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PROMOTING INVESTMENT AND PROTECTING COMMERCE ONLINE: LEGITIMATE SITES V. PARASITES (PART I & II) 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

INTELLECTUAL PROPERTY, 

COMPETITION, AND THE INTERNET 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MARCH 14 AND APRIL 6, 2011 

Serial No. 112–153 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

(COMMITTEE MEMBERS—MARCH 14, 2011) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON INTELLECTUAL PROPERTY, COMPETITION, AND THE INTERNET

BOB GOODLATTE, Virginia, Chairman 

HOWARD COBLE, North Carolina, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM REED, New York 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MELVIN L. WATT, North Carolina 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

BLAINE MERRITT, Chief Counsel 

STEPHANIE MOORE, Minority Counsel 

(III) 

(COMMITTEE MEMBERS—APRIL 6, 2011) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON INTELLECTUAL PROPERTY, COMPETITION, AND THE INTERNET

BOB GOODLATTE, Virginia, Chairman 

BEN QUAYLE, Arizona, Vice-Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

SANDY ADAMS, Florida 

[Vacant] 

MELVIN L. WATT, North Carolina 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

BLAINE MERRITT, Chief Counsel 

STEPHANIE MOORE, Minority Counsel 

(V) 

C O N T E N T S 

MARCH 14 AND APRIL 6, 2011 

Page 

HEARINGS 

Monday, March 14, 2011 

Promoting Investment and Protecting Commerce Online: Legitimate Sites 

v. Parasites (Part I) .......................................................................................... 1 

Wednesday, April 6, 2011 

Promoting Investment and Protecting Commerce Online: Legitimate Sites 

v. Parasites (Part II) ........................................................................................ 155 

(PART I) 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Subcommittee on Intellectual Property, Competition, and the Internet .................................................................................... 1 

The Honorable Melvin L. Watt, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Intellectual 

Property, Competition, and the Internet ............................................................ 3 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 4 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Ranking Member, Committee on the Judiciary, and 

Member, Subcommittee on Intellectual Property, Competition, and the 

Internet ................................................................................................................. 5 

The Honorable Tom Reed, a Representative in Congress from the State of 

New York, and Member, Subcommittee on Intellectual Property, Competition, and the Internet .......................................................................................... 12 

The Honorable Howard L. Berman, a Representative in Congress from the 

State of California, and Member, Subcommittee on Intellectual Property, 

Competition, and the Internet ............................................................................ 12 

WITNESSES 

Maria A. Pallante, Acting Register of Copyrights, United States Copyright 

Office 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 17 

David Sohn, Senior Policy Counsel, Center for Democracy and Technology 

(CDT) 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 30 

Daniel Castro, Senior Analyst, Information Technology and Innovation Foundation (ITIF) 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 46 

Frederick Huntsberry, Chief Operating Officer, Paramount Pictures 

Oral Testimony ..................................................................................................... 61 

Prepared Statement ............................................................................................. 63 

Page

VI 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Ranking Member, Committee 

on the Judiciary, and Member, Subcommittee on Intellectual Property, 

Competition, and the Internet ............................................................................ 6 

SUBMISSIONS FOR THE RECORD 

Letter from Timothy Lee, Vice President of Legal and Public Affairs, Center 

for Individual Freedom (CFIF) ............................................................................ 127 

Prepared Statement of Sandra Aistars, Executive Director, Copyright Alliance ....................................................................................................................... 128

Prepared Statement of A. Robert Pisano, President and Chief Operating 

Officer, Motion Picture Association of America, Inc. ........................................ 132 

Letter from John Fithian, President and CEO, National Association of Theatre Owners (NATO) ............................................................................................ 138 

Letter from Michael McCurry and Mark McKinnon, Co-Chairmen, Arts + 

Labs ....................................................................................................................... 140

Material submitted by MiMTiD Corp. ................................................................... 141 

Prepared Statement of the Consumer Electronics Association ............................ 150 

Letter from Kevin Spreekmeester, Vice President of Global Marketing, Canada Goose .............................................................................................................. 153 

(PART II) 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Subcommittee on Intellectual Property, Competition, and the Internet .................................................................................... 155 

The Honorable Melvin L. Watt, a Representative in Congress from the State 

of North Carolina, and Ranking Member, Subcommittee on Intellectual 

Property, Competition, and the Internet ............................................................ 158 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 159 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Ranking Member, Committee on the Judiciary, and 

Member, Subcommittee on Intellectual Property, Competition, and the 

Internet ................................................................................................................. 160 

WITNESSES 

The Honorable John Morton, Director, U.S. Immigration and Customs Enforcement 

Oral Testimony ..................................................................................................... 162 

Prepared Statement ............................................................................................. 165 

Floyd Abrams, Senior Partner, Cahill Gordon & Reindel LLP 

Oral Testimony ..................................................................................................... 186 

Prepared Statement ............................................................................................. 188 

Kent Walker, Senior Vice President and General Counsel, Google 

Oral Testimony ..................................................................................................... 200 

Prepared Statement ............................................................................................. 202 

Christine N. Jones, Executive Vice President and General Counsel, Go Daddy 

Group 

Oral Testimony ..................................................................................................... 211 

Prepared Statement ............................................................................................. 213 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by by the Honorable Bob Goodlatte, a Representative 

in Congress from the State of Virginia, and Chairman, Subcommittee on 

Intellectual Property, Competition, and the Internet ....................................... 225 

Page

VII 

Material submitted by by the Honorable Bob Goodlatte, a Representative 

in Congress from the State of Virginia, and Chairman, Subcommittee on 

Intellectual Property, Competition, and the Internet ....................................... 244 

Material submitted by by the Honorable Debbie Wasserman Schultz, a Representative in Congress from the State of Florida, and Member, Subcommittee on Intellectual Property, Competition, and the Internet ............... 257 

SUBMISSIONS FOR THE RECORD 

Prepared Statement of the Honorable Darrell Issa, a Representative in Congress from the State of California, and Member, Subcommittee on Intellectual Property, Competition, and the Internet .................................................... 271 

Prepared Statement of the Honorable Tim Griffin, a Representative in Congress from the State of Arkansas, and Member, Subcommittee on Intellectual Property, Competition, and the Internet .................................................... 273 

Letter from Maria A. Pallante, Acting Register of Copyrights, United States 

Copyright Office ................................................................................................... 274 

Prepared Statement of Brian Napack, President, Macmillian ............................ 277 

Prepared Statement of the Motion Picture Association of America, Inc. ............ 284 

Letter from David Wallace Cox, President and Chief Enforcement Officer, 

MiMTid Corp. ....................................................................................................... 291 

Press Release from the Interactive Advertising Bureau (iab) ............................. 298 

(1) 

PROMOTING INVESTMENT AND PROTECTING 

COMMERCE ONLINE: LEGITIMATE SITES V. 

PARASITES (PART I) 

MONDAY, MARCH 14, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INTELLECTUAL PROPERTY,

COMPETITION, AND THE INTERNET, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 4:05 p.m., in room 

2141, Rayburn House Office Building, the Honorable Bob Goodlatte 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Goodlatte, Smith, Coble, Chabot, Reed, 

Griffin, Marino, Adams, Quayle, Watt, Conyers, Berman, Chu, 

Deutch, and Lofgren. 

Staff Present: (Majority) David Whitney, Counsel; Olivia Lee, 

Clerk; and (Minority) Stephanie Moore, Subcommittee Chief Counsel. 

Mr. GOODLATTE. Good afternoon. The Subcommittee will come to 

order. 

I will recognize myself for an opening statement. 

For more than two centuries, America’s economic strength has 

been built on a firm foundation. The rule of law, respect for individuals and private property and the promotion of industry through 

policies that reward creativity and innovation are essential virtues 

that helped a fledgling Nation encourage the initiative of its citizens and in time emerge as the most advanced and prosperous on 

Earth. 

But these virtues are not universal. In an increasingly connected 

world, threats that emanate from areas where they are not shared 

can jeopardize our ability to sustain the incentives needed to foster 

growth and development and advance human progress. 

These threats create challenges for us in both the physical world 

and the virtual world where the systematic and willful violation of 

intellectual property rights now poses a clear, present and growing 

danger to American creators and innovators, U.S. consumers and 

our collective confidence in the Internet ecosystem. Within that ecosystem today, there are legitimate commercial sites that authorized 

goods and services. Indeed, many exciting new technologies and 

websites help content owners distribute music, movies, books, 

games, software and other copyrighted works in ways that were not 

even imaginable 10 years ago. 

2 

However, there are also what might be called online parasites, 

or rogue sites, that steal the intellectual property of others and 

traffic in counterfeit and pirated goods. The Merriam-Webster Dictionary defines a parasite as ‘‘something that resembles a biological 

parasite in dependence on something else for existence or support 

without making a useful or adequate return.’’ 

In a very real sense, that is an apt description of how these sites 

operate. They depend upon the investments, creativity and innovation of others while offering nothing of benefit in return. 

Indeed, according to the Motion Picture Association of America, 

websites that peddle stolen digital content represent, ‘‘the most 

pernicious forms of digital theft,’’ and they present a two-pronged 

threat. They simultaneously weaken the film and TV industry by 

undercutting, eliminating or reducing the market for film and television production, which millions rely on for jobs, and discourage 

legitimate companies from investing in new business models to provide high-quality content and more consumer choice online. 

Frederick Huntsberry, the chief operating officer of Paramount 

Pictures, who is with us today, believes these sites, left unchecked, 

will decimate the motion picture industry. He describes an online 

shadow economy that distributes stolen property on a revenue-generating basis, diverting consumer spending from the creators into 

the hands of criminals often outside the United States and further 

robbing Americans of jobs and investments in new productions, 

while depriving governments of tax revenue. 

In recent years, these websites have evolved. They have become 

increasingly sophisticated and rival legitimate sites in appearance, 

operation and indicia of reliability. U.S. consumers are frequently 

led to these sites by search engines that list them among the top 

search results. After clicking on a site, they may be immediately 

reassured by the logos of U.S. payment processors and the presence 

of major corporate advertising supporting the site. 

But just how popular and profitable are these sites? One 

cyberlocker, that is used to store and stream copyrighted content, 

ranks as the 51st most popular website while a business analysis 

provided by Paramount estimated a minimal annual profit of 41 to 

$304 million for one infringing cyberlocker. Who says crime doesn’t 

pay? 

At the request of the Subcommittee, the Acting Register of Copyrights, Ms. Maria Pallante, who is also with us today, has been 

meeting with stakeholders to consider the issues associated with 

online parasites. One of her conclusions is that these sites exploit 

highly creative and economically valuable copyrighted works because there is no real expectation of enforcement. She notes that 

the most pressing issue is how to tackle sites based in foreign jurisdiction and observes that the continued evidence of widespread 

global Internet copyright infringement suggests that international 

cooperation alone cannot be the only solution to this global problem. 

Ms. Pallante recommends that copyright enforcement follow the 

money within the Internet ecosystem and cut off these sites from 

U.S.-based revenue. She warns these sites undermine the incentives for legitimate commerce and threaten to weaken the robust 

innovation-based markets that exist in the United States today. 

3 

This matter has been a top priority and will become a principal 

focus for the Subcommittee in the coming months. Today’s hearing 

marks the first of two oversight hearings we will conduct to make 

certain we are fully acquainted with the range of issues involved. 

I intend to take the time necessary to build a complete record 

and balance appropriately all the interest before introducing a bill 

that will contain meaningful and effective new authority. As this 

process progresses, I look forward to working with Members on 

both sides of the aisle and with our colleagues on the other side 

of the Capitol, as well as stakeholders in the private sector. With 

19 million Americans employed in IP intensive industries, we owe 

it to them and to ourselves to ensure any legislation we send to the 

President will be effective. 

It is important to note that whatever legislative product we enact 

will be only one solution to this problem. It is my strong hope that 

the stakeholders in content, technology, financial and Internet communities will see any legislation we enact not as the end of this 

debate, but as the starting point for more discussions among the 

private parties to find additional innovative solutions to the threat 

of online piracy. 

It is now my pleasure to recognize the Ranking Member of the 

Committee, the gentleman from North Carolina, Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman, and thank you for convening this hearing. There is little disagreement that online theft 

of intellectual property is increasing and negatively impacting the 

rights holders and our economy. 

As the GAO found last year, the problem is sizeable. The Internet has provided an explosion of e-commerce and a new marketplace for American innovators. Industries with heavy intellectual 

property interests have powered the American economy as the 

Internet has become a dominant venue for commerce. 

Today’s hearing explores how to promote this commerce online by 

protecting the legitimate sites, but addressing the problems that 

have arisen as what the title to this hearing refers to as 

‘‘parasites.’’ I actually think a more appropriate term for them 

would be pirasites, pirasites, rogue websites, mostly foreign, engage 

in illicit conduct and are generally designed to pirate others’ property for economic gain. 

A study from Frontier Economics estimates that in 2008 alone, 

over $650 billion was lost internationally from online counterfeiting 

and piracy. Counterfeit goods sold online on these pirasites posed 

serious health and safety concerns. Just last night, 60 Minutes featured a segment on the sale of fake and tainted medicines and 

medical products that often come from illegitimate, online pharmacies. 

Congress must take heed or run the risk that criminals and organized crime cartels who profit from piracy and counterfeit products 

hijacked the Internet to the disadvantage of law-abiding citizens. 

At a time that intellectual property intensive industries provide 

more than 19 million U.S. jobs and account for more than 60 percent of U.S. exports, pirasites and the theft of intellectual property 

represents probably, far and away, the largest criminal enterprise 

in the world, and we are probably spending less to prevent it than 

we spend to counter old-fashioned bank robberies. In fact, elecVerDate Aug 31 2005 11:30 Jan 02, 2013 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6601 H:\WORK\IP\COMBINE\65186.000 HJUD1 PsN: 65186
4 

tronic bank robbery is a much more significant threat now than 

armed bank robbery ever was. 

How we preserve due process and free speech rights, as well as 

confront this problem, will be critically important as we move forward. We cannot just go around and take sites down without due 

process or probable cause any more than we could arrest old-fashioned bank robbers only on suspicion. 

I look forward to hearing each of the witnesses’ perspectives on 

the scope of the problem, and I hope that we will also hear concrete 

proposals for legislative solutions to help remedy this significant 

drain on our economy. 

I yield back, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. It is now my pleasure 

to recognize the Chairman of the Judiciary Committee and one who 

has been deeply concerned and a leader on this issue, the gentleman from Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

This important hearing will point out the destructive effects of 

online parasites, those rogue entities that generate huge profits 

from the theft of intellectual property. 

The Internet is a wonderful tool that has forever changed the 

way we communicate, conduct business and relate to one another. 

Most users want a safe computing experience and only use the 

Internet for lawful and legitimate purposes. 

But others employ it as a tool to perpetrate fraud, steal identities, traffic and counterfeit or pirated goods or engage in even more 

disturbing crimes such as child pornography. Today our focus is on 

the illicit trade in counterfeit and pirated goods. This Committee 

has long recognized the positive contributions of America’s intellectual property industries. They contribute 19 million jobs, more than 

60 percent of U.S. exports, support tens of thousands of small businesses and generate tens of millions of tax revenue for communities across our Nation. 

IP enterprises drive our productivity, produce our entertainment 

and promote our economy, but these industries face a threat in the 

form of exponentially increasing counterfeiting and piracy. A recent 

study revealed that one-quarter of global Internet traffic infringes 

on the rights of IP owners. 

Internet piracy is so profitable and pernicious that it discourages 

investments, innovation and licensed content from legitimate companies. It is clear that existing laws are inadequate and we must 

do more to confront the problem. 

Just over 2 years ago, then-Chairman Conyers and I worked with 

other Members of this Committee, including the Chairman and 

Ranking Member of the Subcommittee, to enact the prioritizing resources and organization for the Intellectual Property Act of 2008 

or PRO-IP. The purpose of that law was to strengthen American 

industry and protect American jobs by improving the government’s 

response to the threats posed by counterfeiting and piracy. 

When considered on the House floor PRO-IP, passed by a vote of 

410-11, a result that demonstrated our bipartisan commitment to 

IP protection. PRO-IP was a good start, but much more needs to 

be done. We will work to strengthen the law to ensure criminals 

5 

who operate online are not able to harm U.S. consumers and steal 

from American innovators. 

Mr. Chairman, it is appropriate that Frederick Huntsberry, the 

COO of Paramount Pictures, is a witness today, since the present 

situation reminds me of a 1987 Paramount motion picture that 

starred one of my favorite actors, Sean Connery. 

In The Untouchables, Connery played Chicago Detective Jim Malone. In a memorable scene, Malone tells Eliot Ness that if he is 

serious about getting Al Capone, then he must be prepared to pull 

a gun if one of Capone’s gang pulls a knife. You all have heard 

that. 

For IP onlies and other legitimate companies who have had to 

rely upon ineffective online enforcement regimes for far too long, it 

must seem that they have been forced to take a knife to a gun 

fight. It is time we help them fight back. We can no longer tolerate 

a state of affairs that requires U.S. citizens to be subjected to the 

illicit importation of infringing goods in violation of Federal law, 

and the constitutional protections that are designed to promote innovation and creativity. 

Mr. Chairman, I look forward to moving strong and appropriate 

legislation through this Committee, and I appreciate the witnesses 

here today and their helping us accomplish that goal. 

I yield back. 

Mr. GOODLATTE. I thank the Chairman. The Chair now recognizes the Ranking Member of the full Committee, the gentleman 

from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you. I wanted to congratulate you, Chairman Goodlatte, on the way all of us have come together on this important subject. I will put my statement in the record, but I would 

like to get this started by offering a definition of rogue site and it 

will be distributed. 

An Internet site is a ‘‘rogue site’’ if it is primarily structured in 

order to, and has no demonstrable, or significant commercial purpose or use other than to offer goods or services in violation of title 

17, including by offering or providing access to, in a manner not 

authorized by the intellectual property 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, streaming or other 

transmission. 

Because that is what I think is going to be the important consideration for this Committee. 

I join in welcoming, particularly the chief operating officer of 

Paramount Pictures, our register of copyrights and our two distinguished experts, David Sohn and Daniel Castro. 

Thank you, Chairman Goodlatte. 

[The prepared statement of Mr. Conyers follows:] 

6 


65186A-1.eps

Statement of the Honorable John Conyers, Jr. 

for the Hearing on Promoting Investment and 

Protecting Commerce Online: Legitimate Sites v. 

Parasites, Part I 

Monday, March 14,2011, at 4:00 a.m. 

2141 Rayburn House Office Building 

Thank you, Chairman Goodlatte, for convening 

this hearing. I expect that today' s discussions will 

prove highly useful as I and other Members of the 

Judiciary Committee craft legislation to get at the 

crux of protecting America's intellectual property on 

the Internet. 

First, I would like to note that with regard to 

intellectual property and the economy: the stakes are 

only growing higher. 
7 


65186A-2.eps

Trillions of dollars and millions of American 

jobs stem from the intellectual property industries, 

and this sector is fast becoming our economy's most 

powerful engine for growth. Just as these industries 

have powered the American economy, so has the 

Internet risen as a dominant venue for commerce. 

But a study from Frontier Economics estimates 

that in 2008 alone more than $650 billion was lost 

across the globe due to online counterfeit and piracy. 

For the United States, economists estimate that 

annual copyright theft costs our economy $58 billion 

in lost output and denies us nearly 400,000 jobs. For 

the U.S. auto-industry, for example, counterfeit 

auto-parts drain $3 billion and approximately 

250,000 jobs each year. 

2 
8 


65186A-3.eps

Beyond economic indicators like these, 

however, counterfeit goods sold online have 

jeopardized the health and safety of thousands of 

Americans who have received fake and tainted 

medicines and medical products from illegitimate 

online pharmacies. 

The Internet has regrettably become a cash-cow 

for the criminals and organized crime cartels who 

profit from piracy and counterfeit products. A 

study released in January by the research company 

Envisional revealed that nearly one-third of global 

online traffic involves copyright infringement. With 

an estimated 2 billion people accessing the Internet 

annually: this translates to a devastating amount of 

property theft and job-destruction. 

3 
9 


65186A-4.eps

Secondly, I would note that the problems we are 

talking about have a social and cultural dimension. 

The sad truth is that many people don't make the 

connection that when they download a camcorded 

movie through a "cyberlocker" while that same 

movie is playing in a theater a couple of blocks 

away, they are watching stolen property and may be 

enriching foreign criminal syndicates. Moreover, 

the peer-to-peer and cyberlocker technology used to 

access copyrighted entertainment and software are 

also notoriously exploited by identity-theft criminals 

to access people's financial and personal data. 

Coalitions of businesses, educators, and political 

leaders have much more to do when it comes to 

educating Americans - particularly our school-age 

4 
10 


65186A-5.eps

children - about online safety and respect for 

property rights. 

Finally, I believe that the situation has grown so 

grave for American workers that legislative action 

has become warranted. While I have several 

concerns about the details of some of the legislative 

proposals that have been put forth - namely I want 

to make sure that due process and free speech rights 

are adequately protected, I am encouraged that this 

hearing is entitled "Part I" on this issue. 

I look forward to hearing each of the witnesses' 

perspectives on the scope of the problem, and I also 

hope that they will help us to craft legislative 

solutions. I would like to see Congress act to protect 

5 
11 

Mr. GOODLATTE. I thank the Chairman emeritus for his remarks. 

We, by special request and agreement, are going to recognize one 

additional Member on each side of the aisle for an opening statement, and then we will ask all of our Members to put their statements into the record. 


65186A-6.eps
12 

So the Chair at this time recognizes the gentleman from New 

York, Mr. Reed. 

Mr. REED. Thank you very much, Chairman, for this special consideration. I would like to thank Chairman Goodlatte and Ranking 

Member Watt for calling this important hearing today, as well as 

thank our witnesses who have agreed to participate. 

I firmly believe that criminal domestic and offshore websites 

dedicated to the online theft of music, movies, books, pharmaceuticals and other intellectual property harm the U.S. economy, 

our balance of trade, U.S. employment and put companies, consumers and other individual artists in New York and throughout 

the country at a severe disadvantage. 

What was once more about college students downloading music 

in their dorm rooms, online piracy has now grown to the point to 

where many U.S. companies and small creators are at risk of surviving. I am pleased to see bipartisan legislation introduced into 

the 111th Congress and the U.S. Senate by Senators Lee and 

Hatch. I look forward to working in a bipartisan fashion in the 

House to address many of these same issues. 

Many have said that legislative activity aimed at reducing piracy 

could prevent free speech and shut down the technological infrastructure which the Internet was built upon. 

I, however, remain convinced that the popularity of the Internet, 

in the first place, is driven largely from the availability of highquality copyrighted content, including films and TV programs that 

are delivered to users in innovative ways. I remain concerned these 

claims have yet to be fully vetted and hope this hearing and those 

that follow touch on these claims. 

Finally, I am hopeful for an open dialogue with all stakeholders 

in the Internet ecosystem as it relates to any potential legislation 

out of the Judiciary Committee. 

I am particularly concerned that inclusion of private right of action language and the prospective negative impacts on any legislation that we put forward. In addition, I amhopeful that the Committee will be open to having discussions on search engines and 

how they relate to the popularity of various pirated websites. 

I look forward to any comments on these topics at today’s hearings and I thank the witnesses again, and I thank you, Mr. Chairman. 

I yield back. 

Mr. GOODLATTE. I thank the gentleman, I think the award for 

earliest riser and greatest distance traveled to be with us today 

goes to the gentleman from California, Mr. Berman. And in appreciation for that, we want to recognize him for his opening statement as well. 

Mr. BERMAN. Well, if that is the price of having an opening statement, I will exercise it rarely. 

Mr. GOODLATTE. I think the strategy, actually. 

Mr. BERMAN. Thank you very much, Mr. Chairman for holding 

the hearing. I want to associate myself with yours and the other 

opening comments. 

In investigations you follow the money, which is why many of us 

have invested time in trying to understand how those involved in 

the unlawful distribution of trademarked, copyrighted works are 

13 

able to profit from their crimes. Five or 6 years ago, we worked 

with Visa and MasterCard to stop the misuse of their financial networks by the notorious Russian music site, allofmp3.com. 

