.—Not24 withstanding any other provision of this section, the 

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1 vestigation under paragraph (1) with respect to a 

2 domain name— 

3 ‘‘(A) if the operator of the Internet site as4 sociated with the domain name provides in a 

5 legal notice on the site accurate information 

6 consisting of— 

7 ‘‘(i) the name of an individual author8 ized to receive process on behalf of the site; 

9 ‘‘(ii) an address at which process may 

10 be served; 

11 ‘‘(iii) a telephone number at which the 

12 individual described in clause (i) may be 

13 contacted; and 

14 ‘‘(iv) a statement that the operator of 

15 the site— 

16 ‘‘(I) consents to the jurisdiction 

17 and venue of the United States dis18 trict courts with respect to a violation 

19 punishable under section 506 of title 

20 17, United States Code, a criminal of21 fense under section 1204 of title 17, 

22 United States Code, for a violation of 

23 section 1201 of such title, or a viola24 tion of section 2320 of title 18 of such 

25 Code; and 


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1 ‘‘(II) will accept service of proc2 ess from the Attorney General with 

3 respect to those violations and the of4 fense set forth in subclause (I); and 

5 ‘‘(B) provided that, in the event of the fil6 ing of any civil action in the appropriate United 

7 States district court— 

8 ‘‘(i) for infringement of copyright 

9 under section 501 of title 17, United 

10 States Code, 

11 ‘‘(ii) under section 1203 of title 17, 

12 United States Code, for a violation of sec13 tion 1201 of such title, or 

14 ‘‘(iii) under section 32(1) of the 

15 Lanham Act, 

16 accepts service and waives, in a timely manner, 

17 any objections to jurisdiction as set forth in the 

18 statement described in subparagraph (A)(iv). 

19 ‘‘(d) COMPLAINTS.— 

20 ‘‘(1) IN GENERAL.—A complaint alleging, under 

21 oath, that an Internet site dedicated to infringing 

22 activity is being operated or maintained in violation 

23 of subsection (b) may be filed with the Commission 

24 by the owner of a copyright or trademark that is the 


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1 subject of the infringing activity alleged in the com2 plaint. 

3 ‘‘(2) NOTICE TO OWNER OR REGISTRANT OF

4 DOMAIN NAME OF INTERNET SITE ALLEGED TO BE

5 VIOLATING THIS SECTION.— 

6 ‘‘(A) IN GENERAL.—Upon filing a com7 plaint under paragraph (1), the complainant 

8 shall send a notice of the violation alleged in 

9 the complaint to the owner or registrant of the 

10 domain name of the Internet site alleged to be 

11 operated or maintained in violation of sub12 section (b)— 

13 ‘‘(i) at the postal and e-mail addresses 

14 appearing in the applicable publicly acces15 sible database of registrations, if any, to 

16 the extent such addresses are reasonably 

17 available; 

18 ‘‘(ii) via the postal and e-mail ad19 dresses of the registrar, registry, or other 

20 domain name registration authority that 

21 registered or assigned the domain name, to 

22 the extent such addresses are reasonably 

23 available; and 

24 ‘‘(iii) in any other such form as the 

25 Commission finds necessary. 


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1 ‘‘(B) RULE OF CONSTRUCTION.—For pur2 poses of this subsection, the actions described 

3 in this paragraph shall constitute service of 

4 process. 

5 ‘‘(3) IDENTIFICATION OF, AND NOTICE TO, EN6 TITIES THAT MAY BE REQUIRED TO TAKE ACTION

7 PURSUANT TO THIS SECTION.— 

8 ‘‘(A) IDENTIFICATION.—A complaint filed 

9 under paragraph (1) shall identify any financial 

10 transaction provider or Internet advertising 

11 service that may be required to take measures 

12 described in subsection (g)(2) if the Commis13 sion issues an order under subsection (f) with 

14 respect to the complaint and the order is served 

15 on the provider or service pursuant to sub16 section (g)(1). 

17 ‘‘(B) NOTICE.—Upon filing a complaint 

18 under paragraph (1), the complainant shall pro19 vide notice to any financial transaction provider 

20 or Internet advertising service identified in the 

21 complaint pursuant to subparagraph (A) or any 

22 amendments to the complaint. 

23 ‘‘(C) INTERVENTION.— 

24 ‘‘(i) IN GENERAL.—A financial trans25 action provider or Internet advertising 


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1 service identified in a complaint pursuant 

2 to subparagraph (A) may intervene upon 

3 timely request filed with the Commission 

4 in— 

5 ‘‘(I) an investigation initiated 

6 under subsection (c) pursuant to the 

7 complaint; or 

8 ‘‘(II) pursuant to subsection 

9 (f)(3), an action to modify, suspend, 

10 or vacate an order issued pursuant to 

11 the complaint. 