We also need to turn a spotlight to online advertisers that are 

hoping that effective mechanisms are put in place to ensure that 

some of America’s best-known companies and brands are not unwittingly helping to make piracy profitable. 

The fight against these parasites or rogue sites is difficult, especially when many operate from servers and registrars located outside of the U.S. with the goal of selling pirated material into the 

U.S. 

In the Foreign Affairs Committee, the IP coordinator, Victoria 

Espinel, and the ICE Director John Morton describe the Administration’s innovative efforts to combat counterfeiting. They are trying new tactics because the anti-piracy tools we adopted in the past 

are inadequate to confront the crimes of today. As we evaluate new 

legislative tools, I have been wrestling with how to define the targets narrowly enough so that we can, on the one hand, rein in truly 

knowing infringers without leaving loopholes that provide a roadmap to criminals or, on the other hand, to put law-abiding sites at 

risk. 

I am also wondering how we set up a streamline process to address the whack-a-mole problem for seized sites that pop back up 

under a different name. By and large, I trust prosecutors to exercise their authority and discretion. Given the growth of online 

theft, the Justice Department may have even been too cautious for 

too long, but we must balance aggressive enforcement with real 

due process. 

And, lastly, as a special and an especially tough question for me 

is whether, due to the lack of resources and competing priorities at 

DOJ, we should take some of the responsibility off law enforcement 

by setting up a mechanism that allows private parties to bring the 

kinds of actions that ICE is now bringing to protect their own property. There aren’t any easy answers, no silver bullets, but it is long 

past time for saying ‘‘no’’ to every new idea. 

Thank you, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. We have a very distinguished panel of witnesses today. Their written statements will be 

entered into the record in their entirety, and I ask the witnesses 

to summarize their testimony in 5 minutes or less to help you stay 

within that time, there is a timing light on your table. When the 

light switches from green to yellow you have 1 minute to conclude 

your testimony. 

When the light turns red, it signals your 5 minutes have expired. 

And before I introduce our witnesses and as is customary for this 

Committee, I ask that they stand and be sworn. 

[Witnesses sworn.] 

Mr. GOODLATTE. Our first witness is Maria Pallante, a senior adviser to the Librarian of Congress and the Acting Register of Copyrights, a position she temporarily assumed at the beginning of 

2011. 

The Register of Copyrights is a unique and important position. 

Among other duties, the register serves as the principal adviser to 

Congress on matters of copyright policy. Ms. Pallante has spent 

14 

much of her career in the office where she previously served as the 

associate register for policy and international affairs, deputy general counsel and a policy adviser. 

In addition, Ms. Pallante spent nearly a decade as intellectual 

property counsel and director of licensing for the Guggenheim Museums in New York. She earned her JD from George Washington 

University and her bachelor’s degree from Misericordia University, 

where she was also awarded an honorary degree of humane letters. 

Our second witness is David Sohn, senior policy counsel and director for the Center for Democracy and Technology, CDT’s project 

on intellectual property and technology. Prior to joining CDT, Mr. 

Sohn worked for nearly 5 years as commerce counsel to Senator 

Ron Wyden. Before that, he practiced law at a Washington D.C. 

Law firm. He earned his JD from Stanford Law School and his BA 

degree from Amherst College. Mr. Sohn has also a degree from the 

London School of Economics. 

Our third witness is Daniel Castro, a senior analyst with the Information Technology and Innovation Foundation, ITIF. Before 

joining ITIF, Mr. Castro worked as an IT analyst at the U.S. Government Accountability Office where he audited IT security and 

management controls at various government agencies. 

Mr. Castro was also a visiting scientist at the Software Engineering Institute in Pittsburgh. He earned an MS in information security and management from Carnegie Mellon University and a BS 

in foreign service from Georgetown. 

Our final witnesses is Frederick Huntsberry, the chief operating 

officer of Paramount Pictures, where he is responsible for strategic 

planning and operations for the studio. Prior to joining Paramount, 

Mr. Huntsberry spent nearly a decade serving in a wide variety of 

executive and senior management positions at NBCUniversal and 

affiliated companies as well as at Vivendi Universal. 

He also spent over a dozen years with General Electric’s Europe 

division. Mr. Huntsberry has a bachelor’s degree with a concentration in finance from Boston University. 

We welcome all of our witnesses to the Subcommittee on Intellectual Property, Competition and the Internet today, and we will 

begin with you, Ms. Pallante, welcome. 

TESTIMONY OF MARIA A. PALLANTE, ACTING REGISTER OF 

COPYRIGHTS, UNITED STATES COPYRIGHT OFFICE 

Ms. PALLANTE. Thank you, Mr. Chairman. I would like to express my gratitude to you and Ranking Member Watt for having 

this hearing today, and for elevating the importance of copyright 

protection in the context of online commerce. 

I also would like to say that my office greatly appreciates the 

support of Chairman Smith and Ranking Member Conyers on these 

issues. 

As you know, the U.S. Copyright Office is undergoing a leadership transition following the retirement of Marybeth Peters, and I 

want to take a moment to assure you that our staff is very busy 

carrying out the work of the office, including registering copyrights, 

eliminating the backlog, securing works for the Library of Congress 

and, perhaps most relevant for this hearing, studying and advising 

on domestic and international copyright issues. 

15 

Copyright promotes innovation, by extending the number of exclusive rights to creators, including the rights of reproduction, distribution, the right to make derivative works, and in some instances, the rights of public performance and public display. Our 

law grants these rights, but they are of little value to anyone if 

they cannot be effectively enforced. 

There is nothing redeeming about parasites or rogue sites that 

are entirely or substantially committed to infringement. They exploit copyrighted works with impunity, because they have little or 

no expectation of enforcement. And to be clear, we are talking 

about activity that does not constitute fair use and cannot qualify 

for any other defense available to good faith actors under the law. 

In support of the Subcommittee’s work on this issue, my staff 

and I have met with a broad spectrum of stakeholders, and we will 

continue to do this in the weeks ahead. The issues are complex but 

they present an opportunity for Congress to manage the relationship between technology and intellectual property as it has done 

many times before. 

Rogue sites can be located anywhere in the world and have a 

devastating effect on U.S. books, software, music, movies and television programming. Unlike traditional brick-and-mortar infringers, they can be quite difficult to identify and locate and, when pursued, may simply and quickly reappear under another domain 

name. 

Those based outside the United States lack sufficient ties to be 

compelled to appear before U.S. courts, or to allow the enforcement 

of a judgment against them. It can be difficult for rights holders, 

especially small rights holders, to litigate in foreign countries or to 

enforce a judgment abroad. 

So what can be done? Solutions that follow the money, for example, sales, subscriptions and advertising revenue, may be most successful. Payment processors like credit cards and PayPal are essential to the Web-based commerce we all enjoy, but rogue sites have 

no business using trusted companies to process profits. Likewise, 

many rogue sites display advertising, allowing them to run lucrative businesses using copyrighted works as the hook. 

Search engines are perhaps the most important, perhaps the 

most impressive player in the ecosystem. Without them, the Internet would be almost impossible to navigate. Unfortunately, both 

paid and unpaid search results routinely point people to rogue 

sites. 

One solution might be to give enforcement entities like Immigration and Customs Enforcement increased authority. For example, 

ICE could request a court order requiring the payment processors 

and ad networks to sever their financial ties to rogue actors. Congress might also review the role of domain registrars, registries 

and Internet service providers. 

A harder question for Congress is whether it is reasonable and 

viable to ask search engines to participate in a solution by suppressing search results that send users to rogue sites. 

Safeguards are important. Some have warned that some of the 

proposed remedies would risk fragmenting the Internet’s global domain name system. These assertions would require careful examination. It might also be helpful, however, if the dialogue that ConVerDate Aug 31 2005 11:30 Jan 02, 2013 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6601 H:\WORK\IP\COMBINE\65186.000 HJUD1 PsN: 65186
16 

gress seeks includes the counsel of experts who can objectively 

evaluate these relevant technical facts. 

Principles of due process and freedom of expression are also critical. Even the worst of the worst should receive notice as well as 

an opportunity to be heard, and relief should be narrowly tailored. 

However, injunctions have long been used in copyright cases, and 

we do not believe that an order that shuts down a web site dedicated to infringement would violate the First Amendment. 

Mr. Chairman, thank you again for inviting me to testify, and I 

await any questions that you or the Subcommittee may have. 

Mr. GOODLATTE. Thank you, Ms. Pallante. 

[The prepared statement of Ms. Pallante follows:] 

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Statement of 

Maria A. Pallante 

Acting Register of Copyrights 

Before the 

Subcommittee on Intellectual Property, Competition, and the Internet 

Committee on the Judiciary 

United States House of Representatives 

nih Congress, 1" Session 

March 14, 2011 

"Promoting Investment and Protecting Commerce Online: 

Legitimate Sites v. Parasites, Part I" 
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MAP-2.eps

Chainnan Goodlatte, Ranking Member Watt, and Members of the Subcommittee, I 

appreciate the opportunity to appear before you this afternoon to testify about the importance of 

providing incentives for legitimate commerce in the online environment by protecting against the 

parasites who compete with it. We also deeply appreciate the support of Chairman Smith and 

Ranking Member Conyers on these issues. 

As you know, the Copyright Office is the agency charged with administering the 

copyright law. Our duties include advising Congress and other government entities on matters of 

domestic and international copyright policy, including legislative proposals, participating in 

intergovernmental meetings and negotiations, and conducting studies, public inquiries, 

roundtables and rulemakings, as appropriate. We do not carry out enforcement activities, but are 

regularly consulted on copyright enforcement issues by Congress and the executive branch. 

Copyright law, which originates in the U.S. Constitution! and is coditled today in Title 17 

of the United States Code, promotes innovation by extending to owners of creative works a 

panoply of exclusive rights, including reproduction, distribution, the right to prepare derivative 

works, and, in certain instances, the right of public perfonnance and display. Though these 

rights are granted by law, they are of little value to the copyright owner if they cannot be 

meaningfully enforced 

The issues presented by parasites and so-called "rogue web sites " raise complex legal 

questions but also present an opportunity for Congress to manage the relationship between 

technology and intellectual property, as it has done many times before. In the course of our 

research on this issue, we have met with a variety of stakeholders in the Internet ecosystem and 

will continue to do so in the weeks ahead. We welcome the opportunity to assist Congress in its 

continued examination of the need for legislation in this area. While we recognize the signitlcant 

concerns related to trademark infringement and counterfeiting, my comments today focus on 

copyright law and practice. 

ROGUE WEBSTTES 

The Copyright Otlice believes the United States has a problem with a category of bad 

actors that build online businesses by infringing copyright and engaging in related illegal 

activity. Indeed, based on our discussions with a wide array of stakeholders, there appears to be 

widespread, although not universal, consensus on this point. 

The operators of rogue web sites exploit copyrighted works with impunity because, in 

part, there is no expectation of enforcement; they have no real fear of being brought to justice. 

With the global reach of the Internet, rogue web sites can be located anywhere in the world and 

still have a devastating etfect on the market for legitimate copyrighted works created by U. S. 

book authors, composers, recording artists, tllmmakers, software companies and other creators 

While many agree on the broad outlines of the problem, the precise contours remain 

elusive. There are a variety of views about how to frame the issue and how to develop effective 

I Art T, § R ("The Congress shall have POYVtT Tn promote the Progress of Science and llseful Arts, hy securing 

for limited Ti1l1L:s to Aulhors and TnVC~11ors the cxclusivL: Right to their n::spcctivc Vo,lrilings and Discov(;ri(;S -) 
19 


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solutions that respect our core American values of due process and free expression of ideas 

Moreover, there is a wide spectrum of piratical, counterfeiting, and otherwise infringing activity 

on the Internet, making a solution difficult. Many sites contain some infringing content 

alongside lawfully distributed materials, while others contain nothing but infringing content. 

Still other sites - most commonly referred to as "cyberlockers" - allow users to store and share 

digital files. Although many users employ cyberlockers for entirely lawful purposes, some have 

used them as a mechanism to distribute infringing content. 

We appreciate that the Subcommittee's stated focus is the proliferation of web sites built 

almost entirely on the business of making and/or distributing unauthorized materials. Such 

web sites violate trademark law, engage in unfair competition and, in the case of copyright law, 

undermine the exclusive rights of reproduction, distribution, and/or the public performance or 

display oflegitimate copyrighted materials. 

These "worst of the worst" flagrantly engage in illegal activities They offer consumers 

the sale, download, streaming of or linking to highly creative movies, music, books, and 

software. They may also offer devices, software and services used to circumvent access or copy 

controls in violation of Title 17. 

Many rogue website operators make money through direct transactions with Internet 

consumers. Tn some cases, they charge a fee for the purchase of a product or service. Tn other 

cases, they charge subscription fees. In either instance, they may utilize well-known payment 

processors (e.g. credit cards) to facilitate the actual exchange of money, or they may falsely state 

that they have relationships with such payment processors and then, when a consumer actually 

attempts to pay, redirect consumers to other, alternative payment methods that mayor may not 

be secure. Those rob'lle web sites that do not engage in direct financial transactions with 

customers may rely on online advertising placement to fund their illegal activities. 

Aside from being illegal, the existence of such web sites undermines the incentives and 

the ability of legitimate companies to engage in the production, sale, licensing and other 

dissemination of copyrighted content to compete in the marketplace. For good faith companies 

whose livelihoods are based on the creation and exploitation ofintellectual property, rogue 

web sites present a significant threat to their core business model. 

At the same time, unlike traditional brick-and-mortar infringers, rogue website operators 

can be extremely difficult to identify or locate, especially if they are based outside the United 

States. As a result, pursuing them can be hopelessly frustrating for copyright owners and law 

enforcement agencies alike, including because it is everybody's goal to target those whose 

primary purpose is to profit from intellectual property they do not own and have no reasonable 

basis for exploiting. (The circumstances clearly exceed a t1nding of "fair use" or other defenses 

available under the law.) Nevertheless, one of the key challenges for policy makers will be to 

detine carefully those bad actors who are the target of additional enforcement measures, so as to 

avoid inadvertently capturing good faith actors. 

2 
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MAP-4.eps

CURRENT LEGAL AND BUSINESS ENVIRONMENT 

As a backdrop for the issues, I will provide a brief overview of current U.S. law related to 

enforcement of copyright on the Internet. 

Civil Enforcement and the Digital Millennium Copyright Act: With respect to civil 

actions for online copyright infringement, the forms of relief provided by the Copyright Act in 

appropriate cases include actual damages, statutory damages, injunctive reliet~ costs and 

attorneys fees, and impoundment. The well-established doctrines of direct and secondary 

liability for copyright infringement have developed through case law. Copyright owners have a 

significant role in enforcing their interests using civil law mechanisms. Indeed, the vast majority 

of copyright enforcement cases are brought by copyright owners themselves, though fewer and 

fewer small copyright owners can atIord the costs oflitigation. In the context of rogue websites, 

the cause of action is typically direct infringement and the availability of damages and injunctive 

relief would vary with the specitic facts at hand. 

Additionally, in 1998 Congress passed the Digital Millennium Copyright Act (DMCA),' 

which was intended to foster the expansion of electronic commerce by reducing legal 

uncertainties of conducting business on the Internet while, at the same time, establishing 

mechanisms for combating online infringement. As part of the DMCA Section 512 of the 

Copyright Act provides certain "safe harbors" and limits the liability of online service providers 

for copyright infringement when engaging in certain types of activities. For example, Section 

SI2(a) provides Internet service providers (ISPs) with a limitation on liability for acting as "mere 

conduits" and providing transitory digital network communications, Section S12(c) provides 

online service providers that host material on their servers or networks at the direction of third 

parties with a limitation on liability, and Section SI2(d) provides search engines with a limitation 

on liability for providing information location tools. 

To be eligible for these limitations under the law, online service providers (other than 

mere conduits) must take certain responsible steps as participants in the Internet ecosystem, 

including responding to the notifications of copyright owners. In general, an on-line service 

provider may be notitied that it is providing access to infringing material. The copyright owner 

may request a "take-down," but must also supply to the provider a degree of factual data 

specitied in Section S12 (such as identifying the copyright at issue, the infringing work, and the 

owner's contact information, among other things). If the provider removes the infringing 

material, the copyright owner will not be able to bring an action against the provider for allowing 

access to the infringing material. A similar provision applies to search engines that direct users 

to infringing material. Section 512 thus provides a streamlined method for copyright owners to 

have infringing material taken down without tirst having to go to court. 

Criminal Enforcement Criminal copyright infringement is a federal cause of action. The 

Department of Justice often takes the lead on criminal copyright prosecutions, but several other 

U.S. government agencies have a role in investigations and law enforcement under various 

statutes that protect intellectual property rights, including copyright For example, the Federal 

See 17 (T S ( § 512, § 1201 el seq 
21 


MAP-5.eps

Bureau ofInvestigation (FBI), the Department of Homeland Security (DHS), Immigration and 

Customs Enforcement (ICE), Customs and Border Protection (CBP), and other agencies all work 

to enforce our copyright law." In recent months, ICE has used existing civil forfeitnre remedies 

available against criminal activity to seize the domain names of web sites involved in extensive 

infringing copyright and trademark activities.'! 

We note that part of what ICE is doing is providing a level of comfort to consumers with 

respect to the legitimate operation of the top-level domains most commonly used in the United 

States. That is, ICE cannot reach all the secondary or foreign domains that lure consumers to 

infringing content or unsafe medicine, but they can try to make the big three (.com, .org and .net) 

safe for the American public. Unfortunately, we understand (and are concerned) that once a 

domain name has been seized, it eventually retnrns to the pool of domains available to the public 

for registration unless it is purchased by the government. We question this result. We would 

also note that to the extent ICANN plans to increase the number of top-level domains available 

for commerce in the United States, as has recently been discussed, one consideration should be 

how the use of multiple domains would affect existing enforcement capabilities and objectives 

for customer protection. 

Takedowns and the Domain Name System CONS): One particular enforcement measure 

that is especially relevant in this context is the takedown or blocking of Internet domain names 

that are associated with rogue websites. As mentioned above, U.S. law enforcement has used 

existing civil forfeitnre provisions to obtain warrants to seize domain names, and the service of 

these warrants is usually aimed at a domain name registry, and, in some cases, ISPs. These 

entities also respond to orders or requests from courts and law enforcement to disable or block 

access to domain names and web sites that are used for criminal activity. DNS blocking targets 

the domain name itself; it does not block the Internet protocol (IP) address, which is comprised 

of a series of numbers that identifies a domain name on the Internet and that ultimately leads the 

user to the desired website. 

Current Voluntarv Practices: Voluntary practices to combat online copyright 

infringement have been developing in a number of areas. For instance, we understand that there 

is increasing cooperation between payment processors, which include credit card companies 

(e.g., MasterCard) and online payment services (e.g., PayPal), and rightsholders to combat online 

infringement of copyrighted works including films and music. In addition to cooperation in the 

3 A SUllllllaJ)' of n::ccnt efforts by la\,>, enforcement ill the intellectual propCTty arena has been compJied by the Office 

of the Intellectual Property Enforcement CoordinatoL \vhich recently issued its first Annual Report. Se€' Office of 

the Intellectual Property Enforcement Coordinator, 2010 Us. Intel/eductl Frape'r(v Enjorc:emC'nt CoordinalOr 

.'lnnl/aJ H.eport on Intellectual P1'operty "."nforcement, Feh. 2011, availahle at 

http://v .. '\YW . whitehouse. gov/sires/default/tilesl omblIPEClipec _annual JepOli _ feb20 11. pdf 

·1 Th~s~ adions led by ICe: have been conducted umiL:r 18 U.S.C. § 2323. The: PrioritiLing Resources and 

Organization for Intellectual PropeIty Act of 2008 strengthened existing fOlt'eiture provi5ions for use 1ll cases 

involving copyright infringement and trademark counterfeiting Pub. L. No 110-403, 122 Stat. 4256. ICE has 

IndIcated to LLS that appro:\lmalc1y 140 domaIn names havc been targeted In four opclatl0nal S\""'ceps slncc the 

summer of 20 1 O. According to a recent con'l/ersation with ICE, to date, not a single owner of the targeted domain 

names has contested these ~elzures 

4 
22 


MAP-6.eps

United States, we understand that there is progress on voluntary cooperation with law 

enforcement by payment processors and certain copyright owners in the United Kingdom.' 

We have also been told that some domain name system registrars voluntarily cooperate 

with individual rightsholder requests to block access to domain names that are associated with 

rogue websites because these registrars have broad tenns of service prohibiting use of domain 

names for various types of illegal activity, including intellectual property violations. We 

understand that at least one registrar is acti vely - and voluntarily - helping rightsholders when a 

domain name is being used in connection with infringing goods and services'" 

DEFICIENCIES IN CURRENT LEGAL AND BUSINESS ENVIRONMENT 

Tn analyzing the legal issues relevant to rogue web sites, it has become clear to us that 

web sites based outside the United States are especially problematic. In many cases, they lack 

suft'icient ties to the United States to be compelled to appear before US. courts and to allow the 

enforcement ofajudgment against them. The detrimental effect of this fact on US. creators and 

innovators is one of the major reasons we applaud the attention this Subcommittee is giving to 

this topic. 

Indeed, the pressing issue is how to tackle rogue websites based in foreign jurisdictions. 

Copyright owners have few options to pursue web sites that are based abroad and that do not take 

advantage of U.S.-based Internet registrars or registries" Finding methods to address the illegal 

activities offoreign web sites and non-US.-based actors who may not be subject to US. 

jurisdiction can be a challenge in many areas of US law enforcement, and the same challenge 

applies to civil efforts to combat copyright infringement. In this context, the question becomes 

how to get at the otI-shore rob'lle web sites. We have seen the "pop up" effect of Internet piracy, 

as operators of rogue websites whose domain names have been seized have simply moved to top-

-'; Earlier this month, the intenl[ltional recording industry announced a project ·with two payment processing 

companies and the City of London Police' s r:conomic Crime Directorate. 5,'ee Tf-PT press release, "Recording 

industry welcomes supporl by payment providers to ludJc illegal onlinL: sulc of unlicensed music." Murch L 2011, 

available al http://mvw.ifpi.comllcontentisection_news/20l10302.html. So far, the details of24 copyright 

infringing music sen-ices hah: hccn given lo thc London police 

(', We are also .T\vare ofvoluntmT efforts addressing Internet pharmacies and establishing standards for addressing 

trademark counterreiting on the Internet. On December 14, 2010, the Vi/hite House announced that American 

E>..pn.;:~~, eNom, GoDaddy, Googh;:, Ma~1L::r(~ard, Micro~on, Net worl Solution~, Neu~tar, PayPal, VISA and Yahoo! 

agreed to stali a non-profit group to educate the public and begin to take voluntary enforcement action against illegal 

Tntcmet phamlacics. See Officc of the Intcllectual Property Enforccment Coordinator, CounLo/eiL PharmaceuLical 

Inter-~-1gency If'orkmg CTroUP Report to the Vice Presuicllt of tIll! Umted States and to COllgress, March 2011, 

available al http://mvw.whitehouse.gov/sites/defaultlfiles/omb/IPEClPhanna_RepOltJinal.pdf. Voluntarv 

gLLidelines also e:\isL in Lhe lrademark cmmlcrfciling conle'd . .')'ee [nlemational Trauemark Association (lNTA). 

"Addressmg the Sale of Countelteits on the Internet:' Sept. 2009, available at 

http://\\'""i\'w.inta.org/AdvocacylDocumentsI1NTA%20nest%20Practlces%20for%20Addressing%20the%20Sale%20 

ol%20Counterfeits%20on%20the%20Tntemcl.pdf. Participating paym('~1l processors include American Express, 

Discover, MasterCard, PayPal, and VISA, \vorking \vith pmticipating Intemet providers eGay, Google and Yahoo! 

~ [nLLmcl registrars allow imliviuuals anu organi/alions lo register specillc domain names. By contrasl, [n\(,illcl 

registries do not have direct relationships with the registering person or organization, but instead manage all domain 

names \vithin a specific type of top-level domain name such as·· com·· or" net·· 
23 


MAP-7.eps

level domains administered in other countries (e.g., ".info" and ".ru"), which may serve as more 

"hospitable" jurisdictions that allow them to operate, usually with impunity, or at least untouched 

for a significant amount oftime 8 

Copyright law is territorial and copyright owners must manage signitlcantjurisdictional 

questions when attempting to pursue infringement actions against foreign actors. Copyright 

owners could attempt to bring suit in the United States for copyright infringement by a foreign 

website if there are sumcient contacts (e.g., significant advertising and sales to US. consumers) 

but it can be dimcult to litigate against uncooperative foreign entities and/or to enforce a 

judgment abroad. The intersection of U S. and foreign law is an appropriate topic for Congress 

to consider, including how these jurisdictional issues affect the remedies in successful 

infringement cases. 

We do believe that enhanced international cooperation can playa positive role, that is, 

international cooperation both by law enforcement authorities and by private sector groups and 

Tnternet intermediaries. However, while voluntary efforts should be pursued whenever possible, 

the continued evidence of widespread global Internet copyright infringement suggests that 

cooperation alone cannot be the only solution to this complex problem. Cooperation on an 

international scale is at best a gradual process and to date has not stopped these websites from 

continuing to wreak havoc on the marketplace of legitimate commerce 

Finally, we note that, although copyright owners may have more options to pursue 

domestic rather than foreign rogue web sites, domestic sites also continue to pose challenges. 

The parasites who operate rogue websites in the United States often do not provide sufficient 

contact information to allow a copyright owner to identify or locate them and can create 

obstacles to moving forward with potential litigation. Additionally, even if a copyright owner 

targets a domestic website, there may still be the same problem as faced abroad that the website 

may simply - and quickly - reappear at another domain name 

MOVING FORWARD 

The Copyright Otlice believes that copyright enforcement against the operators of rogue 

web sites could be enhanced and improved with mechanisms that "follow the money" within the 

Internet ecosystem. These parasites could be cut off from payment mechanisms and advertising 

revenues in the United States; this could combat their very existence, or at least substantially 

decrease their impact on the market for legitimate copyrighted content. 

In our view rogue web sites are a problem that will require mutual cooperation of many 

stakeholders and Congress may want to consider whether all who benefit from a healthy online 

ecosystem should contribute to a solution. For example, TSPs playa critical role in providing 

Internet access, and correspondingly the means to interrupt access, to rogue web sites. Domain 

R Por example, ne"'iVS repOlts indicate that the Spanish "'ivebsite Rojadirecta.colll, a domain name that ,vas selzed by 

ICE in its rebmary 1,2011 seizure, quickly establlshed additional domains served by registries in other countries 

(c.g., Spain, Montenegro, [mlia), anu conlillLLcs its opcralions. S'ee, c.g, Trent Noun:au, US j)O.! and fek' seize 

additional domains, TG Daily, Feb. 2,2011, available at http://ww.v.tgdD.ily.comlbusine~s-and-law-featllres/53884-

us-dnj -and-ice-sei 7e-additi nnal-domains 

6 
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MAP-8.eps

name registries and registrars are able to block domain names. Search engines point users to 

rogue web sites, but technology may exist that would allow them to block such sites from 

appearing in search results, much as search engines have eliminated child pornography from 

their results. 

Payment Processors: Payment processors are credit card companies and payment 

intermediaries such as PayPal. With respect to legitimate commerce, they enable consumers and 

businesses to conduct transactions online. Without them, the Internet would not be the robust 

business enterprise it is today in the American economy 

Payment processors are structured in a variety of ways. Some have direct contractual 

relationships with consumers, others have relationships with merchants and banks, and yet others 

have mixed arrangements. They have tenns of use that can be helpful in handling allegations of 

copyright infringement. At the same time, many rogue websites allow Internet consumers to use 

traditional credit cards, debit cards and other financial transaction services to purchase or access 

infringing materials as part of single transactions or subscriptions. Even those websites that do 

not rely on financial transactions can benefit from payment processors' goodwill by displaying 

the logos of well-known payment networks in an eiTort to lend credibility to the site by creating a 

false sense of authenticity. 

Congress could grant enforcement entities such as ICE the explicit authority to request a 

court order requiring payment processors to stop providing these services for the website in 

question to consumers within the United States. If rogue web sites are unable to use standard 

payment methods, Internet users may be less willing to use less familiar alternative payment 

structures, and innocent consumers might be suspicious of the absence of standard payment 

methods, thereby harming the iinancial viability of the sites. 

Advertising Networks Many rogue websites display advertising, allowing them to run 

lucrative businesses by providing content without a copyright owner's permission. Generally, 

advertising networks place advertisements on websites for merchants wishing to advertise their 

goods and services. Such networks typically place their clients' advertising on web sites that may 

be relevant to the clients' goods and services or that are popular with the clients' target 

demographic. Some networks, however, do not specifically control where all of the 

advertisements appear and instead subcontract at least some of their placement services to other 

advertising brokers that, in tum, place advertisements on various websites. 

Unfortunately, the multi-layered structure ofTntemet advertising placement can make it 

difficult to determine which entity is ultimately responsible for placing an advertisement on a 

speciiic website. At this point it is unclear to us whether all the advertising networks involved in 

the placement of a particular advertisement would necessarily have either knowledge that an 

advertisement was placed on an infringing site or the ability to prevent the advertisement's 

placement on that site. 

Legislation that could prevent advertising networks from placing advertisements on rogue 

websites might reduce the protitability of these sites and deter further copyright infringement. 

Once again, legislation could give enforcement entities such as ICE explicit authority to request 

7 
25 


MAP-9.eps

a court order requiring U.S.-based advertising networks to stop placing advertisements on the 

alleged rob'lle website in question. 

Other Parties in the Internet Ecosystem: ISPs playa critical role in providing access to 

and delivery ofTnternet-based services to consumers. Some stakeholders propose to provide 

enforcement authorities such as ICE with the ability to request court orders directing ISPs to 

block the domain names or Internet protocol addresses of specified foreign-based rob'lle web sites 

for all U.S.-based customers. We have also heard concerns about the technical feasibility of 

implementing blocking orders, especially at the subdomain or IP address levels, as well as the 

potential costs that ISPs might incur if a large volume of orders were presented to them for 

action. We believe that these issues require further investigation and analysis. 

We are aware of several other countries that have issued judicial orders requiring ISPs in 

their jurisdictions to block national access to specific foreign websites that seem to fall within the 

rogue website concept here. For example, actions have been taken in Italy, Ireland and Denmark 

in an effort to block the website The Pirate Bay from those nations' citizens'" 

When attempting to seize or take down domain names to block rob'lle websites, law 

enforcement agencies and copyright owners often work with registrars and registries because 

they can often control where a request for a domain name from an Internet user is directed10 We 

are aware, however, of the concerns expressed by some that domain name server blocking, 

including that used in the recent ICE civil forfeiture proceedings and other non-copyright law 

enforcement activities, targets only the domain name and does not block the IP address, thus 

allowing persistent Internet users to find the rogue website using the TP address. This 

Subcommittee might want to give further consideration to methods to address this concern either 

at the registrar and registry level or through ISPs. 

9 The Italian Supreme Court tll December 2009 Tuled that TSPs could he ohliged to cut access to the then-S\vedishhased The Pir<Jtc Bay (IBP) dOlll<Jin. See Inlcmatioll<JI Fcdc[<Jlion of the Phonographic Indusll}' (l.b'Pl), Italy's 

,)'upreme Court explaifls ruling that //)Ts should block The Pirate Ba}), Jan. 8, 2010, available at 

htLp:!/\vWW .ifpi.()rg/c(mtenUsccLi()11_11C\vs/20 [00 [OS.hLml. Tn carll' FchruaT)' 20 [0, Italian pn)SCcLLtors ()rdcn::d all 

national access providers to block TBP. See Block The FinIte jJ(~y, italianl,')']>s ordered, .reb. 10,2010, available at 

http://w\\.\v.p2pnet.net/story/35342. Action has also been taken action against TI3P in Ireland and Denmark. One 

major Irish ISP. Eircom. blocked access to TPI3 in July 2009 (using both DNS and IP address blocking). See Austin 

ModinL', tJrcom to block Pirate lJay, The Regisler. Feh. 23, 2010. available at 

http://\vv,,'w.theregister.co.uk/2009/02123/inlla _ demands_irish _isps _ block_ access _to -piracy _sites/. In Demnm'k, the 

recording industry ohtained an injunction against an TSP (TeIc2, noyv T clenor) requiring it to hlock access to TPn; 

this was confimled on appeal, and, in May 2010 the Supreme COUl1 upheld the injunction. See .european Digital 

RIghts (EDRI), Dunish supre'me' Gouri upholds injunciion io blod ihe PiT'aie jJa}', June 2, 2010, available' ai 

htlp:!!\vWW .edri.org!edrigram!nLLmherS.ll!piralehay -denmarh.-sLLpreme-eOLLrt. 'J'he C()url dld n()t require IP address 

blocking, only blocking of the site's domain and sub-domains (DNS blocking) 

11) W'hen a consumer lries to reach a website associahxl \\'ith a domain name. the consumcr''j lSP identifies and 

contacts the relevant registry' associated \",ith the requested domain name, such as VeriSign for ".com" top-level 

domain names, because the registry controls the root name servers that 'will direct Intenlet traffic to the conect 

wehsite. The regislT)', in tum, direcls the user to an aUlhorilati\e uomain name scncr, which, in most 

circllmstances, is the regIstrar of the specific domain name. The registrm- then sends the Intemet user to the content 

identified hy its cllstomer, the domain name registrant, which is housed on a specific server, identified hy an IF 

<Jddress connected with <J particular domain name (or group of dom<Jin n<ill1cs) 
26 


MAP-10.eps

Search engines are perhaps the most important player in the on-line ecosystem. Without 

them, the Internet would be un-navigable. Unfortunately, search engines routinely point people 

to rogue websites, including in situations where the customer is looking for a legitimate site. In 

fact, sometimes the illegitimate sites appear much higher in search results, displacing authorized 

sources of copyrighted content. A legitimate question is whether search engines should be 

involved in solving the rogue website dilemma. For example, is it reasonable and viable for 

search engines to suppress search results that direct Internet users to rob'1Ie web sites? 

The Copyright Office is very active in the realm of international intellectual property 

policy. In discussions and efforts with other countries, the United States seeks to be a leader in 

the development of standards and solutions. Moreover, our rightsholders are beneficiaries of the 

work done by the U.S. government globally. It would befit the leadership role of the United 

States to address the bad actors who undermine legitimate commerce on the Internet. 

DUE PROCESS AND OTHER SAFEGUARDS 

The Copyright Office strongly agrees with those who have stressed due process and 

related concerns in the context of legislating a solution to rogue web sites. First, due process is a 

bedrock foundation of our nation's legal system, even for those who violate the law. Any 

remedy that impedes or obstructs access to a website must be consistent with this core American 

principle. The domain owner should receive notice as well as an opportunity to be heard. 

Due process concerns are all the more pertinent in light of possible First Amendment 

implications of shutting down web sites on the Internet. Care must be taken to ensure that 

noninfringing expression is not unnecessarily suppressed and that the relief is effective but 

narrowly tailored. This said, we do not believe that an order that shuts down web sites devoted to 

infringing activity would violate the First Amendment (nor would it constitute "censorship"). 

We note that injunctions have long been used in copyright cases and courts have not held them to 

be inconsistent with free expression. Indeed, copyright itselfis part of the construct offree 

expression in the United States. The exclusive rights of copyright allow authors and their 

licensees to disseminate creative expression to the public and provide incentives for them to 

contribute to important public discussions and the economy. Fair use and other exceptions under 

the law provide good faith actors with the means to make limited use of copyrighted works 

without permission in certain instances, such as using brief excerpts of works necessary for the 

dissemination of news. 

Second, remedies for the rogue website problem cannot unnecessarily jeopardize the 

efficient operation of the Internet. Some Internet engineers have warned that some of the 

proposed remedies would "risk fragmenting the Internet's global domain name system (DNS) . 

and seriously harm the credibility of the United States in its role as a steward of key Internet 

infrastructure"" Such assertions require careful examination and the hearing of the 

Subcommittee today is a very helpful means of doing so. It might also be helpful to the dialogue 

among stakeholders if Congress were to seek the counsel of experts who can objectively evaluate 

technical facts as they relate to the rogue website problem. The Copyright Office believes that 

II Open T ,etter from Tntemet Engineers to the Senate ,Tudicimy Committee (Sept 2R_ 20 I 0) 

hUp:!!v.,/ww .clTorg/dL:c1Jlinl.sI20 1 O/09/opL:n-h.:ltc-r 

9 
27 

Mr. GOODLATTE. Mr. Sohn, welcome. 

TESTIMONY OF DAVID SOHN, SENIOR POLICY COUNSEL, 

CENTER FOR DEMOCRACY AND TECHNOLOGY (CDT) 

Mr. SOHN. Thank you, Chairman Goodlatte, Ranking Member 

Watt, Members of the Subcommittee. On behalf of the Center for 


MAP-11.eps
28 

Democracy and Technology, thank you for the opportunity to participate in today’s hearing. 

I would like to say at the outset that CDT recognizes the problem 

posed by online infringement. Large-scale copyright infringement 

affects not just rights holders, but also the growth of new media, 

e-commerce and online expression, all of which are values that 

CDT works hard to promote. 

The main point of my statement today, however, is to emphasize 

that the tactics chosen to fight infringement matter a great deal. 

Some tactics might be superficially attractive, but would not work 

very well in practice. Some tactics could do a lot of collateral damage, for example, by inadvertently impairing lawful online speech, 

lawful online communications tools, or by undermining cybersecurity. 

And some tactics, particularly the domain name focused tactics 

that I discuss at length in my written testimony, suffer from both 

problems. They won’t have much impact on infringement, and they 

risk doing significant inadvertent harm. 

What I would like to do with the rest of my time is briefly list 

some general principles that Congress should keep in mind as it 

considers policy approaches in this area, and then turn to the specific question of domain name blocking and domain name seizures. 

First in general. One, enforcement tactics should keep the targeted focus on the true bad actors and be careful to avoid impact 

on lawful businesses and speech. Doing that requires a narrow 

focus on purposeful wrongdoers, and it requires sufficient due process to avoid mistakes. 

Two, proposals for a new law in this area really, as in any area, 

should be subject to careful cost-benefit analysis. If there are policies that offer small or ephermal gains at high cost, that obviously 

doesn’t make much sense. 

And, three, when the infringers are overseas, cross-border cooperation is essential to stop the illegal activity at its source, and 

shut down the wrongdoers for good. Congress should not assume 

that the best approach to foreign infringement is necessarily a new 

domestic law. 

Now, let me turn to the specific question of going after infringement websites by blocking or seizing their domain names. As I 

think the Members of this Subcommittee know well, the Senate Judiciary Committee last year considered legislation to expand this 

practice, by, among other things, asking Internet service providers 

to block domain name lookup requests. 

The first thing to understand about this tactic is that it does not 

actually remove bad sites from the Internet. Nothing gets shut 

down. The servers and all the infringing content they contain are 

still there online. 

If the domain name has been seized, the site operator can quickly hop to a new one, this time using a registrar outside U.S. jurisdiction. And as for the users, my testimony lists several completely 

easy ways they could reach a site whose name has been blocked or 

changed. The ways aren’t highly technical, but for those users to 

whom it still seems complicated, software tools would quickly 

spring up to automate the process. 

29 

So the bottom line is that domain name tactics will have rapidly 

diminishing returns. The more common the interference with the 

domain name system, the more these work-arounds will go viral, 

and the more they will become routine. And I think at the end of 

the day, any actual impact on infringement will be fleeting at best. 

Meanwhile, domain name tactics risk collateral damage in a 

number of areas. First, the tactics will have some impact on lawful 

speech. It is important to realize that targeting a domain name affects all the content at that domain. It is different than, for example, the DMCA notice and take-down process where only the specific infringing material is targeted. 

Plus there are many domains that are shared by literally thousands of individual sites, and we have already seen concrete examples of mistakes and overbreadth because of this. In February, ICE 

mistakenly seized a domain with 84,000 sub-domain registrations. 

The result was that numerous, innocent people, personal bloggers, 

small businesses and so forth, had their websites replaced with a 

banner that read, essentially, this site has been seized due to child 

pornography. Needless to say, that is a very damaging allegation 

to have made against one. 

Second, there are serious technical and cybersecurity concerns. 

For example domain name blocking is technically incompatible 

with DNSSEC, which is a standard for protecting the security of 

the domain name system that has been a decade in the making 

and is just rolling out. In addition, the technologies that users—or, 

excuse me, the techniques that users would employ to circumvent 

blocking would create new cybersecurity risks as well. 

Finally, targeting domain names of purely foreign sites would encourage a dangerous jurisdictional scrum internationally with each 

country potentially trying to use the domain name system to enforce domestic law against foreign sites so that Congress has to 

consider the international implications and the precedent it would 

be setting. 

For all of these reasons, I believe that codification and widespread use of domain name focused tactics would fail any serious 

cost-benefit analysis, and I would urge Congress not to go down 

that particular path. 

Thanks for the opportunity to appear here today. 

Mr. GOODLATTE. Thank you, Mr. Sohn. 

[The prepared statement of Mr. Sohn follows:] 

30 


Sohn-1.eps

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Statement 01 David Sohn 

Senior Polity Counsel 

Cenle( Ia' DeIroaiq & Teclmology 

Before Ihe House 01 Represenlalives Committee on Ihe Judiciary 

Subcommittee on Intellectual Property. Compeutlon, and the Internet _00 

1'romoIing IIl'oI&5UIleIll ¥rei ProIedog Conmen:e 0nIi1'lll: 

l~SilH P.ns~s. P¥li' 

Mafth I~, lOt I 
31 


Sohn-2.eps

Statement of David Sohn, Genter for Democracy & Technology 

On behalf of the Center for Democracy & Technology, thank you for the opportunity to 

participate in this hearing on websites that engage in rampant intellectual property 

infringement. CDT is a non-profit, public interest organization dedicated to preserving 

and promoting openness, innovation, and freedom on the decentralized Internet. 

CDT supports the goal of reducing online infringement. Large-scale copyright 

infringement undermines First Amendment values in promoting expression and 

threatens the growth of new media and e-commerce. With respect to the particular 

focus of this hearing, CDT recognizes that there are websites whose main purpose and 

activity is to enable and promote infringement. These sites are true "bad actors" and 

they deserve to be the target of law enforcement. 

CDT believes, however, that the specific means chosen to address infringement matter a 

great deal. Some tactics may be attractive from a copyright protection perspective, but 

would carry significant costs to important values such as innovation and free speech. 

CDT urges members of this Subcommittee to be aware of this risk and to carefully avoid 

tactics that would impair lawful Internet-based media and communications tools that are 

of growing value to consumers, the economy, and society in general. 

After a brief note regarding the scope of the problem, this testimony will offer several 

principles for evaluating proposed policy approaches. It will then address the significant 

concerns raised by a specific enforcement tactic that has received considerable attention 

in recent months: the idea of combating allegedly infringing websites by ordering the 

seizure or blocking of their domain names. In short, CDT believes that legislation 

targeting domain names would be ineffective at achieving the goal of reducing 

infringement. At the same time, a domain-name approach would threaten unintended 

collateral damage in a number of areas, including suppressing lawful speech; 

exacerbating cybersecurity risks; and encouraging a dangerous global scrum in which 

each country tries to use the domain name system to assert domestic jurisdiction over 

foreign websites. Congress should not pursue such an approach. 

I. The Problem of Websites Dedicated to Infringement 

CDT recognizes the problem of websites that seek to profit by distributing copyrighted 

material without authorization and without paying the lawful rightsholders. Indeed, CDT 

has sought to focus attention on websites that masquerade as lawful online music stores 

when in fact they have not secured any distribution rights. In 2005, CDT filed a 

complaint at the Federal Trade Commission concerning two websites that charged 

subscription fees for what they claimed was "100% legal" access to music and video 

downloads, when in truth the sites merely provided gateways to file-sharing networks on 

which infringement was common.' The FTC filed suit against the operator of one of the 

1 Complaint and request for Investigation, Injunction, and Other Relief before the Federal Trade CommiSSion 

In the Matter of Mp3DownloadCity.com and MyMusiclnc.com, March 8, 2005, 

http://cdt.org/copyrightl20050308complaint.pdf 
32 


Sohn-3.eps

sites and ultimately won a court injunction and settlement,2 In 2007 and 2008, COT, with 

the intent of alerting potential users, compiled a "Music Download Warning List" of 47 

websites that were falsely posing as legitimate music stores. 3 

Quantifying the problem, however, is exceedingly difficult. Congress should be 

especially cautious about statistics and studies that purport to measure the problem in 

dollars and cents. Last year, the General Accounting Office released a report analyzing 

efforts to quantify the economic effects of counterfeit and pirated goods' GAO found 

that three widely cited U.S. government estimates of economic losses "cannot be 

substantiated" and that it "is difficult, if not impossible, to quantify the economy-wide 

impacts." To be sure, the report observed that research suggests "the problem is 

sizeable." But methodologies for estimating the economic impact all have limitations, 

and results are highly sensitive to assumptions. 

I would add two additional caveats. First, parties commissioning studies often have 

vested interests in the results. And second, it is important to remember that the Internet 

and digital technologies can be highly disruptive of traditional business models for 

reasons having nothing to do with infringement. For example, the rise of the Internet 

may have enabled increased infringement of music recordings, but it also has enabled a 

shift to selling songs individually, new marketplace options like pod casts and music 

streaming services, and changing patterns in the way people consume and enjoy music 

Although these changes may have harmed some incumbent music providers, the 

changes were the result of innovation and competition. With so much in flux, there is no 

easy, controlled experiment to isolate the impact of infringement. 

Therefore, while there is no question that the infringement problem is real and 

significant, Congress should not place too much weight on statistics purporting to 

quantify its overall economic impact The GAO report suggests that such statistics are 

generally less than reliable 

II. Principles for Evaluating Policy Approaches to Fighting Infringement 

In developing and implementing policies designed to fight infringement-focused 

websites, COT believes the Federal Government should take care to observe the 

following principles. 

A. Enforcement efforts should narrowly target true "bad actors." Policies should take care 

to avoid inadvertent impact on lawful businesses, individuals, and speech. 

Enforcement policies should emphasize pursuing and punishing those persons and 

entities engaged in purposeful, infringing conduct on a substantial scale. Focusing 

specifically on such "bad actors" avoids inadvertent impact on legitimate business, 

legitimate free expression, and legitimate technologies. 

2 Federal Trade Commission, "File Sharing Operator Settles FTC Charges," Press Release, May 25,2006, 

http://www.ftc.gov/opa/2006/0S/p2p.shtm 

:] COT, "MuSIC Download Warning List," last updated July 2008, http://cdtorg/copyrightlwarninglist 

4 General Accounting Office, Observations on Efforts to Quantify the Economic Effects of Counterfeit and 

Pirated Goods, April 2010, http://www.gao gov/new.items/d1 0423. pdf 

cdt:WW'Cdt.o<g 
33 


Sohn-4.eps

By contrast, policies that target providers of multipurpose technologies, services, and 

platforms will risk significant overbreadth. Laws that affect whether and how such 

platforms operate can carry major consequences for the large body of lawful speech and 

other activity that the platforms support. Similarly, policymakers should be sensitive to 

the fact that there are many disputed areas in copyright; mainstream technologies that 

have been challenged in major copyright litigation over the years include VCRs, mp3 

players, printer cartridges, video-sharing websites, online auction sites, and many more.' 

Any new policies aimed at improving enforcement of current law should be designed to 

target clear-cut cases and should expressly steer clear of legal grey areas 

In addition, policies aimed at "bad actors" should provide sufficient procedural 

safeguards to protect against the risk of mistakes. The Internet has become a crucial 

medium for free expression, entitled to the highest level of First Amendment protection'" 

Accidental, overaggressive, or technologically unsophisticated application of tough new 

policies could impair lawful speech in a variety ways, from stifling individual websites to 

undermining online platforms that enable speech by users. Providing sufficient due 

process can help ensure that measures meant for true piracy rings are not brought to 

bear against the wrong parties. By contrast, policies that would give law enforcement 

authorities great discretion in a one-sided process create fertile ground for mistakes and 

inadvertent overbreadth 

B. New policy proposals should be subject to rigorous cost-benefit analysis. There needs 

to be a sober assessment of both how effective a policy is likely to be and what collateral 

impact it may cause. 