12 ‘‘(ii) RULE OF CONSTRUCTION.—Fail13 ure to intervene under clause (i) in an in14 vestigation under subsection (c) does not 

15 preclude a financial transaction provider or 

16 Internet advertising service notified of the 

17 investigation from subsequently seeking an 

18 order to modify, suspend, or terminate an 

19 order issued by the Commission under sub20 section (f). 

21 ‘‘(e) DETERMINATIONS.— 

22 ‘‘(1) IN GENERAL.—The Commission shall de23 termine, with respect to each investigation initiated 

24 under subsection (c) alleging that an Internet site 

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1 tained in violation of subsection (b), whether or not 

2 the Internet site is operated or maintained in viola3 tion of subsection (b). 

4 ‘‘(2) EXCEPTIONS AND PROCEDURES RELATING

5 TO DETERMINATIONS.—Except as specifically pro6 vided in this subsection, the provisions of the first, 

7 second, third, and eighth sentences of subsection (c) 

8 of section 337 providing for exceptions and proce9 dures relating to determinations of the Commission 

10 under that section shall apply with respect to a de11 termination under paragraph (1) to the same extent 

12 and in the same manner as those provisions apply 

13 to determinations under section 337. 

14 ‘‘(3) EFFECTIVE DATE.—A determination made 

15 under paragraph (1) shall take effect on the date on 

16 which the Commission publishes the determination 

17 in the Federal Register. 

18 ‘‘(4) REFERRALS TO PRESIDENT; TERMINATION

19 FOR DISAPPROVAL.— 

20 ‘‘(A) IN GENERAL.—If the Commission de21 termines under paragraph (1) that an Internet 

22 site dedicated to infringing activity is operated 

23 or maintained in violation of subsection (b), the 

24 Commission shall promptly submit to the Presi25 dent or a copy of the determination, the record 


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1 upon which the determination is based, and any 

2 order issued under subsection (f) pursuant to 

3 the determination. 

4 ‘‘(B) TERMINATION OF DETERMINATION

5 BASED ON DISAPPROVAL OF PRESIDENT.—If 

6 the President disapproves of a determination of 

7 the Commission for policy reasons and notifies 

8 the Commission of that disapproval, the deter9 mination and any order issued pursuant to the 

10 determination shall cease to have force or effect 

11 on the date on which the President notifies the 

12 Commission of that disapproval. 

13 ‘‘(5) ELECTRONIC SUBMISSION OF INFORMA14 TION AND PROCEEDINGS.—The Commission may, in 

15 making any determination under this section— 

16 ‘‘(A) allow the submission of information 

17 electronically; and 

18 ‘‘(B) hold hearings electronically or obtain 

19 testimony or other information electronically or 

20 by such means as the Commission determines 

21 allows participation in proceedings under this 

22 section at as low a cost as possible to partici23 pants in the proceedings. 

24 ‘‘(6) ADDITIONAL PROCEDURES RELATING TO

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1 standing the provisions of this subsection or any 

2 provision of section 337(c), a determination of the 

3 Commission under this section with respect to the 

4 appropriate remedy provided by the Commission, a 

5 determination under subsection (f)(2) with respect 

6 to the forfeiture of a bond, and a determination 

7 under subsection (i) with respect to the imposition 

8 of sanctions for abuse of discovery or abuse of proc9 ess, shall be reviewable in accordance with section 

10 706 of title 5, United States Code. 

11 ‘‘(f) CEASE AND DESIST ORDERS.— 

12 ‘‘(1) IN GENERAL.—If the Commission deter13 mines under subsection (e) that an Internet site 

14 dedicated to infringing activity is operated or main15 tained in violation of subsection (b), the Commission 

16 may— 

17 ‘‘(A) issue an order to cease and desist the 

18 infringing activity of the Internet site against 

19 the Internet site and to the owner and the oper20 ator of the Internet site; and 

21 ‘‘(B) cause the order to be served on the 

22 owner and the operator. 

23 ‘‘(2) TEMPORARY AND PRELIMINARY CEASE

24 AND DESIST ORDERS.— 


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1 ‘‘(A) PETITION BY COMPLAINANT.—A 

2 complainant may file with the chairperson of 

3 the Commission (or the designee of the chair4 person) a petition, in accordance with this para5 graph, for the issuance of a temporary or pre6 liminary order against the Internet site and to 

7 the owner and the operator of the Internet site 

8 to cease and desist the infringing activity al9 leged in the complaint filed under subsection 

10 (d). 

11 ‘‘(B) ISSUANCE OF ORDER.—If, upon re12 ceiving a petition under subparagraph (A) and 

13 after providing an opportunity to be heard 

14 under subparagraph (C), the chairperson of the 

15 Commission (or the designee of the chair16 person) determines that there is reason to be17 lieve that an Internet site dedicated to infring18 ing activity is operated or maintained in viola19 tion of subsection (b), the chairperson of the 

20 Commission (or the designee of the chair21 person) may issue a temporary or preliminary 

22 cease and desist order against, and cause the 

23 order to be served on, the Internet site and the 

24 owner and the operator of the Internet site. 