Concern about online infringement is understandably high But that does not mean that 

any and all proposals for reducing infringement are worthy of government endorsement. 

As in any area of policy, proposals for new anti-infringement measures must be subject 

to rigorous cost-benefit analysis, asking both (i) how effective a proposed policy is likely 

to be, and (ii) what negative collateral impact it may entail 

Policymakers should be particularly alert to the risk that, where a measure provides 

benefits to one industry or group and imposes costs on another industry or group, it can 

be in the interest of the beneficiaries (likely the rightsholders) to lobby strongly even for a 

measure that offers relatively minor private gains at high social cost. Thus, careful, 

independent consideration and balancing of the true costs and benefits of suggested 

measures is essential. If a particular proposal's reduction in online infringement is likely 

to be of marginal size or fleeting duration (because, for example, it can be easily evaded) 

and the proposal would impose significant burdens on (for example) legitimate 

innovators or online free expression, then the proposal should be rejected 

5 For a longer list, see COT, Comments to the Department of Commerce Internet Policy Task Force's Inquiry 

on Copyright, Creativity, and Innovation In the Internet Economy, November 19, 2010, 

http://cdt.org/flles/pdfs/CDT%20Comments%20to%20NTIA%20Copynght%20Task%20Force.pdf,at 2-4 

6 Reno v American Civil Uberties Union, 521 U.S. 844 (1997) 

cdt:WW'Cdt.o<g 
34 


Sohn-5.eps

C. Addressing foreign infringement activity requires international cooperation. 

Where website operators and other participants in online infringement are based outside 

the United States. unilateral domestic law enforcement tactics will be limited in their 

effectiveness. Cross-border problems require cross-border solutions. 

Cooperating with foreign law enforcement may carry its own challenges. But only 

cooperative approaches have the potential to stop infringement at its source - to hold 

wrongdoers personally accountable and to shut down their operations for good. As the 

recent annual report of the Intellectual Property Enforcement Coordinator observes, 

"Intellectual property crime knows no borders and effective efforts to combat 

infringement must involve cooperative law enforcement efforts with foreign 

governments.,,7 The report goes on to detail law enforcement cooperation efforts with 

Mexico, Latvia, South Korea, and even China. In addition, the final proposed text of the 

Anti-Counterteiting Trade Agreement (ACTA) includes a chapter on international 

cooperation. Congress should not assume that foreign infringement activity is best 

addressed through additional domestic law. 

D. Enforcement alone cannot offer a satisfactory solution to the problem of online 

infringement. 

A full strategy for reducing online infringement requires more than just the "stick" of law 

enforcement. Just as essential is the "carrot" of compelling legal offerings. One of the 

best defenses against infringement sites is the continued proliferation of lawful online 

distribution options that create convenient, easy-to-use ways for consumers to get the 

content they want in the form that they want it. When consumers have attractive legal 

options for satisfying their demand, the incentive to rely on illegal sources is greatly 

reduced. 

With this in mind, policymakers should look for ways to encourage the legal marketplace 

For example, about five years ago this subcommittee held hearings and debated 

legislation concerning possible reform and streamlining of the music licensing provisions 

in Section 115 of the Copyright Act.' Ensuring that the structure of current licensing 

regimes encourages the building of attractive legal services, rather than serving as an 

obstacle, would help reduce infringement. 

Public education is another important and underappreciated component of policy in this 

area. Modern information technology is here to stay and will continue to put powerful 

digital tools in the hands of the public. Inevitably, public norms and attitudes will playa 

major role in shaping how people choose to use the information-age tools at their 

disposal. Consumers need to understand that using these tools to engage in 

infringement is both illegal and wrong. But copyright law can be a highly technical area, 

and consumers' initial assumptions about what is and is not permitted are often not 

7 2010 u.s. Intellectual Property Enforcement Coordinator Annual Report on Intellectual Property 

Enforcement, February 2011, www.whitehouse.qov/sites/defaultl .IlPEC/ipec annual report feb2011.pdf, 

at 20 

8 COT Policy Post, "MUSIC Rights Regime Needs Updating, Should Embrace New Technologies," November 

2, 2007, http IIcdt.org/pollcy/music-rights-regime-needs-updatlng-should-embrace-new-technologies 
35 


Sohn-6.eps

accurate. If the goal is to have a long-term impact on the scope of the infringement 

problem, policymakers should make public education a key part of the discussion. 

III. Policy Concerns with Tactics that Target Domain Names 

In recent months, there has been considerable focus on using the domain name system 

(DNS) to go after websites associated with infringement. Since late June 2010, 

Immigration and Customs Enforcement (ICE) and the Department of Justice have 

executed seizure warrants for over 100 domains as part of "Operation In Our Sites."g S. 

3804, the "Combating Online Infringement and Counterfeits Act" from the 111 Ih 

Congress, would have expanded the practice of such seizures, giving the Attorney 

General the ability to bring in rem actions against both domestic and foreign domain 

names and to compel intermediaries, including Internet service providers (ISPs), to seize 

or block the domain. lo 

COT has significant concerns about both the low effectiveness and the high collateral 

impacts of this approach to fighting infringement. In light of these concerns, we believe 

that a policy that codifies and encourages large-scale reliance on domain names as an 

enforcement mechanism would fail any cost-benefit test. For the reasons set out below, 

we would strongly urge Congress not to proceed with legislation proposing domain-name 

focused remedies 

A. Ineffectiveness 

Domain-name seizure and blocking can be easily circumvented, and thus will have little 

ultimate effect on online infringement. The DNS performs a relatively simple function 

translating text URLs (like www.cdt.ora) into machine-readable IP addresses (like 

72.32.6.120). This function is wholly unrelated to the content available at any given site 

Importantly, neither seizing nor blocking a website's domain name removes the site from 

the Internet. The servers are still connected and users can still reach the site, including 

any infringing content 

There are a number of ways a targeted site may still be reached. First, the site's 

operator could simply register a new domain name for the site. This is both easy and 

likely. For example, most of the sports-streaming sites connected to ten domains ICE 

seized in February quickly reappeared and are easily located at new domains. 

Second, the site's operators could simply publicize its IP address, which users could 

then bookmark in lieu of saving or remembering the domain name. This is exactly what 

happened when the provider of Wikileaks's DNS service provider terminated the 

9 1eE, "'Operation In Our Sites' targets Internet movie pirates: ICE, Manhattan U.S. Attorney seize multiple 

Web sites for criminal copyright violations," Press Release, June 30, 2010, 

http://www.IC8.gov/news/releases/1006/1 00630losangeles htm 

10 Combating Online Infringement and Counterfeits Act, S. 3804, 111th Congress (2010) 
36 


Sohn-7.eps

controversial site's account in December 2010; the IP address was immediately and 

widely available." 

Third, a site's operators could distribute a small browser plug-in or other piece of 

software to allow users to retrieve the IP addresses of the operators' servers. Such 

simple tools would make the process of following a site around the web virtually 

automatic. 

Fourth, in the case of blocking by ISPs, users could easily switch DNS-Iookup providers 

to avoid blocking orders. Since most operating systems come with DNS server 

functionality built in, savvy users could set up local DNS resolvers on their own 

computers, thus avoiding any DNS servers that have been ordered to block. In addition, 

third-party public DNS servers are widely available, and more would inevitably spring up 

outside the United States to avoid being subject to blocking orders. For Internet users, 

pointing DNS requests to these unfiltered servers would be simply a matter of updating a 

single parameter in their operating systems' Internet settings. Users who want to 

engage in infringement will thus easily be able to route their traffic around DNS providers 

that enforce blocking orders. For users to whom this seems complicated, software tools 

could easily automate the process. 

All of these circumvention techniques are likely to occur if domain-name seizure and 

blocking become widespread. Infringement sites have a highly motivated and relatively 

savvy user base, and word will spread quickly as to how best to circumvent any 

blocking. This means that any impact on infringement from seizing or blocking domain 

names is likely to be ephemeral at best 

In short, the main impact of domain-name seizure and blocking would be to drive 

website operators to domains administered by non-U.S. registrars and registries and 

website users to alternative (but equally easy) Internet navigation methods. The more 

common the interference with the domain name system, the more the workarounds 

would become routine. The workarounds themselves are trivial and would quickly go 

viral, rendering the domain-name approach almost entirely ineffective. 

B, Overbreadth: impact on lawful speech 

The seizure and blocking of domain names would almost certainly affect lawful speech, 

for several reasons. 

First, these methods target entire domains, which may contain a mix of lawful and 

unlawful content, including non-Web content like email or instant messaging 

connections. This stands in sharp contrast to the notice-and-takedown provisions of the 

DMCA. Under the DMCA process, specific infringing material is identified. That 

material, and only that material, is then targeted for takedown. Enforcement actions 

targeting a domain name itself would not be so narrowly targeted; they would affect 

any1hing and every1hing associated with that domain 

11 Rob Pegoraro, "WikiLeaks sinks, resurfaces (repeat as necessary)," Washington Post Faster Forward 

blog, December 3, 2010, 

http://voices.washingtonpost.comlfasterforward!201 O/12/wiklleaks sinks resurfaces rep.html 
37 


Sohn-8.eps

The risk of impairing access to lawful content might be mitigated if there were strong 

guarantees that only pure infringement hubs would be targeted. For that purpose, a 

tightly focused definition of the "bad actor" websites would be essential. Last year's 

Senate bill, S.3804, failed to ensure such a narrow focus. Although that bill used the 

well-intended phrase "dedicated to infringing activities," its definition of that term was 

broad enough to encompass sites that, far from being "dedicated" to infringement, are 

actually multipurpose sites featuring a wide variety of content. 

The risk of sweeping in non-infringing content is exacerbated if seizure or blocking 

orders are issued without a full adversarial hearing. When law enforcement makes its 

case unopposed and a domain name owner has no opportunity to defend itself, 

mitigating factors and overbreadth issues may not come to light before the name is 

seized or blocked. In a one-sided process, the risk of mistakes or overaggressive action 

is high. 

This risk is evident from news reports about several of the recent domain name seizures 

conducted by ICE pursuant to the civil forfeiture provisions of criminal copyright law. 

Several of the domain names seized in November were for music blogs which contained 

links to copyrighted songs. The operators of some of those blogs claim that the songs 

were supplied by the record labels themselves, for promotional purposes." To be clear, 

COT expresses no opinion about whether these blogs were authorized to post links to 

these songs or whether that activity was infringing. But there are significant questions 

about whether these blogs were such "bad actors" that their entire domain names should 

be seized, and it seems under ICE's seizure process these questions were not fully 

considered. In addition, seizing the domain name affected not just the links to potentially 

infringing songs, but all of the commentary on the blogs. 

In another example, in February ICE seized domain names associated with a Spanish 

site that had been ruled lawful and non-infringing after extensive litigation in Spain. 13 

Again, COT expresses no opinion about whether the site's activity violates U.S. law But 

the outcome in Spain suggests that the site operator, rather than being a clear-cut 

infringer, might at least have some serious legal arguments that it could offer in its 

defense. Its domain names were seized nonetheless. The end result was that a domain 

that Spanish courts had declared to be lawful was seized by the U.S. Government. 

Under a flawed definition or one-sided process, little would prevent domain-name 

seizure or blocking from being used against user-generated content sites - that is, 

websites that enable users to store, post, and share data. This is especially true in the 

case of lesser-known sites that officials may not be familiar with. A judge might think 

12 Ben Sisano, "Music Web Sites Dispute Legality of Their Closing," New York Times, December 19, 2010, 

http"llwww nytimes com/2010/12/20/business/media/20music html; see also Mike Masnick, "If Newly Seized 

Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?," Techdirt, November 

30,2010, http"//wwwtechdirt com/artlcles/201 01130/00245312049/if-newly-seized-domains-were-purelydedlcated-to-Infnngement-why-was-kanye-west-uslng-one.shtml 

13 Nate Anderson, "US Customs begins pre-Super Bowl online mole-whack," Ars Technica, February 2, 

2011, http://arstechnlca comflech-pollcy/news/2011/02/us-customs-beglns-pre-super-bowl-molewhacking ars; see also Mike Masnick, "Homeland Security Seizes Spanish Domain Name that Had Already 

Been Declared Legal," Techdirt, February 1,2011, 

http://www.techdirt.com/articles/20 11 0201/1 025241 291 O/homeland-security-seizes-spanish-domain-nam ethat-had-already-been-deciared-Iegal.shtml 
38 


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twice before issuing an order against a well-known platform, but not its equally legitimate 

start-up competitor. Such sites have many lawful uses, but can in practice be widely 

used for infringement as well. There is substantial ongoing debate and litigation about 

whether and when such sites should bear some responsibility and/or liability for 

infringing activities by users. But at a minimum, that is a question that should be decided 

only upon a full, adversarial judicial proceeding. Short-circuiting that process would risk 

affecting lawful platforms for user speech. 

A final reason why domain-name seizure and blocking may affect lawful speech relates 

to the existence of subdomains. Many web hosting services are constructed in a way 

such that thousands of individual sites, created and maintained by thousands of 

individuals, share a single domain name. For example, the service might be located at 

"webhosl.com" and the individual sites might be joe.webhosl.com and bob.webhosl.com. 

If some infringement sites were hosted on this kind of platform, domain-name seizure or 

blocking would affect not just the actual offenders, but the entire platform. Moreover, the 

existence of additional subdomains and thus the overbroad impact might not be 

immediately apparent to law enforcement authorities looking at a particular infringement 

website. As a result, a great deal of lawful speech could be affected. 

Again, the recent ICE seizures provide a cautionary tale. In early February, ICE 

executed seizure of ten domain names linked to sites allegedly hosting child 

pornography. Child pornography is a despicable crime. But in seizing one domain, 

"mooo.com," ICE inadvertently blocked thousands of innocent and unrelated 

subdomains.'4 The owner of mOOO.com allows individuals to register subdomains, which 

they can then point to any IP address. That means the mooo.com domain name is 

effectively subdivided and shared among numerous, entirely independent users. The 

content hosted at any particular subdomain is wholly separate - hosted on different 

servers with different IP addresses - than the content hosted at other subdomains or at 

the first-level "mooo.com" domain itself. But because of illegal content allegedly present 

at one such subdomain, aI/were seized and redirected to an ICE banner announcing 

that the domain had been seized for violating child pornography laws. 

Web sites hosted at those subdomains include many personal web sites that do not 

appear to be hosting any illegal content. In looking into the incident, COT discovered 

personal blogs, discussion forums, a small business, and sites where academic 

researchers shared papers and professional information.'5 During the time all 

mooo.com subdomains were inaccessible, these users were no doubt shocked to see as 

they tried to visit their sites not only that their sites were inaccessible, but that law 

enforcement was telling other would-be visitors that the sites had been taken down due 

to child pornography. This is an incredibly serious allegation that alone can damage an 

individual's reputation. 

The experience of mOOO.com users stands out as the most egregious example to date of 

overblocking that can result from domain-name seizure. Clearly ICE had not thoroughly 

14 Thomas Claburn, "ICE Confirms Inadvertent Web Site Seizures," Information Week, February 18, 2011, 

http"llwww informationweek com/news/security/vulnerabilities/showArticle jhtml?articieID-229218959&cid-R 

SSfeed IWK All 

15 See, B,g., http !!greyghost.mooo com!; http://cowbellmooo.com/catalog/index.php 
39 


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ensured that the action it was taking was narrowly tailored to the criminal actors, and the 

result silenced protected speech and harmed the reputations of innocent parties. 

The risk of overbreadth would be greatly exacerbated if legislation in this area were to 

include a private right of action. As noted above,'6 there is a long history of civil 

copyright challenges to mainstream technologies and bona fide businesses. Narrowly 

targeting a new enforcement tactic at true "bad actors" would be impossible if any private 

rightsholder could initiate an action. Borderline cases inevitably would be initiated and 

the unintended impact on lawful businesses and speech would be significant. Adding a 

private right of action to the kind of process contemplated last year's Senate bill would 

intensify that tactic's risks and costs 

In sum, seizing and blocking domain names would impede access to some material that 

is not itself infringing, but that simply shares a domain name with infringing material. 

This overbreadth, in turn, raises serious constitutional questions. There is a strong 

argument that the tactic of domain name seizure and blocking targets an instrumentality 

of speech (domain names) and that it creates a prior restraint, effectively trying to censor 

the owner of a domain name based on his or her illegal activity in the past. Especially 

given how ineffective domain-name focused enforcement measures are likely be in 

achieving their stated goal, as discussed above, a bill that adopts the approach could be 

vulnerable to a First Amendment challenge. 

C. Technical impact and cybersecurity 

Seizing and blocking domain names presents a number of technical challenges that 

could have an impact on the Internet's reliability, security, and performance. 

First, for ISPs, compliance with blocking orders may come at the expense of 

implementing the DNS Security Extensions (DNSSEC). For over 10 years, Internet 

engineers have been working to develop and implement a set of standards for 

addressing security flaws in the domain name system. DNSSEC is finally being 

deployed; the Office of Science and Technology Policy calls it a "major milestone for 

Internet security."'? But having DNS lookup providers either pretend a site does not exist 

or redirect users to a site they have not requested (such as to a site saying "access to 

the site you were seeking is being blocked due to a court finding of copyright 

infringement") is flatly inconsistent with DNSSEC. The incompatibility is technical; 

DNSSEC uses cryptography to prevent DNS responses from being tampered with or 

falsified. A DNS resolver using DNSSEC simply is not able to give a cryptographically 

signed response that is false. DNS lookup providers could try to avoid the incompatibility 

by declining to respond to certain DNS requests at all, but this carries performance 

drawbacks that providers might prefer to avoid. Congress should avoid steps that would 

prevent or discourage Internet service providers from implementing this important 

security standard. 

16 See supra note 5 and accompanying text 

17 Andrew McLaughlin, "A Major Milestone for Internet Security' White House Office of Science and 

Technology Policy Blog, July 22,2010, http://www whitehouse.gov/blog/201O/07/22/a-major-milestoneinternet-security 
40 


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Second, blocking at the service provider level carries security risks for Internet users 

beyond the tension with ONSSEC Most users today rely on their ISP to perform 

domain-name lookup functions. But as explained above with regard to ineffectiveness, 

switching to another lookup provider is trivial. The more ISPs and other major ONS 

providers are required to block lookup requests for websites that users want to reach, 

the more users will switch to independent, non-ISP ONS servers. And critically, they will 

not switch to other trustworthy U.S.-based ONS providers, but to ONS services located 

outside of the reach of U.S. law 

This would do more than just render service-provider-Ievel domain-name blocking 

ineffective. ISPs' ONS servers offer a crucial window into network usage; migration 

away from these servers would undermine ISPs' ability to observe and track botnet 

activity and other cybersecurity threats on their networks." 

In addition, it would put users at the mercy of potentially unscrupulous foreign ONS 

servers, which could redirect user traffic for phishing or botnet purposes. Though they 

may be unaware of it, users place an enormous amount of trust in their ONS provider to 

route requests to the proper sites. ISPs have incentive to maintain that trust, but other 

ONS operators - especially those with an interest in evading the blocking of sites 

dedicated to commercial infringement - will likely not share that same incentive. By 

creating strong incentives to rely on potentially untrustworthy ONS providers, the 

widespread use of domain-name seizure and blocking would create new and very 

dangerous opportunities for security risks and crime online 

Finally, encouraging many residential customers to rely on out-of-country ONS servers 

could undermine the efforts of CONs (content delivery networks, such as Akamai) to 

improve the overall speed and efficiency of the Internet as a whole. CONs rely on the 

approximate location of users' ONS lookup servers (based on IP address) to choose the 

best location from which to deliver content. As users change their ONS settings to use 

foreign nameservers, this signal will become a less reliable proxy for a user's location 

For example, a CON might assume a Maryland user using a Russian ONS provider is in 

Russia, undermining the benefits of CONs and distributed hosting and increasing 

I nternet congestion. 

These security and reliability harms flow directly from the use of domain-name remedies 

to address infringing content. In light of how ineffective the approach is likely to be, this 

should raise serious questions as to whether the approach is worth the risk 

D. International implications 

From an international perspective, Congress should think twice before endorsing 

domain-name blocking and seizure as common tools for enforcing domestic U.S. law 

against foreign websites. If other countries were to follow this example, the result would 

be a dangerous jurisdictional scrum. Other countries, citing the U.S. example, could try 

to seize or block the domain names of U.S. websites that are lawful here but that are 

asserted to violate some foreign law. This risk is not limited to repressive regimes. The 

scope of protection provided by the First Amendment remains the most expansive in the 

18 See Statement of DNS security researcher Dan Kaminsky regarding S 3804, available at 

http://www.publicknowledge.org/files/docs/COICA Kaminsky letter.pdf 
41 


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world, and speech protected in the United States remains proscribable in many other 

democratic countries. Local access to such speech remains a frustration to 

governments in those countries, and they would welcome a U.S.-based precedent to 

justify blocking it 

To take a concrete example, in 2000, a French court ruled that a Yahoo auction site 

(located at the Yahoo.com domain) violated French law because it contained postings 

for Nazi memorabilia." A U.S. court refused to enforce that judgment, because the site's 

activity was lawful in the United States. Taking the domain-name approach, however, in 

the future a foreign country with a similar complaint could try to seize or block the site's 

domain name. If the registrar or registry for the domain name in question has an office 

in that foreign country, it could be ordered to transfer control of the name. 

Enshrining domain-name seizure and blocking in statute could also serve as precedent 

for a variety of actions that the United States would characterize as censorship. Already, 

some countries erect national Internet "firewalls," in an effort to suppress access to 

certain speech. Over forty countries (and growing) now filter the Internet to some 

degree, and even many liberal democracies like Australia and France are considering 

mandatory regimes in which the government requires ISPs to block certain websites 20 

Historically, the U.S. State Department has been the strongest global voice against such 

balkanization of the Internet. Indeed, Secretary of State Clinton has made the concept of 

a single, global Internet a cornerstone of U.S. foreign policy on Internet matters, as she 

reaffirmed in a major speech last month." But if the United States were to set the 

precedent that any country can order the blocking of a domain name if some of the 

content at that name (wherever its physical location) violates the country's local laws, 

is hard to see what credibility the United States would have as it urges other countries 

not to block access wherever they see fit. 

To be clear, COT does not suggest that the United States should not take action against 

online infringers and encourage other countries to do likewise. The concern is simply 

that trying to use domain names as the means for fighting infringement would signal U.S. 

acceptance for the proposition that countries have the right to insist on removal of 

content from the global Internet as a tactic for enforcing domestic laws - and nothing 

would limit the application of this approach to copyright infringement and counterfeiting. 

In countries where rule of law is weak or entirely absent, that approach would open the 

door to serious misuse. Once the United States sends the green light, the use of 

domain-name seizures and blocking to attempt to silence other kinds of content 

19 UEJF and Ucra v. Yahoo! Inc. and Yahoo France, Tribunal de Grand Instance de Paris, May 22, 2000, 

http://www.juriscom.net/txt/jurisfrictilyauctions20000522.htm 

20 See Australian Department of Broadband, Communications, and the Digital Economy, "ISP Filtering, 

http"//wwwdbcdegovauffundlng and proarams/cybersafety plan/internet service provider isp filtering: 

see also Projet de loi d'orlentation et de programmation pour la performance de la securite interieure 

(France), passed by the French Senate on February 8, 2011 and available at http.llwww senat.fr/petite-Ioiameli/201 0-2011/262.html (in French: bill including a requirement that ISPs block access to Internet sites 

when ordered by an administrative authority) 

21 Secretary of State Hillary Rodham Clinton, "Internet Rights and Wrongs· ChOices & Challenges in a 

Networked World," Speech at George Washington University, February 15, 2011, 

http://www.state.gov/secretarylrm/2011/02/156619 htm 
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considered unlawful in a given country - from criticism of the monarchy in Thailand to 

any speech that "harms the interests of the nation" in China - would surely spread In 

short, the international precedent set by codification or expansion of domain-name 

focused enforcement efforts would worsen the balkanization of the Internet and 

undermine the effort to protect the ability of Internet users, human rights defenders, and 

citizen journalists to speak and access content online. 

E. Compliance costs 

A substantial portion of the costs of domain-name-focused enforcement measures would 

fall on third parties - specifically, registrars, registries, or ISPs. While the expense to 

third parties of complying with seizure and blocking orders is not a primary focus for 

COT, Congress should take account of such costs in conducting a cost-benefit analysis 

of such tactics. Given the minimal effectiveness of measures targeting domain names, 

COT believes there is little justification for asking registrars, registries and ISPs to bear 

the cost of carrying out such measures on behalf of law enforcement authorities. 

IV. Conclusion 

Fighting online infringement is a worthy goal The tactics policymakers choose, 

however, matter a great deal. Unfortunately, there is no "silver bullet" that can eliminate 

infringement sites entirely or make them inaccessible to Internet users. Domain-name 

blocking and seizures are certainly not the answer; codification and widespread use of 

this tactic would carry costs and risks that would far exceed its minimal impact on 

infringement. COT believes it would be a serious mistake for Congress to enact 

legislation focused on using domain names to control infringement 

As the principles discussed above suggest, a sound policy approach regarding 

enforcement in this area would focus first and foremost on catching and punishing true 

"bad actors." In the case of non-U.S. perpetrators, this will require cooperation with 

foreign governments. While such cooperation undoubtedly takes some effort, it 

ultimately offers the most effective approach, because it is the only way to ensure that 

the "bad guys" and the computer servers they use are actually taken offline for good. 

Moreover, a recent study found that a small group of users (around 1 DO) were 

responsible for the lion's share of infringing files on major BitTorrent sites. 22 This 

suggests that well-targeted enforcement cases could have a substantial impact and be 

well worth the effort. 

To the extent Congress believes new enforcement tools are necessary, it should look for 

remedies other than domain-name blocking and seizures. Cutting off infringers' sources 

of financial support would be one area to explore. In addition, Congress should be 

careful to focus any special new enforcement mechanisms narrowly on cases in which it 

has been shown that current tools cannot work. Congress should take into account not 

22 Ruben Cuevas et. al., Is Content Publishing in BitTorrent Altruistic of Profit-Driven?, ACM CoN EXT 

Conference (November 30 - December 3, 2010, Philadelphia, PAl, http://conferences.slgcomm org/conext/20101CoNEXT papers/11-Cuevas pdf See also Carlos III University of Madrid, "A research study 

identifies who uploads the majority of the content to the P2P piracy networks," Press Release, 

http://www.uc3m.es/portal/page/portal/actualidad cientifica/noticlas/P2P network (last visited March 7, 

2011) 
43 

Mr. GOODLATTE. Mr. Castro. Welcome. 

TESTIMONY OF DANIEL CASTRO, SENIOR ANALYST, INFORMATION TECHNOLOGY AND INNOVATION FOUNDATION (ITIF) 

Mr. CASTRO. Chairman Goodlatte, Ranking Member Watt, and 

Members of the Subcommittee, I appreciate the opportunity to appear before you to discuss strategies for dealing with these socalled parasitic, or rogue sites, on the Internet. These websites 


Sohn-14.eps
44 

steal American and intellectual property either through engaging 

in digital piracy or selling counterfeit goods. 

Rogue sites stunt economic growth, eliminate American jobs, and 

put U.S. consumers at risk. The problem of digital piracy has become so pervasive today that one in four bits traveling on the 

Internet is infringing content. 

With just a few clicks, Internet users can download pirated copies of full-length Hollywood movies, watch unauthorized video 

streams of live sports games, and illegally download software to 

use on their computers. Sometimes it is even easier to find pirated 

content on the Internet than legitimate content. 

To give just one example, I recently performed a Web search for 

‘‘watch Inception online,’’ and there was not a single link to a legitimate website in the first two pages of results. Instead, I received 

a list of rogue sites that earned, had revenue every time a user 

watches the movie illegally. 

Consumers shopping online are also exposed to counterfeit shoes, 

counterfeit goods, including prescription drugs, cosmetics, handbags and shoes. Not only are these goods, counterfeit goods, often 

of poor quality, many counterfeit items such as infant formula or 

baby shampoo have been found to be harmful to human health. 

Here, too, the problem is substantial. A recent study found that 

traffic to 48 sites selling counterfeit goods averaged almost a quarter of a million visits per day. This translates into serious consequences for our economy. One groups estimates the counterfeiting has directly resulted in the loss of more than 750,000 jobs. 

Currently rogue sites operate in a low risk, high reward environment. Site operators, especially those outside of the United States, 

face few personal risks from law enforcement and encounter few, 

if any, barriers to distributing illegal content online. We need to 

change the equation. 

More can be done to help reduce online infringement, including 

the following, create a process by which the Federal Government, 

with the help of third parties, can identify websites around the 

world that are systematically engaged in piracy or counterfeiting; 

enlist ISPs to combat rogue sites by blocking them, implement notice and response systems for repeated infringers and impose data 

caps where necessary; enlist search engines to combat IP theft by 

removing rogue sites from the search results; Require ad networks 

and financial service providers to stop doing business with websites 

supporting IT theft; create a process so that the private sector can 

consult with government regulators on proposed uses of anti-piracy 

or any counterfeiting technology; use NSF or NIST to fund anti-piracy and anti-counterfeiting technology R&D; and, finally, pursue 

global framework to protect IP internationally, and impose significant pressure and penalties on countries that steal from the United 

States. 

The purpose of these actions should not be to target minor violations of the law, but rather to target websites primarily designed 

to steal intellectual property. New tools are especially needed for 

foreign rogue sites such as the Pirate Bay, a Swedish site dedicated 

to stealing software, movies, music, video games, books and other 

digital content. 

45 

One way to address these sites is to block them at the DNS level. 

DNS is like the global phone book for the Internet where providers 

use the number that—provide users the number that corresponds 

to each name. Using DNS to block rogue sites is certainly straightforward. 

DNS servers can be instructed to no longer resolve an IP address 

when users look up the domain of a known rogue site. Without this 

IP address, users would not be able to go on and visit these sites. 

Basically this would be like taking a list of criminal organizations 

out of the phone book. 

Some opponents of better enforcement of IP claim this will disrupt the Internet. I am here to tell you this claim is 100 percent 

false. The simple fact is that using DNS to block access to websites 

or servers is not particularly new or challenging. DNS redirection 

has been used for many years to block spam and bot nets and to 

protect users from malware. It is also widely used to provide parental control filters, correct typos in URLs and to provide improved 

search results. 

Another objection some critics make is that blocking rogue sites 

contradicts the idea of a free and open Internet. However, websites 

that egregiously violate the law at the expense of American consumers and American workers have no place on the Internet. 

Democratic nations are well within their rights to use clear and 

transparent legal means to enforce IP rights online. 

The responsibility for maintaining the Internet falls upon each 

user, each service provider and each business and institution that 

uses it, operates it and profits by it. I encourage you to put in place 

the frameworks and policies needed to facilitate and encourage all 

actors within the Internet ecosystem to take some measure of responsibility for maintaining its integrity and protecting consumers. 

Thank you. 

Mr. GOODLATTE. Thank you, Mr. Castro. 

[The prepared statement of Mr. Castro follows:] 

46 


Castro-1.eps

Daniel Castro 

Senior Analyst 

Infonnation Technology and Innovation Foundation (IT1F) 

"Promoting Investment and Protect Commerce Online: Legitimate Sites vs. Parasites, Part I" 

Before the 

Committee on the 

Committee on Judiciary 

Subcommittee on Intel1ectual Property, Competition, and the Internet 

U.S. House of Representatives 

March 14, 2011 

Mr. Chainnan and members of the Committee, I appreciate the opportunity to appear before you 

to discuss how to promote investment and protect commerce online by creating new enforcement 

mechanisms to restrict the impact of parasitic web sites. These web sites are an economic leech on 

the Internet economy. My name is Daniel Castro. I am a senior analyst at the Infonnation 

Technology and Innovation Foundation (ITIF). ITIF is a nonpartisan research and educational 

institute whose mission is to fonnulate and promote public policies to advance technological 

innovation and productivity. 

The Internet is a tremendous enterprise of user empowennent, free speech, and innovation, but it 

facilitates unlawful acts just as much as lawful ones. The proliferation of parasitic or rogue 

sites-web sites enabling online piracy and the trade of counterfeit goods at the expense of 

legitimate businesses-is a pervasive problem that hurts American consumers and costs 

Americansjobs. Unchecked these rogue sites are a threat to the economic welfare of the United 

States. 

While there is no silver bul1et for stopping these rogue sites, we have an arsenal of "lead bul1ets" 

that col1ectively can significantly reduce their impact and sustainability. As with any law 

enforcement initiative, efforts at reducing digital piracy and online counterfeiting involve 

balancing costs and benefits For example, while street crime could be reduced by doubling the 

number of police officers, communities seek an equilibrium where the marginal cost of an 

additional police officer does not outweigh the corresponding reduction in crime. With regard to 

rogue sites, it is hard to argue that this equilibrium has been reached-that society would not be 

better off with greater efforts to stop these sites. The extent of online copyright infringement is 

so large, and the costs of additional enforcement are so reasonable, that it is clearly in the public 

interest to take more aggressive steps to curb it. 
47 


Castro-2.eps

Critics of stronger online intellectual property (\P) enforcement claim that such efforts will 

negatively impact the Internet ecosystem. This claim seems to assume that piracy is the bedrock 

of the Internet economy, an assertion not backed up by any evidence. Rather than limiting 

Internet innovation, as some assert, protecting copyrighted works online is necessary for 

innovation to continue to thrive on the Internet. While some anti-piracy proposals impose too 

much of a burden on businesses and consumers, many anti-piracy efforts do not negatively 

impact the Internet ecosystem. The goal of policymakers should be to identify and encourage as 

many of these tools and techniques as possible. 

While the Internet is a vast, distributed system that has no central point of control, it should not 

be without any control whatsoever. Rather, the responsibility for maintaining the Internet falls 

upon each user, each service provider, and each business and institution that uses it, operates it, 

and benefits from it. Not every effort targeted at rouge sites should be embraced. But there are 

many cost-effective technologies available to confront rogue sites that only impinge on the 

"freedom" to steaL The US. government needs to put in place a framework that facilitates and 

encourages responsible control by alL Much more can and should be done. We need to make 

sure that all stakeholders, including government, content owners, website operators, financial 

service providers, ad networks, search engines, ISPs and other intermediaries, work together to 

form a comprehensive response to rogue sites. 

Rogues Sites Remain a Significant Problem for the United States 

Rogue sites-web sites engaged in digital piracy or selling counterfeit goods-steal US. 

intellectual property and stunt economic growth, eliminate American jobs, and put U.S. 

consumers at risk. As documented here and elsewhere, intellectual property (lP) makes 

substantial contributions to the U.S. economy. IP enforcement is an increasingly urgent matter 

for the United States because IP is a large component of what the United States produces and 

because this content is increasingly vulnerable in the global, knowledge-based economy. While 

U.S. firms increasingly manufacture overseas, an estimated 45 percent of the U.S. GDP comes 

from the proprietary ideas inside a product rather than the assembly of products. 1 The United 

States is a net exporter of IP, with IP contributing $37 billion to our trade balance in 20062 IP 

industries also contribute to the US. trade balance through royalties and licensing fees. In 2006, 

U.S. receipts from cross-border trade in royalties and license fees (including patents, trademark, 

copyright, and other intangible rights) amounted to $63.4 billion and payments totaled $26.4 

billion.' 

The costs imposed on businesses by digital copyright infringement and counterfeiting restrict the 

ability of innovators to recover the expenses they incur to develop new products and services or 

produce new content. These activities reduce investment in research and development for new 

technology, lower US. economic growth, and ultimately result in a less robust innovation 

economy. 

2 
48 


Castro-3.eps

Online Piracy 

Of all the industries that have been revolutionized by the rise of digital technology and the global 

Internet, few have been hit as hard as the industries that produce creative works-the producers 

of software, music, movies, television programs, video games, books, photos, and other media. 

The Internet has made global distribution of content easier than ever, with the ultimate promise 

of slashing costs by reducing the role of middlemen who produce, distribute, and sell the 

physical copies. Many users go online and pay for digital content or applications through sites 

like Amazon, iTunes or Nett1ix. Unfortunately, the digital era also has a serious downside for 

content producers and others in the industry as it has made it easier than ever for consumers to 

get access to content without authorization or without paying for it. Many Internet users around 

the world still choose to download pirated digital content from illegal sites or peer-to-peer (P2P) 

networks. The problem has become so pervasive that one in four bits of traffic traveling on the 

Internet today is infringing content. 4 

Much of the illegal exchange of content has been facilitated by digital tools that facilitate file 

sharing between users, including peer-to-peer (P2P) file sharing networks, hosted online file 

shares and online streaming services. P2P-based and unicast streaming services such as TV Ants 

and SopCast are widely used for re-transmission oflive sports games and other events5 While all 

of these technologies have legitimate uses, the technologies have also been used for the 

unauthorized distribution of digital content on a global scale. In some cases, such as with some 

P2P file sharing networks, this has even become the principal use of the technology, although 

some P2P networks are focused on distributing legal content6 Websites like the Pirate Bay, 

isoHunt, and Btjunkie routinely rank among the most popular websites on the Internet and offer 

the ability to illegally download virtually all popular TV series, movies, recently released songs, 

software and games7 Unauthorized file sharing has been exacerbated by the growth of Web 2.0, 

or websites that cater to user-generated content, as many Internet users make no distinction when 

uploading between content they are authorized to upload and content they are not. 

ITlF has previously documented how Internet users can easily go online and, with just a few 

clicks, download pirated copies offull-Iength Hollywood movies, watch unauthorized live video 

streams of sports programming online for free, or illegally download software programs to use 

on their computersg To give just one example, a recent web search for "Watch Inception Online" 

did not yield a single link to a legitimate website in the first two pages of results, but instead 

produced links to rogue sites to watch or download the movie 9 Many of these sites earn 

advertising dollars from major companies. In ITlF's 2009 review of the websites The Pirate Bay 

and isoHunt, we found these sites displaying ads for brands such as Amazon.com, Blockbuster, 

British Airways, and Sprint. 10 

Some argue that online piracy is not really a problem, and that it only hurts large, profitable 

multinational companies, and even helps consumers by enabling them to obtain content at no 

cost. But this is fundamentally wrong. Online piracy harms the artists, both the famous and 

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struggling, who create content, as well as the technicians-sound engineers, editors, set 

designers, software and game programmers-who produce it. And it also hurts law-abiding 

consumers who must pay higher prices for content, enjoy less content or relatively lower quality 

content, or pay higher prices for Internet access to compensate for the costs of piracy. Moreover, 

digital piracy not only results in the unauthorized distribution of content, it hurts the ability of 

content producers to create legitimate business models for selling digital content. As the saying 

goes, "It's hard to compete with free." While many companies have rallied to the challenge and 

created compelling businesses to sell content legally, on the whole, illegal content still remains 

widely available and commonplace. 

While most individuals do not shoplift DVDs out of retail stores, many people feel comfortable 

downloading movies without paying for them. Why do so many people knowingly choose to 

continue to download unauthorized content" One reason is that it is so easy to find and download 

copyrighted content online. If stealing cars was as easy as pointing and clicking (and no one 

could tell if the car you are driving is stolen), the rate of motor vehicle theft would probably be 

much higher. A Pew Report found that "75% of teen music downloaders ages 12-17 agree that 

'file-sharing is so easy to do, it's unrealistic to expect people not to do it. '" II This survey also 

reflects the mentality of many people who think that "everybody is doing it" or that piracy is just 

"a function of the Internet." 12 Moreover, the Internet gives users a sense of anonymity where the 

risk of getting caught is relatively low and that of punishment even lower. 

Piracy has a negative effect on the US economy. Because the United States is the nation that is 

most specialized in the production of digital goods (e.g., music, movies, software, video games, 

books, etc.) it also the nation that is most vulnerable to digital piracy. And much of this piracy 

occurs online. While the exact cost of piracy is difficult to measure, we have some good 

estimates of its magnitude. For example, one estimate found that the US. motion picture, sound 

recording, business software, and entertainment software/video game industries lost over $20 

billion dollars in 2005 due to piracy, and retailers lost another $2 billion, for a combined loss of 

over $22 billion. 13 In 2006, another study found that the US. recording industry and related 

industries lost over $3.5 billion to online piracy and approximately $1.5 billion in physical 

piracy. 14 The recording industry has been particularly hurt by online theft because digital music 

files are small enough to transmit quickly, even over relatively slow Internet connections. The 

International Federation of the Phonographic Industry (IFP!) estimates that for every purchased 

track there are as many as 20 illegally downloaded songs. 15 In 2005, music piracy was associated 

with the loss or lack of realization of over 12,000 jobs in the sound recording industry in the 

United States. 16 

Other content industries have been impacted by piracy as well. The motion picture industry has 

lost significant amounts of money to pirated movies both online and on DVD. According to a 

report published by LEK Consulting, the US. motion picture industry lost $6.1 billion to piracy 

in 2005, which one report argues eliminated or prevented the creation of 46,597 jobs in the 

motion picture industry.17 Neither are software companies immune from piracy. With pirated 

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software equaling 20 percent of legitimate sales, the total value of pirated software is estimated 

to be over $9 billion in the United States 1S Moreover, although piracy rates have hovered around 

20 percent for the last several years, total software piracy has steadily increased in line with the 

growth in software sal es. 

Online piracy of sporting events, either through distributing illegal recordings or retransmission 

of live events, is another pervasive problem. A 2008 study found that the audience for 

unauthorized live streams of sporting events, such as NBA, NFL and MLB games, exceeded one 

million viewers and users can often find numerous unauthorized live streams for popular 

events. 19 Sites streaming this content generate revenue either through ads or subscriptions. The 

impact of unauthorized transmissions is growing. For example, betw·een 2007 and 2008 illegal 

distribution of Maj or League Baseball content increased by 25 percent20 

Videogame piracy is a growing problem \vorldwide. In 2008 the Entertainment Software 

Alliance detected more than 700,000 copyright infringements a month across more than 100 

countries and sent out 6 million copyright infringement notifications. According to a report by 

the International Intellectual Property Alliance, in December 2008, 13 titles were illegally 

downloaded 6.4 million times. The top two titles alone accounted for nearly three-fourths of 

illegal downloads. The report, which evaluated piracy in 219 countries, found that two P2P 

networks, BitTorrent and eDonkey, were the largest sources of gaming piracy. 21 

Although not as common as music, movie, software, or videogame piracy, e-book piracy is 

growing, particularly as more content is sold in digital fonnat. While hard data on book piracy is 

scarce, many publishing industry analysts see evidence of an alanning increase in piracy, due in 

part to the advent of the e-book reader. For example, John Wiley & Sons (publisher of the 

Dummies series) reports that in April 2009 it sent out 5,000 notices of online copyright 

violation-more than double the number of notices sent in the previous year22 In addition, ebook piracy appears to be more concentrated on certain websites than music, software, or motion 

picture piracy. Indeed, some industry observers estimated that as of 2009 as much as half of ebook piracy \vas housed on RapidShare, a Switzerland-based file hosting company that has 

advertised more than 10 petabytes of user uploaded files. 23 

Counterfeit Goods Online 

Rogue sites are also used to sell counterfeit goods. Counterfeit goods are widely available online 

through retail websites and online auctions. A recent study found that traffic to 48 sites selling 

counterfeit goods averaged more than 240,000 visits per day or more than 87 million visits per 

year. 24 Consumers shopping online are exposed to counterfeit goods, especially luxury goods 

such as jewelry, cosmetics, handbags, garments and shoes. Often these products are sold on sites 

that appear legitimate, charge reasonable prices, and may even link to the customer service of the 

brand owner. These counterfeit goods are often of poor quality. Counterfeiters also produce nonluxury goods. For example, counterfeit products such as infant fonnula or baby shampoo have 

also been discovered that pose health risks to young children. Illegal online pharmacies sell 
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counterfeit prescription and non-prescription drugs to consumers for a variety of health 

conditions. As best, these drugs may simply be ineffective; at worst, they can be harmful, even 

lethal, to human health. Statistics about the exact size of the global market for counterfeit drugs 

vary, but most experts agree the problem is serious 25 A 2011 report found that the combined 

traflie to 26 sites selling counterfeit prescription drugs averaged 141,000 visits per day or more 

than 51 million visits per year26 

Counterfeiting hurts American consumers. First, consumers face tinanciallosses. Consumers 

who unknowingly purchase counterfeit goods waste their money on inferior products. In 

addition, all consumers pay higher prices for goods as businesses must charge higher prices to 

recoup losses from the trade in counterfeit goods. Second, consumers risk physical harm. 

Counterfeit products can be unsafe, unmonitored for quality assurance, and pose a threat to 

human health. Injury and even death has been reported as a result of counterfeit baby fonnula, 

drugs, cosmetics and toiletries27 

Counterfeiting also hurts American companies. First, companies face direct losses from 

counterfeit goods that erode their sales. Second, consumers who unknowingly purchase lowquality counterfeit goods may mistakenly attribute the defects to the brand owner and no longer 

purchase products from that company. Companies must also allocate resources to responding to 

complaints from these "customers" who call to report defects or ask for service under an 

illegitimate warranty2R 

Counterfeit goods account for approximately 7 percent of global trade29 The worldwide market 

for counterfeit goods exceeded $500 billion in 2006 of which $250 billion was for U.S. goods.'o 

The impact of these losses is substantiaL The International Anti-Counterfeiting Coalition 

estimates that counterteit merchandise directly results in the loss of more than 750,000 American 

jobs]! 

Potential Legislative Responses 

While the existing notice and takedown regime has provided an initial step towards combating 

piracy, clearly more can and needs to be done. Currently rogue sites operate in a low risk, high 

reward environment. Site operators, especially those outside of the United States, face few 

personal risks from law enforcement and encounter few barriers to distributing illegal content 

online. We need to change the equation. In December 2009, IT1F proposed a number of policies 

to help reduce online copyright infringement, especially in countries that tum a blind eye to 

copyright enforcement32 The purpose of these policies is to establish a robust enforcement 

mechanism to combat IP theft online. These recommendations include the following: 

• Create a process by which the federal government, with the help of third parties, can 

identify web sites around the world that are systemically engaged in piracy 

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• Enlist ISPs to combat piracy by blocking web sites that otfer pirated content, allowing 

pricing structures and usage caps that discourage online piracy, and implementing notice 

and response systems 

• Enlist search engines to combat piracy by removing websites that link to infringing 

content from their search results 

• Require ad networks and financial service providers to stop doing business with websites 

providing access to pirated content 

• Create a process so that the private sector can consult with government reb'Ulators on 

proposed uses of anti-piracy technology 

• Fund anti-piracy technology research, such as content identification technology 

• Pursue international frameworks to protect intellectual property and impose significant 

pressure and penalties on countries that flout copyright law 

Many of these recommendations have been considered in recent legislation, such as the 

Combating Online Infringement and Counterfeits Act (COICA), introduced by Senators Patrick 

Leahy (D-VT) and Orrin Hatch (R-UT) in 2010. COICA would provide important new tools to 

crack down on online infringement of intellectual property. The legislation would not target 

minor violations of copyright, but rather would target "Internet sites dedicated to infringing 

activities" which it defines as a site that is "primarily designed, has no demonstrable, 

commercially significant purpose or use other than, or is marketed by its operator. .. to offer" 

unauthorized access to copyright-protected content. Many of these "Internet sites dedicated to 

infringing" are well-known foreign web sites in countries including Russia, Sweden and the 

Ukraine, such as the Pirate Bay and others identified in the USTR's "Out-Of Cycle Review of 

Notorious Markets." 

Response to Criticism of Legislation 

Critics of implementing these enforcement mechanisms make three general objections: 1) that 

these proposals would restrict free speech; 2) that these proposals would encourage censorship in 

foreign countries; and 3) that these proposals would cripple the technological infrastructure on 

which the Internet runs. All of these objections are unfounded. 

Freedom of Speech 

First, some critics oppose COICA and similar proposals on the grounds that it would hurt free 

speech, a groundless accusation. Not all free speech is protected. As Justice Holmes in Schenck 

v. u.s. famously arb'Ued, freedom of speech does not include the freedom to falsely yell "Fire" in 

a crowded theater (or more recently "Bomb!" on an airplane) 33 Nor does it entail the freedom to 

establish a website for the sole purpose of enabling online piracy, even if the site posts a few 

statements expressing the owners' political views or some other authorized content. 