25 ‘‘(C) OPPORTUNITY TO BE HEARD.— 


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1 ‘‘(i) IN GENERAL.—Before issuing a 

2 temporary or preliminary cease and desist 

3 order under this paragraph, the chair4 person of the Commission (or the designee 

5 of the chairperson) shall provide to the 

6 owner and the operator of the Internet site 

7 alleged to be operated or maintained in 

8 violation of subsection (b) an opportunity 

9 to be heard and to submit relevant infor10 mation to the chairperson of the Commis11 sion (or the designee of the chairperson). 

12 ‘‘(ii) ELECTRONIC SUBMISSION OF IN13 FORMATION AND PROCEEDINGS.—The 

14 chairperson of the Commission (or the des15 ignee of the chairperson) may provide an 

16 opportunity to be heard and to submit in17 formation under clause (i) electronically or 

18 in such other manner as the chairperson of 

19 the Commission (or the designee of the 

20 chairperson) determines appropriate. 

21 ‘‘(D) STANDARD FOR RELIEF.—If the 

22 chairperson of the Commission (or the designee 

23 of the chairperson) issues a temporary or pre24 liminary cease and desist order under this para25 graph, the order shall be issued in a manner 


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1 consistent with the provisions of rule 65 of the 

2 Federal Rules of Civil Procedure, or any suc3 cessor thereto, relating to preliminary injunc4 tions and temporary restraining orders. 

5 ‘‘(E) PROCEDURES FOR TEMPORARY

6 CEASE AND DESIST ORDER.— 

7 ‘‘(i) EXPEDITED CONSIDERATION.— 

8 Upon a showing of extraordinary cir9 cumstances by the complainant filing a pe10 tition for a temporary cease and desist 

11 order under subparagraph (A), the chair12 person of the Commission (or the designee 

13 of the chairperson) may make a determina14 tion with respect to the petition on an ex15 pedited basis. 

16 ‘‘(ii) EXPIRATION OF ORDER.— 

17 ‘‘(I) IN GENERAL.—Except as 

18 provided in subclause (II), a tem19 porary cease and desist order issued 

20 under this paragraph shall expire at a 

21 time determined by the chairperson of 

22 the Commission (or the designee of 

23 the chairperson) that is not later than 

24 14 days after the issuance of the 

25 order. 


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1 ‘‘(II) EXTENSION OF ORDER.— 

2 The chairperson of the Commission 

3 (or the designee of the chairperson) 

4 may extend a temporary cease and de5 sist order issued under this paragraph 

6 for additional periods of not more 

7 than 14 days for good cause or with 

8 the consent of the entity against 

9 which the order is issued. 

10 ‘‘(F) PROCEDURES FOR PRELIMINARY

11 CEASE AND DESIST ORDER.— 

12 ‘‘(i) IN GENERAL.—Except as pro13 vided in clause (ii), the chairperson of the 

14 Commission (or the designee of the chair15 person) shall make a determination with 

16 respect to a petition for a preliminary 

17 cease and desist order not later than 30 

18 days after the Commission publishes notice 

19 of the initiation of an investigation under 

20 subsection (c) in the Federal Register. 

21 ‘‘(ii) EXTENSIONS OF TIME FOR DE22 TERMINATION.—The chairperson of the 

23 Commission (or the designee of the chair24 person) may extend the date by which the 

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1 ignee of the chairperson) is required to 

2 make a determination under clause (i) with 

3 respect to a petition for a preliminary 

4 cease and desist order for an additional 30 

5 days if the chairperson of the Commission 

6 (or the designee of the chairperson)— 

7 ‘‘(I) determines that the petition 

8 presents a more complicated case; and 

9 ‘‘(II) publishes in the Federal 

10 Register an explanation of why the 

11 chairperson of the Commission (or the 

12 designee of the chairperson) deter13 mined that the case is more com14 plicated under subclause (I). 

15 ‘‘(G) BONDING REQUIREMENT.— 

16 ‘‘(i) IN GENERAL.—The chairperson 

17 of the Commission (or the designee of the 

18 chairperson) may require a complainant 

19 that files a petition for the issuance of a 

20 temporary or preliminary cease and desist 

21 order under subparagraph (A) to post a 

22 bond before issuing the order. 

23 ‘‘(ii) FORFEITURE OF BOND.—If, 

24 after issuing a temporary or preliminary 

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1 graph, the Commission determines that the 

2 Internet site against which the order was 

3 issued was not an Internet site dedicated 

4 to infringing activity operated in violation 

5 of subsection (b), the Commission may, 

6 pursuant to such terms and conditions as 

7 the Commission prescribes, require the for8 feiture of the bond posted by the complain9 ant under clause (i) and the provision of 

10 the bond to the owner or the operator of 

11 the Internet site. 

12 ‘‘(H) APPLICABILITY OF ADMINISTRATIVE

13 PROCEDURE ACT.—The provisions of section 

14 554 of title 5, United States Code, shall not 

15 apply with respect to the issuance of prelimi16 nary or temporary cease and desist orders 

17 under this paragraph. 