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Neither does the idea of a "free and open" Internet mean that every website has the right to exist. 

Certainly, most people would agree that some web sites should not be permitted to remain online, 

such as sites devoted to hosting child pornography or illegal scams. The purpose of this 

legislation is not to shut down a personal website that accidentally links to a copyrighted image 

or websites that use material protected by fair use, but to shut down websites whose principal 

purpose is to engage in egregious infringement of intellectual property. 

There is no legitimate reason for parasitic web sites, whose sole purpose is to leech otT of the IF 

created by others, to exist. Russian piracy web sites, like Legal Sounds or other clones of the now 

defunct Russian website "allofmp3," add nothing of value to the Internet economy and instead 

weaken it for all legitimate consumers and stakeholders. The Internet was not meant to be a 

gigantic piracy machine. It was not designed or built for the primary (or even secondary) purpose 

of facilitating unlawful transactions, and it is shameful for proponents of piracy to hide behind 

the excuse that filtering or blocking access to unlawful conduct is in some way analogous to the 

suppression of dissent in authoritarian dictatorships. There is clearly an enormous difference 

between the actions of an undemocratic government and the legitimate desire of liberal 

democracies to limit the ill-gotten gains of piracy promoters, advertisers, and service providers. 

The time has come for the law to catch up with technology by adopting a reasonable set of 

enforcement measures to make piracy less prevalent and less blatant on the Internet. 

Yet critics of calc A, such as the Electronic Frontier Foundation (EFF), complain that free 

speech will be hurt if the government blocks "a whole domain, and not just the infringing part of 

the site.,,3-1 While certainly most infringing sites will contain at least some non-infringing 

content, it is not an injustice to block the entire site. As noted, COlCA only applies to sites where 

the principal purpose of the site is to engage in digital piracy. Such frivolous complaints are 

equivalent to arguing that it would be unfair for the justice system to shut down a bar found to be 

repeatedly serving alcohol to minors even if some of its customers were of legal age or a pawn 

shop that serves as a front for moving stolen goods even if a few of its items were acquired 

legally. 

Others present a similar criticism of proposed legislati ve solutions under the guise of protecting 

free speech when their objection is really to an expansion of government authority. This 

mentality is exemplified by Bruce Schneier who as a matter of course argues against virtually 

any action by government to police abuses on the Internet.'5 These kinds of objections come 

from a purely anti-government ideology that rejects any attempt to give government more power, 

even if that is appropriate power to enforce laws against criminals. 

Foreign Censorship 

Critics also claim that the policies in COICA would set a negative precedent and harm the United 

States internationally by giving political cover to the "totalitarian, profoundly anti-democratic 

regimes that keep their citizens from seeing the whole Internet.,,]6 Critics, such as the 87 Internet 

engineers who signed EFF' s letter to the Judiciary Committee, argue that COICA would 

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"seriously hann the credibility of the United States in its role as a steward of key Internet 

infrastructure" Others, including groups like the American Library Association, Consumer 

Electronics Association, NetCoalition and Public Knowledge, arh'lle that "COICA's blacklist 

may be used to justify foreign blacklists of web sites that criticize governments or royalty, or that 

contain other 'unlawful' or 'subversive' speech.,,37 Again, these criticisms do not stand up to a 

serious analysis. This is equivalent to arguing that the United States should not put rioters who 

engage in wholesale property destruction and violence in jail because it encourages totalitarian 

governments to use their police to suppress their citizens. 

More narrowly, some critics, such as Wendy Seltzer at Princeton University's Center for 

Information Technology Policy, arh'lle that other countries would use anti-piracy efforts as a ruse 

for cracking down on political dissidents38 Such activities are not without precedent-Russian 

police have raided advocacy groups and opposition newspapers that have spoken out against the 

government in the name of searching for pirated software39 Yet while certainly some 

unscrupulous countries might claim their actions are equivalent to that of the United States, it 

would be demonstrably untrue. There is simply no comparison between a country using clear and 

transparent legal means to enforce intellectual property rights online and a country censoring 

political speech online, even under the guise of protecting copyrights. Moreover, to argue that 

abusive regimes operating without the rule oflaw would somehow act more abusively because 

the United States cracks down on cyber crime is a stretch at best. If this were the case, we should 

have seen a dramatic increase in Internet censorship after nations like France and the UK 

recently passed laws to crack down on online copyright theft. 

In fact, if this law would have any effect on foreign nations it would be to embolden them to take 

stronger steps to crack down on digital piracy, a problem that is even worse in many foreign 

nations and one that contributes to a deteriorating balance of trade for the United States as 

foreign consumers steal US. software, music, video games, movies, books, photos, and other 

digital content. 

Weaken the Internet 

Finally, some opponents of stricter online IP enforcement argue that this legislation "will risk 

fragmenting the Internet's global domain name system (DNS),,40 To understand the debate, you 

must understand how DNS works. DNS is like a global phonebook for the Internet providing 

users a number that corresponds to each name. Before a user can visit a domain name (e.g. 

www.itiforg). his or her computer must first discover the IF address associated with that web 

address (e.g. 69.65.119.60). DNS servers provide this service to users by translating domain 

names into IP addresses through a recursive process. Most users rely on the DNS servers of their 

10caliSP for this service and it is these DNS servers that are the principle target of COl CA. If the 

DNS server knows that a given domain name is for a rogue site, e.g. www.watch-piratedvideos.tv, then the DNS servers could be instructed to no longer resolve an IF address for that 

domain. And without this IP address, users would not be able to visit these infringing websites. 

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Groups like EFF claim this will "undermine basic Internet infrastructure" and lament that it will 

keep ISPs from "telling you the truth about a website's location.,,4! While such fiction may be 

useful in generating fear about the policies in COICA, the simple fact is that using DNS to block 

access to web sites or servers is not new or particularly challenging- DNS redirection has been 

used for blocking spam and botnets and protecting users from malware, for example, for many 

years. In addition, many DNS resolvers routinely return different answers to users as part ofa 

service, such as to provide parental control filters, correct typos in URLs, or to provide search 

results in lieu of a basic "domain not found" error.-l2 

Other critics, such as the Center for Democracy and Technology, argue that COTCA will set a 

precedent where ISPs will be required to block other "illegal or unsavory content" creating "a 

controlled, ISP-policed medium.,,43 Such an end result is antithetical to the world view of CDT 

(and other opponents of this legislation) that the Internet should be free of private-sector control 

regardless of the consequences. This "slippery slope" argument is fundamentally illogical. The 

analogy would be like saying that if we pass laws against a person committing physical assault 

on another person, then it is only a matter of time before we pass laws against people bumping 

into each other rudely on the street. Such stubborn and entrenched views do not ret1ect the kind 

oft1exible policymaking that most people agree is necessary for the fast-paced world of the 

evolving Internet. Rather than relying on tradition to justify Internet policy, a better approach 

would be to look at the practical implications of specific policy proposals in the present. 

Finally, some critics lament that by preventing DNS servers from responding with "the truth, the 

whole truth, and nothing but the truth" COICA will sabotage DNS Security Extensions 

(DNSSEC), a recent upgrade to DNS that seeks to improve the security of the DNS system. Part 

of the problem is that the current DNS standard does not provide a mechanism by which a DNS 

server can tell the requester "the site may exist, but it is illegal so I am not going to find the 

answer for you." Instead, the server must choose a less eloquent response, such as not replying (a 

bad idea since the user will just keep asking), replying that the domain does not exist, or replying 

with an incorrect address. 

However, this problem appears to be the result of a deficiency in the current DNS protocol rather 

than any true technical limitation. It could be easily addressed by modifying the standard to 

support these additional types of responses. Indeed, one such modification has already been 

developed and proposed by a key architect ofDNS.4-l 

Other critics claim that DNS blocking will provoke a mass exodus of users from U.S.-based 

DNS servers to foreign DNS servers outside of the jurisdiction of US. lawmakers and, as a 

result, be ineffective. However, this argument is t1awed. While switching DNS servers may be 

easy for some users, it is still beyond the comfort level of many, if not most, Internet users. 

Moreover, users who switch to foreign DNS servers would expose themselves to many security 

risks if they cannot trust the responses from these servers. For example, while the name servers 

may reliably return the correct IP address for a Russian MP3 site, they might not return the 

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correct address for Bank of America. How many users are willing to risk their identity and 

financial information just to download a few songs? Similarly, the DNS server that a person uses 

can collect a fairly detailed record of an individual's browsing history which presents obvious 

privacy risks. Would most users trust their entire browsing history to an unregulated, foreign 

company? 

Using a foreign DNS server also could result in substantial decreases in performance for many 

users. People usually get what they pay for (except with piracyl), and a free foreign DNS service 

is likely to be substantially slower than the ONS servers offered by local ISPs. How many users 

would tolerate a few extra seconds of delay every time they click a link? In addition, users of 

foreign DNS servers would likely see another performance hit when accessing web sites using 

content distribution networks like Akamai because foreign DNS servers would point them to the 

CON content servers closest to the overseas ONS server not the user. 

Aside from practical matters there is also the obvious question of who would be willing to 

provide such a service. If, as opponents of these policies argue, virtually every American user 

leaves their local DNS server, who would provide all of the computing power necessary to 

process these DNS requests? And more importantly, who would pay for it? Moreover, these 

opponents miss the point that these policies can be extremely effective even if some users evade 

the restrictions. Many users visit these sites out of ignorance or complacency. A warning that lets 

them know that the site they are trying to access is illegitimate will help direct consumers to 

legitimate web sites for legal goods. 

Why the Criticism? 

So what's really behind these criticisms? Most reflect these groups' and individuals' overarching 

view of the Internet as a medium whose chief functi on is to liberate individuals from control by, 

or dependence on, big organizations. For these groups, the Internet is flfSt and foremost about 

individual freedom, not about collective responsibility. They see the Internet as a special place, 

above and beyond the reach of the kinds of rules that govern the omine world. Yet, for most of 

the rest of us, the Internet is no ditTerent than the rest of society where we have rights and 

responsibilities and where laws against certain behaviors exist. We play by the rules and we 

expect others to do the same, and when they do not, we expect society (through the actions of 

democratically elected governments) to step in and punish those who commit crimes. All of 

these objections listed here reflect this fundamental Internet exceptionalist ideology, and as such 

are largely attacks not so much on this particular legislation, but on any legislation that would 

put limits on Internet freedom, even ifit's the freedom to falsely yell "fire!" in a crowded 

theatre. 

Because of their overriding focus on individual freedom and not on collective benefit, critics of 

COICA or similar proposals fail to understand that stronger enforcement of intellectual property 

would be beneficial to the American economy as it faces growing international competition. It is 

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one thing for U.S. companies and workers to compete against companies and workers in other 

nations that play by the rules. It is quite another thing to compete against other nations that 

systematically cheat and steal US intellectual property. 

Conclusion 

Stronger enforcement mechanisms are necessary. Online piracy is no longer a hobby among 

college students trading files in their dorm room, but instead it has grown in to a multi -million 

dollar international business that is leeching jobs and investment out of the American economy. 

Sites hosting pirated content or linking to pirated content can generate a significant amount of 

revenue from online advertising and sales and easil y cover their expenses. The policies that we 

recommend would provide a mechanism to not only cut off access to these sites and impose 

operational barriers, but also cut off their funding mechanisms to make operating online piracy 

sites unprofitable. 

Should we throw out freedom of speech and long-held legal protections like due process just to 

protect intellectual property online? Of course not. But neither should we abandon the 

Constitutional provisions which support protecting intellectual property. Some issues related to 

online infringement are complex and will require more complex solutions. But some of these 

issues are clearly right or wrong. Websites that egregiously violate the law at the expense of 

American consumers and American workers have no place on the Internet. The responsibility for 

maintaining the Internet falls upon each user, each service provider, and each business and 

institution that uses it, operates it, and profits by it. The cost of doing nothing or doing too little 

is high. I encourage you to put in place the frameworks and policies needed to facilitate and 

encourage all actors within the Internet ecosystem to take some measure of responsibility for 

maintaining its integrity and protecting consumers. 

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Endnotes 

1. Robert D. Atkinson. "Comments on the Coordimtion and Strategic Planning of Federal Erforts Against 

Intellectual Property Infringement" Information Technology and Innovation FOlmdation. 2010. 

2. Shayerah Tlias and Tan F. Ferguson, "Intellectual Property Rights and International Trade," Congressional 

Research Service, December 2007. 

3. Shayemh I1ias and Ian Ferb'llSson, "Intellectual Property Rights and IntenIational Trade:' Congressional 

Research Sen'ice. February 5, 2009. 

4. David Price. "An Estilmte ofinfringing Usc ofUle Inteme!." Envisioml (lOll). 

http://doemnents.envisional.eomldoeslEnvisional-Internet .. U sage-J an20 II. pdf. 

5. "Background Report on Digital Piracy of Sporting Events:' Envisional and NetResult. 2008. 

6. While P2P file sharing is dominated by copyright content, some people mistnkenly associate P2P only with file 

sharing Ilcl,\'orks, HO\'\'c\'cr. P2P technology encompasses IIkWy types of applications and sClYiccs [rom the 

Skype-to-Skype dialing procedure to video streaming on mainstream websites like CNN. (Note: Skype is not 

tnlly a P2P application; it omy does session ilutiation by P2P. the rest is a straight UDP session.) 

7. As of November 2009. the Pirate Bay was ranked as 109th and isoHunt was ranked as 187th. "Alexa Top 500 

Global Web Sites." web page. ND. hllp:llwww.alexa.com/topsites/global (accessed NO\·. 28,2(09). 

8. Daniel Castro. Richard Bermct!. and Scoll Andes. "Steal These Policies: Strategies for Reducing Digital 

Piracy." Information Teclmology and ImlOvation Foundation (WashinglOlL DC: 2009). 

hllp:llwww.itif.org/filcs/2009-digital-piracy .pdf. 

9. Result ofauthor's tests on March 10. 2011. 

10. Daniel Castro. Richard Bennett and Scott Andes. "Steal These Policies: Stmtegies for Reducing Digital 

Piracy." Information Technology and Innovation Foundation (Washington. DC: 2(09). 

http://www.itif.org/filesI2009-digital-pirdcy.pdf. 

11. Mary Madden, "The State of Music Omine: Ten Years After Napster," Pew Intemet & Amerie,m Life Project. 

20t19, http://\\ww.pcwinternct.org!ReportsI200919-The-State-of-Music-Onlinc-Tcn-Years-After-Napstcr.aspx. 

12. Eliza Krigmmt "IP Enforcement Policies Stir Censorship Debate," Tech Daily Dose. October 22. 20lO. 

http://techdailydose.nationaljoUfnal.comI20 1011 O/ip-eliforcement -policies-stir -c. php. 

13. Stephen Siwek, "The True Cost of Copyright Industry Piracy to the U.S. Economy." Policv Report 189. The 

Institute for Policy ImlOYation. September 2007. 

1~. Ibid. 

15. IFP!. IFPI 2008 Digital Music Report IFPL 2008. 8. http://www.ifpi.orgicolltelltJIibrdI}'/dmr2008.pdf. 

16. These figures are for direct losses. Stephen Siwek. "The True Cost of Sound Reconding Piracy to the U.S. 

Economy." Policy Report 18S. ine institute for Folicv innovation. September 2007. 

17. Stephen Siwek. "The True Cost of Motion Picture Piracy to the U.S. Economy." Policy Report 186. The 

institute/or FolicI' innovalJon. September 2006. 

18. Business Software Alliance. Sixth Annual BSA-JDC Global Software OS Piracy Study. BSA. May l009. 

http://global.bsa.orgiglobalpiracy2008/studies/globalpiracy2008.pdf. 

19. "Background Report on Digital Piracy of Sporting Events:' Envisional and NetResult. 2008. 

20. Ibid. 

21. InteilIational Intellectual Property Alliance. Special Report 30 I. February. 2009. 

22. Motoko Rich, "Print Books Arc Target of Piracy on the Web," New York Times, May II. 20t19, 

http://www.nytimes.comI2009/05/ll/teclmology/intemetJI2digital.html. 

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23. Randall Stross, "Will Books Be Napsterized'I" New York Times, October 3,2009, 

http://www.nytimcs.comI200YI10/04ibusincss/04digi.html. 

2~. "Traffic Report: Online Piracy and Counterfeiting:' MarkMOlritor. January 20ll. 

25. See Carl Bialik. 'Dubious Origins for Dmgs, and Stats About Them:' Wall Street Joum,,1. September lO, 20lO, 

http://blogs.wsj.comlnumbersguy/dubious-origins-for-drugs-and-stats-about-them-9901 and Randnll W. Lutter, 

"COlUlteIieit Dmgs," Testimony before the House Conmrittee on Goyenunent Refonll. Subcommittee on 

Criminal Justice, Drug Policy, and Human Resources, Nm'cmbcr I, 2005, 

http://wwwJda.govlNewsEventsiTestimony/uemI12670.hlm. 

26. 'Traffic Report: Online Pir-dCY and Counterfeiting," MmkMonitor. January 20ll. 

27. Kevin Le\vis, --The Fake and the Fatal: The Consequences ofCOlmterfeits," The Park Place Economists: T'O/. 

17, 201l9, http://digitalconnnons.iwu.edu/parkplace/voI17/iss I/I~. 

2S. Ibid. 

29. John Teresko "Fighting the IP Wars." induslJ:vll"eek.coJII, Febmary I, 200S. 

http://www.industrywcck.com/articles/fighting_thc_ip_ wars _1 5605.asp". 

30. Shayerah Ilias and Ian F. Fcrguson, "Intclleetlml Property Rights and International Tradc," Congressional 

Research Selvice, December 2007. 

31. "The Tmth About Counterfeiting:' International Anti-Counterfeiting Coalitioll lld. http://www.iace.org/aboutcoullterfeitillg/the-truth-about-colillterfeitillg.php (accessed March lO, 20ll). 

32. For more details. please see Daniel Castro. Richard Bel1l1ett, and Scott Andes. "Steal These Policies: Strategies 

ror Reducing Digitnl Piracy," Inronnation Technology and Innovation Foundntion (Washington, DC: 20(9), 

http://wwwjtif.orglfiics/2009-digital-pimcy .pdT. 

33. "The man who said -bomb' on an airplane:' S,;ll1 Fnmcisco Chronicle. August 6, 2010, 

http://www.sfgate.com/cgi-biniblogs/crime/detail"entry _id~69558 and "Woman accused of airport bomb 

tltreats," United Press InternatioIL'll. April 21, 2008. http://www.upi.com/Top_NewS/2008/0~/21/Womanaceused-of-airpon-bomb-threats/uPI-3852120879~ 7961. 

3~. Riclk1Td Esguerra. "Censorslrip oflhe Intemet Takes Center Stage in 'Online Infringement' BilL" Eicctrorric 

Frontier Foundatioll September 21. 2010, http://www.eff.org/deeplinksI2010/09/censorslrip-internet-takescenter-stage-online. 

35. For example. with regards to the Obama Administrdtion's plans to expand \viretapping online Schneier writes. 

"it's bad civic hygiene to build technologies that could someday be used to faeiliwe a police state." Bruce 

Schneier, '-\Veb snooping is a d,;ll1gerous move," CNN.com, September 29.1010. 

http://www.cm1comI2010/0PINION/09/29/scilneier.web.slllYeiliance/index.hlml. 

"16. Esgllerm, "Censorship of the Internet Takes Center Singe in 'Online Infringement" Bill." 

37. Letter from Public Know!cdge et al. on "S. 380~, Combating Online Infringement and Counlerfeits Act 

(COICA). September 17. 20 10, http://www.publicknowledge.org/files/docs/JointLetterCOICA20 100929.pdf. 

38. Wendy Seltzer, "Copyright, Censorslrip, and Domain Naune Blacklists at Home in the U.S .. " Freedom to 

Tinker, September 2 I. 10 lO. http://www.freedorn-to-tinker.collllblog/wseltLer/copyright -censorslrip-anddOlllain-nallle-blacklists-home-us. 

39. Clifford Levv, "Russia Uses Microsoft to Suppress Dissent," New York Times, September 11,2010, 

http://www.nytimes.eomI2010/09/11IworidJeurope/12r-dids.htmI. 

-+0. Peter Eckersley. "An Open Letter From Internet Engineers to the Senate Judiciary Conmrittee.·' Electronic 

Frontier Foundntion. September 29, 2010, http://www.erCorg/deeplinksI2010/0Y/open-!ctter. 

~ I. Esguerra. "Censorslrip of the Intemet Talces Center Stage in 'Online Infringement' Bill." 

14 
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Castro-15.eps

H. For a more detailed rebuttal of some of the technical fears about COICA see Daniel Castro, "No, COICA Will 

Not Break thc Intcntct," Innovation Policy Blog (2011), http://www.innovationpolicy.org/no-coica-will-notbrealc-the-illtemet. 

~ 1. "The Dangers of S. 1804: Domain Name Sei711res and Blocking Pose Threats to Free Expression. Global 

Internet Freedom, and the Intemet's Open Architecture." Center for Democrocy and Teclmoloh'Y, September 28, 

20 I 0, http://cdt.org/files/pdfs/Leahy_bill_memo.pdf. 

4~. Scc Paul Vixic, 'Taking Back thc DNS," CirelcTD, Jlmc 30, 2010, 

http://www.circleid.com/posts/20100728_ta1cing_back_the_dnsJ. 

15 
61 

Mr. GOODLATTE. Mr. Huntsberry, welcome. 

TESTIMONY OF FREDERICK HUNTSBERRY, 

CHIEF OPERATING OFFICER, PARAMOUNT PICTURES 

Mr. HUNTSBERRY. Thank you, Chairman Goodlatte, Ranking 

Member Watt, and the Members of the Subcommittee for holding 

this important hearing. I am Frederick Huntsberry, Chief Operating Officer at Paramount Pictures, and I appreciate the opportunity to appear before you today. 

I am here to discuss the theft of motion pictures and other American-made products via the Internet, the devastating impact the 

business of theft has on the U.S. economy, and the need for legislation to enforce the rule of law on the Internet. 

An online shadow economy has emerged that operates in parallel 

to our legitimate economy. In this online shadow economy, every 

single film we distribute is stolen and then illegally made available 

online. Other forms of content like TV shows, music, games, books 

and software are also illegally distributed for profit. 

The U.S. film industry creates jobs and tax revenue across America ranging from advertising expenditures to employment at movie 

theatres to retail jobs selling DVDs. But it is often overlooked that 

motion pictures are shot in all 50 States, creating local jobs, supporting local small businesses and generating significant revenue 

and tax dollars all across the country. 

A typical Paramount motion picture will employ anywhere between a few hundred to many thousand American workers. We also 

spend money in States across the country. Last year ‘‘True Grit’’ 

was shot in Texas and New Mexico, adding an estimated $16 million to those local economies. ‘‘The Last Airbender’’ was shot in 

Pennsylvania, adding an estimated $72 million to the local economy. 

Paramount embraces technology, and we believe that consumers 

will increasingly choose to view our films via authorized Internet 

distributors like Netflix and iTunes. Already today, we license our 

films to more than 200 online digital distribution platforms across 

more than 70 countries covering more than 750 films in more than 

25 languages. 

The online illegal shadow economy does not create any American 

jobs. It does not reinvest any revenue in the creation of new films 

or goods. It does not pay taxes and it does not contribute to the 

U.S. economy. Instead, it steals from the U.S. economy and enriches thieves. 

Today an online search for movies leads consumers away from legitimate services by providing results for numerous sites that lead 

the consumer to stolen content. It is so simple and convenient that 

consumers may never know the difference. Some of these websites 

look like legitimate sites, accepting credit cards and displaying ads 

for well-known products. Further examples of these are in my written testimony. 

Let me draw your attention to the screens in the room. Just to 

give you an example how simple it is for a consumer who is looking 

for legitimate ways to stream content online to find illegal content. 

So you can go to Google and type in ‘‘stream,’’ just the word 

‘‘stream,’’ and you will get an auto.fill from Google that says 

62 

‘‘stream movies’’ or ‘‘stream TV shows,’’ as well as a list of websites 

ranked in popularity. 