18 ‘‘(3) MODIFICATION OR REVOCATION OF OR19 DERS.— 

20 ‘‘(A) IN GENERAL.—At any time after the 

21 issuance of an order under this subsection, a 

22 motion to modify, suspend, or vacate the order 

23 may be filed by— 

24 ‘‘(i) any entity, or owner or operator 

25 of property, bound by the order; 


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1 ‘‘(ii) the owner or operator of the 

2 Internet site subject to the order; 

3 ‘‘(iii) any domain name registrar or 

4 registry that has registered or assigned the 

5 domain name of the Internet site subject 

6 to the order; or 

7 ‘‘(iv) a financial transaction provider 

8 or Internet advertising service on which a 

9 copy of an order has been served pursuant 

10 to paragraph (1) of subsection (g) requir11 ing the provider or service to take action 

12 described in paragraph (2) of that sub13 section. 

14 ‘‘(B) RELIEF.—The Commission shall 

15 modify, suspend, or vacate an order, as appro16 priate, if the Commission determines that— 

17 ‘‘(i) the Internet site subject to the 

18 order is no longer, or never was, an Inter19 net site dedicated to infringing activity; or 

20 ‘‘(ii) the interests of justice require 

21 that the order be modified, suspended, or 

22 vacated. 

23 ‘‘(C) CONSIDERATION.—In making a de24 termination under subparagraph (B), the Com25 mission may consider whether the domain name 


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1 of the Internet site subject to the order has ex2 pired or has been re-registered by a different 

3 entity. 

4 ‘‘(4) AMENDMENT OF ORDERS.—A complainant 

5 may petition the Commission to amend an order 

6 issued under this subsection if an Internet site de7 termined under subsection (e) to be an Internet site 

8 dedicated to infringing activity is accessible or has 

9 been reconstituted at a different domain name. 

10 ‘‘(5) OPPORTUNITY TO BE HEARD FOR CERTAIN

11 ENTITIES.—Before the Commission issues an order 

12 under this subsection or modifies, suspends, or va13 cates, or amends such an order under paragraph (3) 

14 or (4), a financial transaction provider or Internet 

15 advertising service that intervened pursuant to sub16 section (d)(3) in an investigation or action relating 

17 to the order shall have an opportunity to be heard 

18 before the Commission with respect to whether the 

19 Commission should issue the order and the scope of 

20 relief available under the order or whether the Com21 mission should modify, suspend, vacate, or amend 

22 the order, as the case may be. 

23 ‘‘(6) EXPIRATION OF ORDERS WITH RESPECT

24 TO INTERNET SITE.—An order issued under this 

25 subsection against an Internet site shall cease to 


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1 have any force or effect upon expiration of the reg2 istration of the domain name of the Internet site. 

3 ‘‘(g) REQUIRED ACTIONS BASED ON COMMISSION

4 ORDERS.— 

5 ‘‘(1) IN GENERAL.—If the Commission reason6 ably believes that a financial transaction provider or 

7 an Internet advertising service identified in a com8 plaint pursuant to subsection (d)(3), or any amend9 ment to the complaint, supplies services to the Inter10 net site that is subject to the order issued under 

11 subsection (f) with respect to the complaint— 

12 ‘‘(A) the Commission may give permission 

13 to the complainant to serve a copy of the order 

14 on the financial transaction provider or Internet 

15 advertising service, as the case may be; 

16 ‘‘(B) if the Commission gives permission to 

17 the complainant under subparagraph (A), the 

18 complainant shall file proof of service with the 

19 Commission; and 

20 ‘‘(C) upon receiving a copy of the order 

21 pursuant to subparagraph (A), the financial 

22 transaction provider or Internet advertising 

23 service, as the case may be, shall implement the 

24 measures described in paragraph (2). 


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1 ‘‘(2) MEASURES DESCRIBED.—The measures 

2 described in this paragraph are the following: 

3 ‘‘(A) MEASURES TO BE IMPLEMENTED BY

4 FINANCIAL TRANSACTION PROVIDERS.— 

5 ‘‘(i) IN GENERAL.—Subject to clause 

6 (ii), a financial transaction provider shall 

7 expeditiously take reasonable measures de8 signed to prevent or prohibit the comple9 tion of payment transactions by the pro10 vider that involve customers located in the 

11 United States and the Internet site subject 

12 to the order issued under subsection (f). 

13 ‘‘(ii) LIMITATIONS ON MEASURES.—A 

14 financial transaction provider may not be 

15 required pursuant to clause (i)— 

16 ‘‘(I) to implement measures that 

17 are not commercially reasonable; 

18 ‘‘(II) to modify services or facili19 ties of the provider to comply with the 

20 order issued under subsection (f); or 

21 ‘‘(III) to prevent or prohibit the 

22 completion of a payment transaction 

23 if the provider could not reasonably 

24 determine in advance whether the enVerDate Mar 15 2010 00:44 Jan 19, 2012 Jkt 099200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\H3782.IH H3782

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1 tity was using the Internet site sub2 ject to the order. 

3 ‘‘(B) INTERNET ADVERTISING SERVICES.— 

4 ‘‘(i) IN GENERAL.—Subject to clause 

5 (ii), an Internet advertising service shall 

6 expeditiously take technically feasible 

7 measures intended to cease serving adver8 tisements to the Internet site subject to 

9 the order issued under subsection (f) in 

10 situations in which the service would di11 rectly share revenues generated by the ad12 vertisements with the operator of the 

13 Internet site. 

14 ‘‘(ii) LIMITATIONS ON MEASURES.— 

15 An Internet advertising service may not be 

16 required pursuant to clause (i)— 

17 ‘‘(I) to implement measures that 

18 are not commercially reasonable; 

19 ‘‘(II) to modify the services or fa20 cilities of the service to comply with 

21 the order issued under subsection (f); 

22 or 

23 ‘‘(III) to cease serving an adver24 tisement to an Internet site if the 

25 service could not reasonably determine 


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1 before serving the advertisement that 

2 the advertisement was being served to 

3 the Internet site subject to the order. 

4 ‘‘(3) COMMUNICATION WITH USERS.—A finan5 cial transaction provider or an Internet advertising 

6 service required to implement measures described in 

7 paragraph (2) shall determine how to communicate 

8 with the users or customers of the provider or serv9 ice, as the case may be, with respect to those meas10 ures. 

11 ‘‘(4) RULES OF CONSTRUCTION.— 

12 ‘‘(A) LIMITATION ON OBLIGATIONS.—A fi13 nancial transaction provider or an Internet ad14 vertising service required to implement meas15 ures described in paragraph (2) shall not be re16 quired to take measures or actions in addition 

17 to the measures described in paragraph (2) pur18 suant to this section or an order issued under 

19 this section. 

20 ‘‘(B) MANNER OF COMPLIANCE.—A finan21 cial transaction provider or an Internet adver22 tising service required to implement measures 

23 described in paragraph (2) shall be in compli24 ance with this subsection if the provider or 

25 service, as the case may be, implements the 


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1 measures described in that paragraph with re2 spect to accounts of the provider or service, as 

3 the case may be, on or after the date on which 

4 a copy of an order is served under paragraph 

5 (1) or, if applicable, the date on which the 

6 order is modified or amended under paragraph 

7 (3) or (4) of subsection (f). 

8 ‘‘(5) ACTIONS PURSUANT TO COMMISSION

9 ORDER.— 

10 ‘‘(A) IMMUNITY FROM CIVIL ACTIONS.—No 

11 cause of action shall lie in any court against a 

12 financial transaction provider or an Internet ad13 vertising service on which a copy of an order is 

14 served under paragraph (1), or against any di15 rector, officer, employee, or agent thereof, other 

16 than in an action pursuant to subsection (h), 

17 for— 

18 ‘‘(i) any act reasonably designed to 

19 comply with this subsection or reasonably 

20 arising from the order; or 

21 ‘‘(ii) any act, failure, or inability to 

22 meet the obligations under this subsection 

23 of the provider or service if the provider or 

24 service, as the case may be, makes a good 


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1 faith effort to comply with such obliga2 tions. 

3 ‘‘(B) IMMUNITY FROM LIABILITY.—A fi4 nancial transaction provider or an Internet ad5 vertising service on which a copy of an order is 

6 served under paragraph (1), and any director, 

7 officer, employee, or agent thereof, shall not be 

8 liable to any person for any acts reasonably de9 signed to comply with this subsection or reason10 ably arising from the order, other than in an 

11 action pursuant to subsection (h). 

12 ‘‘(C) IMMUNITY FROM ACTIONS OF THIRD

13 PARTIES.—An action taken by a third party to 

14 circumvent any measures implemented pursuant 

15 to an order served on a financial transaction 

16 provider or Internet advertising service under 

17 paragraph (1) may not be used by any person 

18 in any claim or cause of action against the pro19 vider or service, as the case may be, other than 

20 in an action pursuant to subsection (h). 

21 ‘‘(h) ENFORCEMENT OF ORDERS.— 

22 ‘‘(1) IN GENERAL.—In order to compel compli23 ance with this section, the Attorney General may 

24 bring an action for injunctive relief against any per25 son subject to an order issued under subsection (f) 


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1 or on which such an order is served under subsection 

2 (g) that knowingly and willfully fails to comply with 

3 the order. 

4 ‘‘(2) RULE OF CONSTRUCTION.—The authority 

5 granted to the Attorney General under paragraph 

6 (1) shall be the sole legal remedy for enforcing the 

7 obligations under subsection (g) of a financial trans8 action provider or Internet advertising service on 

9 which an order is served under paragraph (1) of 

10 that subsection. 