It turns out all of the websites highlighted in yellow are actually 

pirated websites. We are going to select the first one, 

solarmovie.com. This brings us now to a site that is a search engine 

called solarmovie.com, and this search engine finds pirated content 

on the Internet. 

We can see here movies that have been released over the last few 

weeks, as well as ‘‘Grease.’’ We are going to select now ‘‘The Adjustment Bureau,’’ which was released by Universal last week, and 

then we are brought to a screen where we can see all the 

cyberlockers, meaning the storage websites, where the film is located. We are going to select videoBB.com, and two more clicks 

later, we are actually streaming the movie. 

Within 6 months after Paramount released ‘‘Iron Man 2’’ in theatres, a camcorded copy was available in 12 languages. There have 

been more than 15 million peer-to-peer downloads, and more than 

153,000 Internet links were made available for download or 

streaming. Twenty Internet storage sites, also known as 

cyberlockers, account for 96 percent of all infringing copies of Paramount films found on cyberlocker sites. 

These 20 cyberlockers received a total of 177 million unique 

monthly visitors in February of this year. They use incentive programs to encourage the uploading of stolen copies of motion pictures. These programs pay cash to the person who uploaded the 

content every time their content is downloaded or streamed. Enormous profits can be made in trafficking and stolen motion pictures. 

We estimate that Megaupload, for example, earns an annual 

profit of $40 to $300 million. We have reached the limits of selfhelp. Last year, Paramount sent over 40 million infringement notices, yet the same content is still a few clicks away. 

Legislation focusing on rogue online services is profoundly needed to establish the rule of law on the Internet. Doing so will not 

only benefit the countless American jobs and millions of dollars in 

tax revenue that are currently being lost, but it will also allow the 

Internet to fulfill its full commercial promise. 

Thank you again for affording me the opportunity to present my 

views here today. 

Mr. GOODLATTE. Thank you, Mr. Huntsberry. 

[The prepared statement of Mr. Huntsberry follows:] 

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FH-1.eps

Written Testimony Submitted for the Record of 

Frederick Huntsberry 

Chief Operating Officer, Paramount Pictures Corporation 

on 

"Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites, Part I" 

before the 

House Committee on the Judiciary 

Subcommittee on Intellectual Property, Competition and the Internet 

u.s. House of Representatives 

March 14, 2011 

Thank you Chairman Goodlatte, Ranking Member Watt, and the Members of the Subcommittee for 

holding this important hearing. 

Authorized online distribution of motion pictures via the internet has the potential to be the future of 

entertainment. But if the rule of law is not effectively applied to the internet, the internet also holds the 

potential to decimate the business of producing and distributing motion pictures, in the process 

destroying jobs across all fifty states, eliminating outlets for the expression of creativity, reducing 

American tax revenues, depleting American workers' retirement and health plans, and damaging the 

u.S. balance of trade. 

I am Frederick Huntsberry, Chief Operating Officer at Paramount Pictures Corporation, a division of 

Viacom Inc., and I appreciate the opportunity to appear before you to discuss this issue. As COO, I am 

responsible for our operating divisions, which include Finance, Human Resources, Labor Relations, 

Studio Operations, Information Technology, Sourcing, Business Development, Paramount's Community 

and State Government Relations, Legal, and, of course, Content Protection. Every day I deal with the 

impact that rampant online theft of our content has on Paramount. 

Paramount Pictures is a global creator and distributor of filmed entertainment, with multi-faceted 

divisions including digital, DVD, broadcast and cable television distribution, studio operations, and 

consumer products and recreation. In addition to producing films that are initially released theatrically, 

we also produce content directly for DVD distribution and directly for online distribution. 

Paramount's legendary history dates back to Cecil B. DeMille's silent film The Squaw Man, which was 

the first studio film ever shot in Hollywood. In 1927, Paramount received the very first Academy Award 

for Best Picture, awarded to the World War I drama Wings - the only silent film to win that coveted 
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FH-2.eps

award. Paramount was, for many years, the home of Mae West, the Marx Brothers, Jerry Lewis, Bob 

Hope, and Alfred Hitchcock. 

Over the decades Paramount has created such memorable films as The Godfather, Chinatown, Love 

Story, Breakfast at Tiffany's, White Christmas, Grease, Saturday Night Fever, the Indiana Jones series, 

Star Trek, Ferris Bueller's Day Off, Top Gun, Airplane!, Forrest Gump, Braveheart, Saving Private Ryan, 

The Truman Show, Titanic (with 20Lh Century Fox), and many more. 

Today, Paramount works with the finest in motion picture talent, including JJ Abrams, Michael Bay, the 

Coen brothers, Steven Spielberg, Martin Scorcese, and many more. We launched the hugely 

entertaining Transformers series of films, scared audiences with Paranormal Activity, revitalized the Star 

Trek adventures, brought Justin Bieber to 3D screens, and left George Clooney Up in the Air. 

Films produced or distributed by Paramount this year received more Academy Award nominations than 

any other studio, including ten nominations for True Grit and Best Supporting Actor and Actress awards 

for The Fighter. 

In addition to our own films, we distribute the wonderfully creative films of Dreamworks Animation, 

including How ta Train Your Dragon, Kung Fu Panda, Madagascar, and the saga of Shrek. We also 

distribute Marvel's Iron Man and the upcoming Thor and Captain America. 

The distribution of our films creates jobs and tax revenue in all fifty states - ranging from substantial 

marketing expenditures to employment at movie theaters (including food and beverage sales jobs and 

revenue) to retail jobs involved in the distribution and retail sales of DVDs. 

But it is often overlooked that motion pictures are shot in locations from coast to coast, creating jobs, 

supporting small businesses and generating significant revenue and tax dollars all across the country. 

True Grit was shot in Texas and New Mexico, adding an estimated $16.3 million to those local 

economies; The Last Airbender was shot in Pennsylvania, adding an estimated $72 million to the local 

economy.' 

Those are just two examples. A new version of Footloose has just been filmed in Georgia, The Fighter 

and Shutter Island were both filmed in Massachusetts, She's Out of My League was filmed in 

Pennsylvania, Benjamin Button was filmed in Louisiana (as was much of Forrest Gump); Up In The Air 

was filmed in St. Louis with additional filming days in Detroit, Miami and Las Vegas; Tropic Thunder was 

filmed in Hawaii. 

Those figures include hotel room nights, local crew, local actors and extras, per diem paid to nonlocals, location fees, stage expenses, office rentals and supplies, security expenses, communications 

expenses, equipment rentals, vehicle rentals and transportation expenses, catering and food 

expenses, art department and wardrobe expenditures, construction costs, state and local sales and 

use tax, city wage taxes (Philadelphia), hotel tax, state withholding taxes on resident hires and nonresident hires, and miscellaneous (such as prop expenses, shipping expenses, location scouting, local 

pUblicity, and hair and makeup expenses, among others). 

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The production of a single Paramount motion picture can employ from 100 to 5,000 workers, not 

including extras. [See Attachment 1] For example, a small-budget film like She's Out of My League 

employed 440 workers; a mid-budget film like Shutter Island employed 1,573 workers; a big-budget film 

like Transformers employed 4,654 workers. These numbers reflect only the individuals hired specifically 

to work on the film and do not include the many regular full-time Paramount employees who also work 

on the films, including production employees, post-production employees, accountants, lawyers, human 

resources, and support staff. 

• The Promise of Technoiogy: F'ulfmed or Unfulfilled? 

The motion picture industry is exploring and implementing many new ways to get our content to 

consumers via new media platforms that satisfy consumer desires. We embrace the ultimate transition 

from a hard goods era to a digital delivery era. With that transition comes enormous legitimate business 

risk, but we are not risk adverse. We take a multi-million dollar risk every time we green light a movie. 

Online piracy, however, adds an additional layer of threat which makes that transition extremely 

difficult to manage. 

At Paramount Pictures/ we believe in coming years consumers will increasingly choose to view our 

motion pictures via authorized online and mobile distribution. 

Paramount currently licenses more than 200 online digital distribution platforms across more than 70 

countries covering more than 750 films in more than 25 languages. [See Attachment 2] And we are not 

alone in making our content available to consumers across a wide array of online platforms; consumers 

can now access television shows, music, and books in a variety of exciting new ways.' 

But none of these innovative initiatives can succeed, and the motion industry cannot survive, if the 

current situation is permitted to continue. This is a situation in which stolen copies of every current film 

are available online, in most cases commencing during the very same week in which the film opens in 

theatres. And those stolen copies are often distributed on a revenue-generating basis, diverting 

consumer spending from the creators and legitimate distributors of the content into the hands of 

criminals - often outside the United States - who do not create American jobs, do not reinvest that 

money in creating new productions, and do not pay U.S. taxes on that money. 

I refer to this as the "online shadow economy." 

The same technology that will enable consumers to enjoy motion pictures and other forms of 

copyrighted content in new and exciting ways is being used in the online shadow economy to steal that 

content. Unless the rule of law is effectively applied to online distribution platforms - and it currently is 

not - that technology will not reach its promised potential. The result will be a substantial decrease in 

the number of motion pictures that are produced, which in turn means fewer American jobs, smaller tax 

We are engaged in a collaborative effort with other content producers, software companies, and 

equipment manufacturers on a project called UltraViolet, which will enable consumers to enjoy the 

content they purchase across a variety of devices and locations without the need for making multiple 

purchases. http://www.uvvu.com/ 

3 
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revenues, a decrease in the positive contribution of film exports to the U.S. balance of trade, and a 

substantial narrowing in the type of motion pictures that will be produced. 

@ The Rise of the Online Shadow 

EICOIlOmic 

its Effect on Jobs, amI. its 

Paramount and the other studios' ability to continue creating memorable films is now being jeopardized 

by the alarming rise of a profound online shadow economy. 

This alternative economy is an illegal parallel economy that has developed alongside the legitimate 

economy for the online distribution of our motion pictures. This activity is not limited to feature filmsit blankets all forms of intellectual property, including television productions, music, books, games, 

software, and educational testing materials. And it applies as well to hard goods including apparel, 

handbags, toothpaste, car parts, airline parts, and fake and substandard pharmaceuticals to name a few. 

In this online shadow economy, every single film we distribute is promptly stolen and then illegally made 

available online without creating any jobs, without reinvesting any revenue in the creation of new films, 

without paying taxes, and without contributing to the U.S. economy. Instead, much of that stolen 

revenue merely enriches foreign nationals. 

Until recently, a simple technological barrier provided some degree of insulation for creators and 

distributors of motion pictures from the economic ravages created by the illegal economy: consumers 

could not easily watch stolen content on their living room TV the way they could with DVDs. 

That barrier is now disappearing. New television sets can offer built-in internet access, and internet 

access can be added to all other television sets with a simple and inexpensive plug-and-play interface 

device. [See Attachment 3] Consumers are no longer limited to watching stolen films on computer 

screens. Now, with the wave of a remote control, everyone can have direct access to illegal content on 

their living room television. Moreover, the rise of iPad-style applications will make it even easier to 

bring the iPad experience to your television set. [See Attachment 4a-b] 

We are excited about and embrace the new legitimate distribution models that technology is opening 

up, but we also recognize that those who profit from the online shadow economy will siphon away 

those opportunities if left unchecked. 

While it may be popular in some quarters to blame the victim, claiming that the rise of this parallel 

economy is the fault of content owners because of pricing or distribution patterns, the truth is that no 

business, no matter how innovative, nimble, or creative, can compete with a shadow economy that 

offers consumers high-quality distribution of the exact same goods at no cost or nominal cost. 

The harm caused by the shadow economy inflicts severe damage on the U.S. economy during a time at 

which the country can least afford to bear that harm. Research has indicated that industries nurtured 

and supported by copyright represent approximately 6% of America's GDP - that's nearly $1 trillion a 

4 
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year in business and 5.6 million jobs. When supportive industries are included, that number rises to 

more than $1.5 trillion, which was 11% of GDP in 2006-2007.3 

Certainly those numbers are staggering and I would like to share with you the perspective that I see on 

an operational level at Paramount. 

While box office revenues remain strong - which indicate that we are still creating movies people want 

to see - DVD and other forms of home entertainment sales are declining. Why pay to buy a DVD when 

any film can be streamed online at any time at no cost or nominal cost? And the negative impact is clear. 

Theatrical exhibition contributes roughly 25% of the total revenue of a typical film; DVD contributes 50% 

and television distribution (subscription TV, pay·per·view, and free TV) and online distribution 

contribute 25%. [See Attachment 5] As DVD sales constitute a smaller share of the total revenue of a 

typical picture, the break-even point on the typical picture becomes more remote. Simply put, this 

means that the multi-million dollar investment that studios make in producing and developing films 

cannot be recouped, if ever, until further and further into the distribution chain. [See Attachment 6] 

The number of films being produced has shrunk significantly, particularly with regards to mid-budget 

and independent films. [See Attachment 7] Fewer films means fewer jobs across aliSO states in 

production and in distribution, less tax revenues, and less contributions to workers' health and 

retirement plans' And it means less variety in the types of films that get made - as the studios aim to 

mitigate their losses from piracy, we will see a continued trend towards big·event tent pole and lowbudget films, but far fewer mid-range budget films will be offered to audiences because those films will 

have the smallest odds for breaking even in a world of diminished non-theatrical revenue. 

It is easy to see how even if only a portion of that online shadow economy was returned to the 

legitimate economy, the positive economic impact would be enormous. 

@ The Chronology of a Pirated Film 

With very few exceptions, films enter the illegal economy when they are camcorded in movie theatersoften during the opening week of the film. 

A few years ago, a camcord copy was a shaky, out-of-focus product with a soundtrack obscured by 

rustling popcorn boxes and other crowd noise. Today, in the era of digital camcorders with image 

stabilization and audio tracks copied from the hearing-impaired audio systems present in most theaters, 

camcorded copies are now of extremely high quality. 

Once even a single camcorded copy of a film appears on the internet, it is soon coupled with audio 

tracks in a myriad of languages. 

3 International Intellectual Property Alliance (IIPA) study, June 2009. 

4 The heath care and pension plans for actors, directors, electricians, painters, plasterers, laborers and 

writers are funded in part from residuals paid by the studios based on DVD sales. As those sales 

continue to lose ground, the impact on those plans will be devastating. 

5 
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A few months later when the film is scheduled for release on DVD, a perfect digital copy is ripped from 

the DVD and uploaded onto the internet, replacing the earlier cam corded copies. 5 

Once a single stolen copy appears online, it rapidly becomes entrenched throughout the illegal 

ecosystem. For example, within six months after fRON MAN 2 was first camcorded in a theater, it was 

available in 12 languages, there had been more than 15 million peer-to-peer downloads, and more than 

153,000 links were available in cyberlockers6 for download or streaming. 

This problem is not limited to recent releases; most major library titles from all of the studios are also 

readily available online in perfect digital via copies from DVDs. 

The motion picture studios are taking a broad array of actions in response to illegal online trafficking in 

our films. We deploy technologies which allow responsible online services to filter out illegal content. 

We send take-down notices to responsible online services. We release our films on a wide variety of 

consumer platforms including many legitimate online services. 

But when it comes to rogue services, we lack the tools that could make a difference. The PirateBay 

website is one of the most notorious traffickers in stolen content. Not only do they refuse to filter out 

stolen content, they outright reject - in writing - requests that infringing content be taken down from 

the service. [See Attachment 8.] 

® Access to Stolen Films Is Now a Few Clicks Away 

In the past, accessing a stolen copy of a motion picture required a certain degree of technical sawy and 

often required downloading specialized software. In the past, consumers were fully aware that they 

were accessing unauthorized infringing material. 

Today, an online search for movies leads consumers not to one of the many legitimate online services 

but instead leads them directly to a streaming copy of the stolen film. And, with the widespread 

acceptance of credit cards and PayPal payments, coupled with the widespread presence of 

advertisements for well-known products, consumers may not know the difference and may not realize 

that they are watching stolen content. 

For example, if you type "watch" into Google, as soon as you type "waf' (which could be a search for 

"water") Google auto-fills the search term "watch movies". That search brings up a list of sites 

trafficking in stolen content. [See Attachment 9] The same happens if you type in "stream" (which 

5 The ripping occurs weeks prior to the public release date, taking place as soon as we ship the DVDs 

into the supply chain for distribution to retail outlets. 

Cyberlockers are data storage facilities - equivalent to the hard drive on your computer but accessed 

through an online connection. There are many legitimate uses for cyberlockers - including backing-up 

computer hard drives and facilitating the sharing of large data files. Unfortunately cyberlockers are 

also used for the storage and distribution of stolen copies of motion pictures, music, books, games, 

and software. A motion picture which is stored on a cyberlocker can either be downloaded or 

streamed. 

6 
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FH-7.eps

could be a search for "stream of consciousness"): Google suggests the search term "stream movies" and 

then returns a long list of sites trafficking in stolen content. [See Attachment 10] 

If you click (1" click) on the first site suggested by Google, it brings you to a linking site which looks as 

legitimate as iTunes or Netflix. [See Attachment 11a] When you click on a movie (2,d click) it brings up a 

list of stolen copies of the film accompanied by users' ratings of the quality of the stolen copy. [See 

Attachment 11b] With another click (3,d click), you are then taken to a landing page [See Attachment 

11c]; with another click (4th click) you are taken to the film itself. When you click on the film (5th click) 

the movie begins to stream. [See Attachment 11d] 

With just five clicks following a basic Google search, anyone can be streaming a stolen copy of almost 

any film. And it should be noted that the search term used in Google was not "watch stolen movies", 

t1watch pirated moviesll, t1watch free moviesll• It was merely IIwatch movies}! or IIstream moviesll -

searches which should have returned results for iTunes, Netflix, Amazon, or one of the many legally 

authorized online distribution services.' Instead the search results usher consumers - including 

consumers who are looking to pay for content - into the shadow economy. 

e Traffickers in Stolen Content are Diverting MiHions of Dollars From the 

Legitimate Economy 

Trafficking in stolen content has become big business for criminals. 

Twenty cyberlockers account for 96% of all infringing copies of Paramount films found on all 

cyberlockers. These twenty cyberlockers receive a total of 177 million unique monthly visitors. 

To give an idea of the popularity of these twenty cyberlockers, one (Mega Upload) is currently ranked as 

the 51" most popular website by the Alexa popularity rankings.' By comparison, MySpace is 70th, ESPN 

is 77th, the New York Times is 84th. Even more telling, Netflix is 94th. 

All twenty cyberlockers have used incentive programs to encourage the uploading of stolen copies of 

motion pictures. [See Attachment 12] When one of the twenty discontinued its incentive program in 

response to legal pressure in Germany, its traffic dropped by 30% at the same time the traffic to the 

other nineteen increased by 65%. [See Attachment 13] 

None of the twenty implement the necessary simple technological steps that can be used to filter out 

the distribution of stolen motion pictures. 

The reason is obvious: enormous profits can be made trafficking in stolen motion pictures. A business 

analysis of one of those cyberlockers estimates a minimum annual profit of $41 million to $304 million.' 

7 See Attachment 2 for a sample of those authorized online distribution platforms. 

8 The Alexa ran kings are a form of Neilsen-type rankings for websites based on the number of unique 

visitors to the site. 

9 We arrived at this estimate by assuming that the cyberlocker has merely a 1% to 5% subscription rate 

(the cyberlocker offers a tightly limited free sample of usage beyond which a subscription is 

7 
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FH-8.eps

That is millions of dollars siphoned off from the creators and legitimate distributors of the content, 

siphoned away from employment for American workers. That is millions of dollars on which no u.s. 

taxes are paid, and which undermine the positive u.S. balance of trade in copyrighted content. 

e The PerU to Consumers 

In addition to the loss of American jobs, loss of American tax revenues, and negative impact on the u.S. 

balance of trade, the lack of effective rule of law on the internet poses a threat to consumers. 

Many of the online services that traffic in stolen content can appear indistinguishable from legitimate 

services. [See Attachment 15a-d] The illegal services often accept major credit cards and PayPal [See 

Attachment 16a-c] and show advertising from major well-known brands. [See Attachment 17a-b] This 

creates a four-fold problem: it provides the revenue necessary for the traffickers to continue their 

activity, it leads consumers to believe that the service is legal, it exposes consumers to credit theft, and 

it deprives content owners and legitimate distribution platforms - including Netflix, iTunes, and Amazon 

- of revenue from consumers who are paying for online access to content. 

Consumers are further lured into entering in financial transactions with trafficking online services 

through the unauthorized use of consumer protection logos such as McAfee Secure. [See Attachment 

18] 

In addition to being exposed to credit theft, consumers who engage in transactions with trafficking 

services unknowingly expose their computers to harm from spyware, malware and viruses. The threats 

arise both from downloading and from streaming, despite a perception that streaming is safer. [See 

Attachment 19] 

e The Absence of the Rule of Law 

The Digital Millennium Copyright Act (DMCA) established an effective regime for notice and take-down 

of individual infringing files. However a growing number of illegal sites merely replace removed files 

with new files of the same film, often automatically. 

With any of the trafficking cyberlockers, individual files may come and go, but there is never a moment 

that stolen copies of TRUE GRIT are not accessible. 

This same problem applies to search engines: they will take down tens of thousands of links to 

individual copies of stolen films ("torrents") on the PIRATEBAY.ORG, while continuing to direct traffic to the 

PIRATEBAY.ORG website, which provides access to that never-ending avalanche of stolen files. 

necessary), with a $6 average subscription fee and 83 million monthly unique visitors. We used an 

estimate of 32 million daily ad impressions at $1 - $3 cost-per-thousand-viewers. On the cost side we 

estimated $20 million for bandwidth charges plus $7 million for storage (the two things the 

cyberlockers cannot steal) and $3 million for overhead. At a 1% subscription rate the resulting profit is 

$41 million; at a mere 5% subscription rate the profit is $304 million. [See Attachment 14] 

8 
71 


FH-9.eps

Legislation focusing on rogue online services is desperately needed to establish the rule of law on the 

internet. This is particularly true where rogue services force content owners into an endless process of 

whack-a-mole in fruitless efforts to remove illegal content. Foreign sites often pose an even greater 

challenge because they refuse to comply with obligations under the DMCA and it can be difficult or 

impossible to achieve jurisdiction over them in U.S. courts or in an effective foreign court system. 

In the same way that department stores must cope with losses due to shoplifting, the motion picture 

industry will always be coping with losses due to online theft. But we need the necessary tools to 

address the fact that our all of our films are continually being offered online in the shadow economy. 

And we need search engines, credit providers, ad brokers, and ISPs to shift from an enabling mode to a 

mode of cooperating in thwarting theft. Among those players, we have had varying degrees of 

cooperation, with MasterCard stepping forward with the most positive and aggressive action. It appears 

that it may take legislation to shift many of the other facilitators away from a position of enabling online 

theft. 

From the 1909 Copyright Act to the 1976 Copyright to the DMCA, other countries have looked to the 

U.S. for leadership in innovative copyright legislation that fosters creativity and development while 

protecting content and permitting creators of content to benefit financially from their creations. 

We at Paramount Pictures are constantly being asked in other countries what the U.S. is doing to 

address this problem - particularly in light of the fact that the content industry is so enormously vital to 

U.S. jobs and the U.S. economy. Spain, for example, has recently passed legislation providing for the 

expedited blocking of sites that refuse to remove infringing content. Similar provisions are being 

proposed by Italian regulators, and the UK government is exploring site blocking options. At the EU 

level, the European Commission's review of the EU Enforcement Directive is likely to consider an EUwide requirement on member states to adopt measures to counter online piracy. Rogue service 

legislation would provide an opportunity for the U.S. to add its leading voice in reasserting the rule of 

law on the internet in order to protect content and consumers and to encourage the growth and 

development of both content creation and new delivery systems for online and mobile distribution of 

content. 

Conclusion 

The Copyright Clause of the Constitution (Article I, Section 8) empowers Congress to secure to authors 

and inventors the exclusive rights to their writings and discoveries. Today, those rights are anything but 

secure. 

It is incumbent on Congress to find ways to restrict the online shadow economy and to once again level 

the commercial playing field and secure those rights. 

Doing so will not only benefit the thousands of American jobs and millions of dollars in tax revenue that 

are currently being lost, but it will also allow the internet to fulfill its full commercial promise. 