11 ‘‘(3) AFFIRMATIVE DEFENSES.—A defendant in 

12 an action commenced under paragraph (1) may es13 tablish an affirmative defense by showing that the 

14 defendant does not have the technical means to com15 ply with this section without incurring an unreason16 able economic burden or that the order is incon17 sistent with this section. That showing shall serve as 

18 a defense only to the extent of the inability of the 

19 defendant to comply or to the extent of the incon20 sistency. 

21 ‘‘(i) SANCTIONS FOR ABUSE OF PROCESS AND DIS22 COVERY.—The Commission may, by rule, prescribe sanc23 tions for abuse of process in a manner consistent with the 

24 provisions of rule 11 and rule 37 of the Federal Rules 

25 of Civil Procedure. 


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1 ‘‘(j) IMMUNITY FOR ENFORCEMENT OF ORDERS.— 

2 No cause of action shall lie in any court, no person may 

3 rely on any claim or cause of action, and no liability for 

4 damages to any person shall be granted, against a finan5 cial transaction provider or Internet advertising service for 

6 taking any action pursuant to subsection (g)(2) with re7 spect to an Internet site, or otherwise declining to serve 

8 or terminating transactions with an Internet site, in the 

9 reasonable belief based on credible evidence that— 

10 ‘‘(1) the Internet site is an Internet site dedi11 cated to infringing activity; and 

12 ‘‘(2) the action is consistent with the terms of 

13 service and other contractual obligations of the pro14 vider or service, as the case may be. 

15 ‘‘(k) IMMUNITY FOR TAKING VOLUNTARY ACTION

16 AGAINST SITES THAT ENDANGER PUBLIC HEALTH.— 

17 ‘‘(1) REFUSAL OF SERVICE.—A financial trans18 action provider or Internet advertising service, act19 ing in good faith and based on credible evidence, 

20 may cease providing or refuse to provide services to 

21 an Internet site the provider or service determines to 

22 be an Internet site that endangers the public health. 

23 ‘‘(2) IMMUNITY FROM LIABILITY.—A financial 

24 transaction provider or Internet advertising service 

25 described in paragraph (1), including its directors, 


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•HR 3782 IH

1 officers, employees, or agents, that ceases or refuses 

2 to provide services under that paragraph shall not be 

3 liable to any person under any Federal or State law 

4 for ceasing or refusing to provide such services. 

5 ‘‘(3) DEFINITIONS.—In this subsection: 

6 ‘‘(A) DRUG.—The term ‘drug’ has the 

7 meaning given that term in section 201(g)(1) of 

8 the Federal Food, Drug, and Cosmetic Act (21 

9 U.S.C. 321(g)(1)). 

10 ‘‘(B) INTERNET SITE THAT ENDANGERS

11 THE PUBLIC HEALTH.—The term ‘Internet site 

12 that endangers the public health’ means an 

13 Internet site that is primarily designed or oper14 ated for the purpose of, has only limited pur15 pose or use other than, or is marketed by its 

16 operator or another person acting in concert 

17 with that operator for use in offering, selling, 

18 dispensing, or distributing any prescription 

19 medication, and does so regularly without a 

20 valid prescription. 

21 ‘‘(C) PRESCRIPTION MEDICATION.—The 

22 term ‘prescription medication’ means a drug 

23 that is subject to section 503(b) of the Federal 

24 Food, Drug, and Cosmetic Act (21 U.S.C. 

25 353(b)). 


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1 ‘‘(D) VALID PRESCRIPTION.—The term 

2 ‘valid prescription’ has the meaning given that 

3 term in section 309(e)(2)(A) of the Controlled 

4 Substances Act (21 U.S.C. 829(e)(2)(A)). 

5 ‘‘(l) SAVINGS CLAUSES.— 

6 ‘‘(1) IN GENERAL.—Nothing in this section 

7 shall be construed to limit or expand civil or criminal 

8 remedies available to any person (including the 

9 United States) for activities that infringe intellectual 

10 property rights on the Internet pursuant to any 

11 other Federal or State law. 

12 ‘‘(2) RULE OF CONSTRUCTION RELATING TO VI13 CARIOUS OR CONTRIBUTORY LIABILITY.—Nothing in 

14 this section shall be construed— 

15 ‘‘(A) to enlarge or diminish vicarious or 

16 contributory liability for any cause of action 

17 available under title 17, United States Code, or 

18 the Lanham Act, including any limitations on 

19 liability under section 512 of such title 17; or 

20 ‘‘(B) to create an obligation to take action 

21 pursuant to subsection (k). 

22 ‘‘(3) RULE OF CONSTRUCTION RELATING TO

23 LIMITATIONS, EXCEPTIONS, AND DEFENSES.—Noth24 ing in this section shall be construed to affect, limit, 

25 or deny application of any limitation, exception, or 


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1 defense to copyright or trademark causes of action, 

2 including fair use and other exceptions, limitations, 

3 or defenses available to any person pursuant to any 

4 other Federal or State law. 

5 ‘‘(4) RULE OF CONSTRUCTION RELATING TO

6 CIVIL ACTIONS.—The issuance of an order and ac7 tions taken or not taken pursuant to this section 

8 shall be inadmissible as evidence in any civil action 

9 (other than an action under this section to enforce 

10 compliance with subsection (b)) to establish that a 

11 party who has received, or is otherwise made aware 

12 of, such an order has knowledge regarding any in13 fringing activities relating to the Internet site sub14 ject to the order, including under section 512 of title 

15 17, United States Code, in determining whether any 

16 service provider had actual knowledge or should have 

17 known of the infringing activity.’’. 

18 (b) DISCLOSURE OF CONFIDENTIAL INFORMA19 TION.—Section 337(n) of the Tariff Act of 1930 (19 

20 U.S.C. 1337(n)) is amended— 

21 (1) in paragraph (1), by inserting ‘‘or section 

22 337A’’ after ‘‘this section’’; and 

23 (2) in paragraph (2)— 

24 (A) in subparagraph (A)— 


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1 (i) in clause (ii), by striking ‘‘(j)’’ and 

2 inserting ‘‘(j) of this section’’; 

3 (ii) in clause (iii), by striking ‘‘(g), a 

4 cease and desist order issued pursuant to 

5 subsection (f), or a consent order issued 

6 pursuant to subsection (c)’’ and inserting 

7 ‘‘(g) of this section, a cease and desist 

8 order issued pursuant to subsection (f) of 

9 this section or subsection (f) of section 

10 337A, or a consent order issued pursuant 

11 to subsection (c) of this section or sub12 section (d) of section 337A’’; and 

13 (iii) in clause (iv), by striking ‘‘(i), or 

14 a consent order issued under this section’’ 

15 and inserting ‘‘(i) of this section or sub16 section (f) of section 337A, or a consent 

17 order issued under this section or sub18 section (d) of section 337A’’; 

19 (B) in subparagraph (B), by striking ‘‘(j)’’ 

20 and inserting ‘‘(j) of this section or subsection 

21 (e)(5) of section 337A’’; and 

22 (C) in subparagraph (C), by striking ‘‘(g)’’ 

23 and inserting ‘‘(g) of this section’’. 


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1 SEC. 3. APPOINTMENT OF HEARING OFFICERS FOR PRO2 CEEDINGS UNDER SECTIONS 337 AND 337A OF 

3 THE TARIFF ACT OF 1930. 

4 Title III of the Tariff Act of 1930 (19 U.S.C. 1304 

5 et seq.), as amended by section 2, is further amended by 

6 inserting after section 337A the following: 

7 ‘‘SEC. 337B. SECTION 337 JUDGES. 

8 ‘‘(a) IN GENERAL.—Notwithstanding section 556(b) 

9 of title 5, United States Code, the Commission may ap10 point hearing officers, other than administrative law 

11 judges appointed under section 3105 of title 5, United 

12 States Code, to preside at the taking of evidence at hear13 ings required by sections 337 and 337A and to make ini14 tial and recommended decisions in accordance with sec15 tions 554, 556, and 557 of such title in investigations 

16 under sections 337 and 337A. The hearing officers ap17 pointed under this subsection shall be known as ‘section 

18 337 judges’. 

19 ‘‘(b) QUALIFICATIONS.—An individual appointed as 

20 a section 337 judge under paragraph (1) shall possess a 

21 minimum of 7 years of legal experience and be licensed 

22 to practice law under the laws of a State, the District of 

23 Columbia, the Commonwealth of Puerto Rico, or any terri24 torial court established under the Constitution of the 

25 United States. The Commission may promulgate such 

26 other regulations as the Commission considers necessary 


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1 with respect to the qualifications of section 337 judges, 

2 including technical expertise and experience in patent, 

3 trademark, copyright, and unfair competition law. 

4 ‘‘(c) ROTATION.—Section 337 judges shall be as5 signed to cases in rotation to the extent practicable or as 

6 otherwise provided for in the rules of the Commission. 

7 ‘‘(d) OTHER DUTIES.—A section 337 judge may not 

8 perform duties inconsistent with the duties and respon9 sibilities of a section 337 judge. 

10 ‘‘(e) REMOVAL.—A section 337 judge may be re11 moved only for good cause shown upon a hearing con12 ducted on the record by the Merit Systems Protection 

13 Board. The failure of the Commission to adopt the initial 

14 or recommended decision of a section 337 judge shall not 

15 constitute good cause. 

16 ‘‘(f) COMPETITIVE SERVICE.—Except as otherwise 

17 provided, the laws, rules, and regulations applicable to po18 sitions in the competitive service apply to section 337 

19 judges. Upon appointment, a section 337 judge shall be 

20 paid in accordance with the pay rates provided for in sec21 tion 5372 of title 5, United States Code, commensurate 

22 with the pay rate of an administrative law judge with simi23 lar time in service. Section 337 judges shall not be Senior 

24 Executive Service positions (as defined in section 3132(a) 

25 of title 5, United States Code). 


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1 ‘‘(g) PERFORMANCE EVALUATIONS.—Section 337 

2 judges shall not receive performance evaluations and shall 

3 not be compensated based on performance.’’. 

4 SEC. 4. INFORMATION SHARING WITH RESPECT TO THE IM5 PORTATION OF INFRINGING MERCHANDISE. 

6 (a) MERCHANDISE THAT INFRINGES TRADE7 MARKS.— 

8 (1) IN GENERAL.—Notwithstanding section 

9 1905 of title 18, United States Code, if the Commis10 sioner responsible for U.S. Customs and Border 

11 Protection suspects that merchandise is being im12 ported into the United States in violation of section 

13 42 of the Lanham Act, and subject to any applicable 

14 bonding requirements, the Secretary of Homeland 

15 Security may, for purposes of determining whether 

16 the merchandise is being imported in violation of 

17 that section, share with the holder of the trademark 

18 suspected of being infringed— 

19 (A) information about the merchandise or 

20 packaging or labels of the merchandise; or 

21 (B) unredacted samples, or photographs 

22 of, the merchandise or packaging or labels of 

23 the merchandise. 

24 (2) LANHAM ACT DEFINED.—In this subsection, 

25 the term ‘‘Lanham Act’’ means the Act entitled ‘‘An 


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1 Act to provide for the registration and protection of 

2 trademarks used in commerce, to carry out the pro3 visions of certain international conventions, and for 

4 other purposes’’, approved July 5, 1946 (commonly 

5 referred to as the ‘‘Trademark Act of 1946’’ or the 

6 ‘‘Lanham Act’’). 

7 (b) MERCHANDISE THAT CIRCUMVENTS COPY8 RIGHTS.— 

9 (1) IN GENERAL.—Notwithstanding section 

10 1905 of title 18, United States Code, if the Commis11 sioner seizes merchandise that the Commissioner 

12 suspects of being imported into the United States in 

13 violation of subsection (a)(2) or (b) of section 1201 

14 of title 17, United States Code, the Secretary of 

15 Homeland Security may notify a copyright owner de16 scribed in paragraph (2) of the seizure of the mer17 chandise. 

18 (2) COPYRIGHT OWNER DESCRIBED.—A copy19 right owner described in this paragraph is the owner 

20 of a copyright under title 17, United States Code, if 

21 merchandise seized on the suspicion of being im22 ported in violation of subsection (a)(2) or (b) of sec23 tion 1201 of title 17, United States Code— 

24 (A) is primarily designed or produced for 

25 the purpose of circumventing, has only limited 


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1 commercially significant purpose or use other 

2 than to circumvent, or is marketed for use in 

3 circumventing, a technological measure that ef4 fectively controls access to a work protected by 

5 that copyright; or 

6 (B) is primarily designed or produced for 

7 the purpose of circumventing, has only limited 

8 commercially significant purpose or use other 

9 than to circumvent, or is marketed for use in 

10 circumventing, protection afforded by a techno11 logical measure that effectively protects the 

12 rights of the copyright owner in a work or a 

13 portion of a work. 

14 SEC. 5. REGULATIONS. 

15 Not later than 270 days after the date of the enact16 ment of this Act, the United States International Trade 

17 Commission shall prescribe regulations— 

18 (1) to provide for procedures for receiving infor19 mation from the public about Internet sites dedi20 cated to infringing activity (as defined in section 

21 337A(a) of the Tariff Act of 1930 (as added by sec22 tion 2 of this Act)); 

23 (2) to provide guidance to intellectual property 

24 rights holders about— 


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1 (A) what information those rights holders 

2 should provide to initiate an investigation pur3 suant to section 337A(c) of the Tariff Act of 

4 1930 (as added by section 2 of this Act); and 

5 (B) how to supplement an ongoing inves6 tigation initiated pursuant to that section; 

7 (3) to establish standards for the prioritization 

8 of investigations initiated under that section; and 

9 (4) to provide appropriate resources and proce10 dures for case management and development to af11 fect timely disposition of investigations initiated 

12 under that section. 

13 SEC. 6. STUDY AND REPORTS BY REGISTER OF COPY14 RIGHTS. 

15 The Register of Copyrights shall— 

16 (1) in consultation with appropriate Federal 

17 agencies and other stakeholders, conduct a study 

18 on— 

19 (A) the enforcement and effectiveness of 

20 section 337A of the Tariff Act of 1930 (as 

21 added by section 2 of this Act); and 

22 (B) any modifications to the authorities 

23 provided in that section necessary to address 

24 emerging technologies; and 


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1 (2) not later than 2 years after the date of en2 actment of this Act, submit to the Committee on Fi3 nance and the Committee on the Judiciary of the 

4 Senate, and to the Committee on the Ways and 

5 Means and the Committee on the Judiciary of the 

6 House of Representatives, a report containing the 

7 results of the study conducted under paragraph (1) 

8 and any recommendations that the Register may 

9 have as a result of the study. 

Æ 


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