An apt analogy has been drawn to an earlier moment of transformation in American society. In the 

1950's, the Eisenhower Administration undertook one of the most massive infrastructure projects in our 

nation's history - the creation of the interstate highway system. 

9 
72 


FH-10.eps

The advent of the interstate highway system transformed how we did business, traveled, and conducted 

our daily lives. But unlike the internet of today, the highways were built and operated with a set of 

rational guidelines for users. Speed limits saved lives, weight limits saved maintenance costs. New forms 

of law enforcement, such as the Highway Patrol, were created to ensure that the rules were obeyed. 

The FBI and other law enforcement agencies stepped up efforts to deal with interstate crime. As a 

result, as interstates flourished, so did the economy. Over the course of its first four decades of 

existence, the interstate highway system is reported to have been responsible for fully one-quarter of 

America's productivity growth. 

The internet will not reach its potential for being a vehicle for creativity, for job creation or for revenue 

generation, if the rule of law is not effectively applied. We are at a decision point: are we going to allow 

the illegal economy to flourish, destroy American jobs, gut American tax revenues, undermine the 

health and pension plans of American workers, and restrict creativity? Or are we going to take steps to 

curtail the shadow economy and thereby enable the legitimate economy to compete and thrive on a 

level playing field? 

The internet has the potential to be the future for the motion picture industry or the undoing of that 

future. This is why it is so important that Congress take action now - before irreparable harm is doneto enable legitimate businesses to flourish in the online world creating American jobs and tax revenue 

and expanding choices for consumers. 

10 

FH-11.eps

Number of employees by size of film 

·Peopleemploved: 440 ·PeopleemploVBd: 1.513 ·Peapleemploved: 4.654 

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101 

Mr. GOODLATTE. I will begin the questioning with you and to the 

very point you have raised. Where do you see the motion picture 

industry in 5 years or so, if we don’t anticipate and provide the 

necessary tools to ensure effective online enforcement of IP rights, 

at least within U.S. borders? 

Mr. HUNTSBERRY. Well, I think the future can be described as 

one of less volume and different type of product. If you look at the 

history of this industry, it has been one that was never constrained 


FH-39.eps
102 

by theft or piracy and, therefore, was able to produce as many films 

as the market afforded, the opportunity that was created. 

As a result of the theft that has been going on already over these 

last 5-plus years, we have seen a dramatic reduction in the number 

of films produced. The six major motion picture studios used to 

produce over 200 movies just 5 years ago; we are down now to 140 

movies as of last year. And also the profile of those movies has 

changed, meaning that we are concentrating more and more on 

movies that we believe can at least withstand the pressure that piracy is putting on us. 

That means that movies that are sort of in the mid-budget range, which is sort of a $50-$100 million range, which are dramas with 

a smaller audience, have a very hard time right now reaching audiences. So as I said, we are going to see lower volume going forward 

and we will see more changes in the profile, which means there 

will be less choices offered to consumers. 

Mr. GOODLATTE. Thank you. 

Mr. Sohn, with that in mind, you stated that addressing foreign 

infringement activity required international cooperation. But what 

if the hosting country fails to act, or as in the case of the Piratebay, 

the service hops to another country. 

Why should the U.S. be held hostage to hostile, corrupt or uncooperative foreign interests? Don’t we have the right and responsibility to protect U.S. consumers who are targeted by malicious foreign actors, and shouldn’t we protect U.S. creators who play by the 

rule? 

Mr. SOHN. Sure. And I think we ought to be looking for ways to 

do that. I do think that, as a starting point, though, it is important 

to recognize that actually trying to punish and catch actual bad actors is really the way you get the most bang for the buck. If you 

can do that, you can actually get the problem at its source. 

So we have efforts underway to improve cooperation with other 

countries. There is a chapter on that in ACTA. It is part of the 

IPEC annual report. The IPEC, I think, was here and listed a number of efforts in that area. I think it is essential to pursue that kind 

of international cooperation. In fact, there was a report that 

MarkMonitor put out in January that said that the bulk of digital 

piracy sites are actually based in North America and Western Europe. 

So I think actually a lot can be done cooperating with our known 

trading partners. 

For that category of sites where we can really go through the 

tools on the table and see that they don’t work and that can actually be shown, I think it is worth thinking about whether there are 

narrowly targeted congressional actions that could work. The 

phrase I have heard several times today is ‘‘follow the money,’’ and 

I think that would be a fruitful path to explore. 

Mr. GOODLATTE. Thank you. 

Ms. Pallante, in your opinion, has U.S. copyright law kept pace 

with technology? 

Ms. PALLANTE. Well, I think Congress has done a very good job 

over the last hundred years of catching up to technology, but we 

are rarely out in front of it. And the great thing about this issue 

is that it is a chance for us to ensure, before we go over a cliff, that 

103 

there is a vibrant e-commerce environment so that there are incentives. So it is not just about going after the content that we already 

know is infringing, but, by providing a safe environment, we can 

provide incentives for commerce to flourish. 

Mr. GOODLATTE. You noted that operators of these parasitic 

websites have no real expectation of enforcement. What are the 

most important steps that we might take to put teeth in our enforcement measures? 

Ms. PALLANTE. As we said, we have been talking with a lot of 

stakeholders who have a lot of views on this. But the theme that 

has emerged is that by starving them from financial ties like credit 

card processing and PayPal and advertising revenue, that that 

would go a long way toward reducing the impact. Not all of them 

operate with direct financial motivation, but it would help a lot to 

start there. 

Mr. GOODLATTE. Thank you. 

And, finally, about a dozen years ago, I spent many, many weeks 

in a cramped room—warm, hot room downstairs in this building 

with many of the Internet service providers, many representatives 

of the content community, some companies that had a foot in both 

camps; and we negotiated some of the key provisions, particularly 

the notice and takedown provision of the Digital Millennium Copyright Act, which is, as you know, the principal tool copyright owners have to protect their intellectual property online. It was written 

at a time when relatively few people were connected to the Internet, and those who were generally had a maddeningly slow connection. 

Looking forward, do you think the balance struck in the DMCA 

provides appropriate respect and protection for creative works, or 

do we need to take a another look at it? 

Ms. PALLANTE. Well, that is a big question. 

Mr. GOODLATTE. It is. 

Ms. PALLANTE. I think it always helps when Congress takes a 

look at existing law that relates directly to technology, so we would 

not be afraid of that process. It is an important tool, the takedown, 

and a lot of good companies have built into their business practices 

ways to deal with those. Others don’t. They ignore them. They are 

not set up for them. They are set up so that they have automated 

systems that repost the content immediately through computer 

software. So there is that. And in this context that we are talking 

about today, Chairman, the DMCA doesn’t help with the offshore 

rogue websites. 

Mr. GOODLATTE. Thank you very much. 

The Chair now recognizes the gentleman from North Carolina, 

Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. 

I am not sure exactly where to start here. So many issues. 

Ms. Pallante, let me be clear first, that, although your testimony 

is directed at copyright, are there also similar problems in trademark infringement and other areas and whether you would treat 

those areas the same way as you would in the copyright area? 

Ms. PALLANTE. Thank you for the question. 

Mr. WATT. Or whether there is an impediment to doing that? 

104 

Ms. PALLANTE. There are clearly very important trademark violations and counterfeiting problems relating to drugs, relating to 

toys, and relating generally to consumer products. They were not 

the focus of my testimony because we administer the copyright law 

in my office. 

Mr. WATT. So my point is, whatever system we set up to deal 

with one industry, we probably need to set it up to deal across the 

board, right? 

Ms. PALLANTE. Yes—— 

Mr. WATT. I am trying to cover a lot of territory here. I just want 

to be clear on that. 

Mr. Huntsberry, you described—you gave us these visuals on a 

number of things that you all license, and you have pretty good information about the people who are pirating. There seems to me to 

be a dual track here that has to be being pursued. That is the one 

that is on the criminal side, and one is on the civil side. I thought 

you put up, identified, 18, 20 sites that were doing 80, 90 percent 

of the pirating. What are you all doing on the civil side to pursue 

those, or is there some impediment to doing that? 

Mr. HUNTSBERRY. What we do is we work through the MPAA to 

take action against those sites. 

Mr. WATT. Why is that not an individual business imperative? I 

mean, given the extent of this, you are working through an association to do it, as opposed—— 

Mr. HUNTSBERRY. That is right, because all studios are affected 

by the same sites, typically. 

Mr. WATT. What is the MPAA doing to really aggressive—can 

they bring a lawsuit in the name of—— 

Mr. HUNTSBERRY. In the name of some of the studios, that is correct. 

Mr. WATT. You also put up, identified on the screen the companies that you all license to do this. Is there any way that electronically or technologically you could require before something is 

shown, some kind of discrete identification that would enable it to 

be easier to identify the rogue sites? 

Mr. HUNTSBERRY. Mmh-hmm. 

Mr. WATT. You understand what I am asking? 

Mr. HUNTSBERRY. I do, and I appreciate the question. Because 

the problem that we run into is we find that—— 

Mr. WATT. Somebody would pirate that, too, right? 

Mr. HUNTSBERRY. That is exactly what happens today. In fact, 

McAfee, which is a well-known protective software for consumers, 

their logo is stolen and then used on the pages where the rogue 

sites are asking consumers to subscribe to the site. 

Mr. WATT. There has got to be more than a logo. I am talking 

about some unique identifier of some kind. 

Mr. HUNTSBERRY. Yes, but, again, what happens is whatever you 

flash up can be copied by others. We even have an example where 

a rogue website was luring consumers with a well-known brand 

URL, www.redbox.com, which is a well-known company that licenses legally or that rents DVDs in stores; and they were using 

that brand name to then send consumers to a rogue website. 

Mr. WATT. Maybe in California you see a lot more coverage of 

this, but I have seen very little coverage of any civil litigation 

105 

about this. Am I missing something here? Is that being aggressively pursued? 

Mr. HUNTSBERRY. We are definitely pursuing it wherever we can. 

Absolutely. 

Mr. WATT. It doesn’t seem to be getting much coverage. 

Mr. HUNTSBERRY. Well, many of the sites you also have to remember are outside the United States; and so it becomes more difficult to go after them because there is the question about where 

does the management reside—— 

Mr. WATT. Law enforcement has them—domestic law enforcement has that same impediment going across into another country. 

Mr. HUNTSBERRY. That is part of the issue that we have here 

today, is that we cannot go after the foreign sites. 

Mr. WATT. My time has expired all too quickly. I will go on to 

the next round if we have one. 

Mr. GOODLATTE. The gentlewoman from Florida, Mrs. Adams, is 

recognized for 5 minutes. 

Mrs. ADAMS. Thank you, Mr. Chair. 

Ms. Pallante, I want to thank you for coming and agreeing to 

meet with the stakeholders and everything to investigate this matter. 

Can you give us a sense of the process you have gone through, 

the types of stakeholders you met with, and what themes are 

emerging from those discussions? 

Ms. PALLANTE. Yes, thank you very much for the question. 

In the last month, we have had over 30 meetings with probably 

over 50 stakeholders, really in a fact-gathering approach. We have 

met with everybody from representatives of small authors, book authors, for example, to corporations that are in the music or movie 

businesses. We have met with search engines. We have met with 

ISPs. We have talked to payment processors. So we have really 

tried to cast a wide net. We have also met with ICE, and we have 

met with the FCC. Because there are other government entities 

that come into play on this, and they have very valid perspectives 

that have been quite helpful to us. 

So we are still vetting the issues; and, as I keep saying, they are 

very complex. But, in general, the complexity in the view of most 

stakeholders is not a reason not to approach the issue. In other 

words, just because these technical pirates may be so smart and 

may get around anything that you may enact is not a reason not 

to go down that road. 

Most people do agree that there should be a role for all who benefit in the ecosystem, and there should be a mix of legislative and 

private procedures and practices that come into play to solve it. 

Due process is extremely important, and everybody agrees with 

that, and the remedies should not affect the current doctrines of 

copyright liability. In other words, this is really about remedies. 

Mrs. ADAMS. Search engines, I know you noted that search engines are perhaps the most important player on the online ecosystem and stated search engines have sought algorithms that currently often provide Internet users with search results for rogue 

websites that technology makes—to allow search engines to block 

such sites from paring the search results, much as search engines 

have eliminated child pornography from results. 

106 

So as part of your discussions, has the Copyright Office attempted to engage the search engine community? Do you think it 

might be productive to discuss the adoption of voluntary agreements to address the piracy through either the removal of the illegal sites in search results and/or giving prioritization to authorize 

domains in search results? 

Ms. PALLANTE. I think all voluntary cooperation is a part of this. 

The question is, can the suppression of searches to rogue sites be 

possible technically? Is it viable? Would it ruin the process that 

search engines engage in for good-faith customers and in their 

good-faith business? And we don’t know the answer to the technical 

questions in the Copyright Office, but we think that they need to 

be explored. 

Mrs. ADAMS. You do agree they do need to be explored, correct? 

I think we need to be looking at all avenues to try to at least discourage the rogue sites from popping up so quickly. 

I am curious, and maybe anyone—but what would you see as 

Congress’ role to the new—if they were to grant new authorities to 

the Federal agencies, what resources do you believe they would 

need? 

Mr. HUNTSBERRY. I think what we need is the ability to go after 

foreign rogue sites, first and foremost. 

Mrs. ADAMS. Mr. Castro. 

Ms. CASTRO. I would just echo what has been said here today, 

that it needs to be comprehensive. Too many of these recommendations are only looking at domestic solutions; and piracy, as we 

know, is global. So, yes, it needs to be a global solution. 

Mr. SOHN. In terms of resources I would say it is especially important that law enforcement has the resources to pursue actual 

cases against bad actors and to do the hard work of working with 

other governments to try to pursue entities that are abroad as well. 

I think some of that can be done. I am sure it is resource intensive. 

Mrs. ADAMS. You are grinning. 

Ms. PALLANTE. Yes. I think our law enforcement entities have 

something like 400 Federal laws that they are responsible for enforcing. So, assuming they are doing the absolute best that they 

can, they would need very clear parameters about what they can 

go into court and request a court order for. So could they shut 

down payment processors? Could they ask ISPs to block? They 

would need to know exactly what the parameters of the law were 

before they undertook the resources to go after these kinds of sites. 

Mrs. ADAMS. So very clear and distinction legislative laws, I 

would agree, coming from the law enforcement community. Thank 

you. 

Mr. GOODLATTE. I thank the gentlewoman. 

The gentleman from Michigan, Mr. Conyers, is recognized. 

Mr. CONYERS. Thank you, Chairman Goodlatte. 

This sounds like a 101 in copyright law in which everybody redescribes the problem in their own unique way. But the purpose of 

a hearing is for the witnesses to come to us and give us some recommendations; and, so far, I haven’t gotten one concrete recommendation about what we do. You are all describing the problem. 

107 

And I am disappointed in all the witnesses. I mean, here is a trillion-dollar industry losing billions of dollars every year. The Judiciary Committee holds a hearing, and what do you four come and tell 

us? That this is a big, complicated problem, much of it is offshore, 

so we can’t do anything about it. And the question comes down to, 

when this is all over, we are going to read through this transcript 

and say, what did we learn? 

And I can tell you what I have learned. 

Now let me take the rest of my few minutes and ask you each 

one specifically, starting with Paramount, what do we do in the 

Congress? 

Mr. HUNTSBERRY. Right. So, as I said earlier, we need to have 

the ability for law enforcement to pursue the owners of foreign 

rogue websites. That is one of our biggest hurdles today. These 

sites know exactly how—— 

Mr. CONYERS. You mean you haven’t—you don’t have lawyers 

that have recommended something specific to you? 

Mr. HUNTSBERRY. Oh, sure. But therein lies—— 

Mr. GOODLATTE. Well, why don’t you tell us? 

Mr. HUNTSBERRY. Because therein lies the problem. It is today 

impossible to even discover who the owners are of these sites as 

well as where the sites are served. It becomes very complicated. 

Mr. CONYERS. That is an excuse. That is not answering my question. 

What do you say, Mr. Expert? 

Mr. CASTRO. There are a number of recommendations that we 

have that are very specific about what you can do. 

Mr. CONYERS. Name them. 

Ms. CASTOR. You can block the DNS-level foreign sites and domestic sites that are systematically engaged in piracy. You can require search engines, ad networks, financial service providers to 

stop doing business with these sites. You can create a process for 

the Federal Government to work with industry to identify these 

sites, create a master list of all of these sites. And then with this 

list, once you know where all the rogue sites are, you can work to 

create a culture that rejects piracy. 

As you pointed out, we all know this is a big problem. If we had 

a list and said, here are the top thousand sites that are engaging 

in piracy—everyone in the Internet needs to be involved in doing 

this. You can use a carrot, you can use a stick, you can use a gentleman’s agreement, but you can get it done if you have that list. 

Mr. SOHN. I wish that I had an easy answer for you to solve the 

problems—— 

Mr. CONYERS. I am not looking for an easy answer. 

Mr. SOHN [continuing]. But here is what I would suggest. 

Number one, I think Congress needs to continue the process it 

started with the PRO-IP Act of trying to improve our law enforcement capability, make sure that we are as effective as possible in 

our actual prosecution of bad actors. That requires the hard job of 

working with other countries, and I think Congress has a really important oversight role there. 

I think that it is worth looking at narrowly targeted ways to address situations where we can show that that process can’t work. 

In other words, ordinary law enforcement can’t work. And the apVerDate Aug 31 2005 11:30 Jan 02, 2013 Jkt 000000 PO 00000 Frm 00115 Fmt 6633 Sfmt 6601 H:\WORK\IP\COMBINE\65186.000 HJUD1 PsN: 65186
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proach I would recommend that Congress look at is this follow-themoney approach that has been discussed a couple of times today. 

I think that trying to make sure that rogue websites can’t make 

a profit, can’t turn this into a profitable business enterprise, would 

be an important step. 

Ms. PALLANTE. At this stage, our primary recommendation is exactly that, that you find a way to give enforcement agencies like 

ICE the authority to request a court order to ask payment processors and ad networks to cut off their financial ties to rogue sites. 

Mr. CONYERS. Thank you, Mr. Chairman. I can see why the industry is losing so much money. 

How many times do you think this Committee is going to have 

hearings on this subject in the 112th Congress? 

Well, this may be it. So I thank you, Chairman Goodlatte. 

Mr. GOODLATTE. I thank the gentleman; and the Chair now recognizes the gentleman from New York, Mr. Reed, for 5 minutes. 

Mr. REED. Thank you, Mr. Chairman. 

I am going to go down a path here that Mr. Conyers is kind of 

exploring. When I have looked at this issue, I have looked at it 

from a traditional model of historical thinking that this is a common theft situation and we need to arm our law enforcement with 

the traditional means and methods of enforcing the laws and go 

after those offenders. 

One thing that I have been asking myself recently when looking 

at this issue is, is there something that we are missing that the 

Internet presents to us in a new environment? Is there something 

within the Internet itself, technological protective measures or enforcement measures, we could be arming our law enforcement with 

to go after these offenders? By that, I mean the Chairman in the 

full Committee in his opening comments said something about if 

you are getting into an armed robbery situation you make sure you 

go in and cut off the offender. 

Is there some way that the technology offers us to utilize to go 

after these offending entities that are engaged in this clearly illegal 

activity—we go through the courts, we get the appropriate measures, but is there something that technology can provide to us that 

the law enforcement would be looking for in order to go after the 

offending parties? 

And I guess I will go to the government office to see if—does law 

enforcement have any ideas that could be of assistance to us? 

Ms. PALLANTE. Thank you for the question; and, just to be clear, 

our office is not a law enforcement agency. 

Mr. REED. I understand, but from the government, from your 

dealings with the Department of Justice and whatever. 

Ms. PALLANTE. In the greater government family, the law enforcement piece is obviously the big hammer. It has to be there or 

there is no real expectation of enforcement. The technology has 

really been a huge investment on the part of private rights holders 

based on everything they can do to track infringement, to bring infringement to the attention of ISPs, for example, so that they can 

put takedown notices out there in the hopes that people will comply. 

109 

One interesting question is what responsibility, if any, should 

those who host sites have in employing technology, say filtering 

technology, to weed out infringement as a good corporate citizen? 

Mr. REED. Okay. Any other suggestions? Any other tools that 

could be at our disposal that we are missing, given the nature of 

the Internet and its technological advancement? 

Mr. SOHN. I think, at the end of the day, there are some limits 

to what technology can do. Information technology puts powerful 

tools in the hands of users, and I think in the long run the solution 

here is not going to be so much the users not having the technological capability to reach bad sites, but it is going to be more trying to develop some norms and some deterrents that prevent people 

from using it that way. 

I think technology can play an important role as different entities in the ecosystem try to roll out tools to stop infringement. For 

example, technology can be used to make the DMCA notice and 

takedown processes more effective, more streamlined. 

So I think there is lots of ways that individual entities within the 

system—within the ecosystem, I should say—can be more effective 

in the role they are trying to play. And that can include, for example, YouTube, which has a process right now for trying to identify 

infringing videos when they are uploaded and for allowing rights 

holders to monetize that. 

So I think there are lots of ways that technology can be deployed. 

I think the difficulty is that it is unlikely to be a one-size-fits-all 

technology solution, and it would be difficult for Congress to go 

down the path of trying to mandate particular technologies here. 

This is something that different players have to explore. 

Mr. REED. I guess what I am hearing here—and I don’t mean to 

cut you off; I am running out of time—is we really have two points 

of potential areas to look at this from, the money perspective and 

also from the structure of the Internet perspective. 

Am I clearly understanding? Does anybody disagree with those 

two points of areas where we can step in and potentially attack 

this issue? Are there any other areas out there? 

Mr. HUNTSBERRY. I see it as money and technology. Those are 

the two. 

Mr. REED. Money and technology? 

Mr. HUNTSBERRY. That is right. 

Mr. REED. Does anybody else disagree with that? Okay. 

When we deal with the size of the enforcement mechanisms we 

need, are there any limits that we should be considering on the size 

of the penalties or tools that are at our disposal or should we just 

be fully unlimited? 

Anyone? Ms. Pallante. 

Ms. PALLANTE. Well, one question that has been raised in the 

stakeholder discussions that we have had is whether there will 

ever be enough government resources for the government to pursue 

this as a priority, this being infringement or counterfeiting, for example. So even if the law were changed and it were clear and they 

had more of an ability to cut off the money and to starve these 

rogue websites and get at the offshore operators and to block those 

sites here, the question would still be, would you still be ahead of 

110 

the problem? Or would you still be limited to kind of the really, 

really big, grossly infringing sites? 

And so the question that I think is down the road is whether 

there should be some additional right of private actors to get into 

court on their own without always going through the Department 

of Justice or ICE, for example. And you will hear that from stakeholders as you talk to them. 

Mr. REED. Thank you. I yield back, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. 

The Chair now recognizes the gentleman from California, Mr. 

Berman. 

Mr. BERMAN. Thank you very much, Mr. Chairman. 

Mr. Sohn, one very quick, hopefully, answer to a quick question. 

You write in your testimony CDT recognizes the problem of 

websites that seek to profit by distributing copyrighted material 

without authorization and without paying the lawful rights holders. 

We are having a debate on what you meant. Is it one or the 

other? Or even if they are paying the lawful rights holders, if they 

did it without authorization that is wrong and you oppose it? 

Mr. SOHN. I think all we intended by that phrase was to refer 

to entities that are violating the law because they had not properly 

licensed the material that they are distributing. 

Mr. BERMAN. So paying rights holders what you think is just 

compensation if you don’t have their permission or the license from 

them is still wrong. 

Mr. SOHN. Correct. I was envisioning by that phrase a voluntary 

transaction in which the rights holder is paid a licensing fee that 

the rights holder has agreed to. 

Mr. BERMAN. Mr. Sohn’s testimony, as he says there, acknowledges the problem, talks about solutions that involve the forfeiture 

and blocking of a website as ineffective. His testimony, if you have 

a chance to read it in detail, it is filled with lots of very interesting 

things which you can’t do justice to in 5 minutes. But challenging 

the effectiveness of this approach, raising issues about the potential for encompassing websites that may be doing some infringing 

work but also are exercising non-infringing First Amendment expression raises the philosophical question of the right of U.S. law 

to try and affect behavior by parties in other countries and then 

raises consequences of that approach in terms of cybersecurity and 

inefficiencies in terms of the Internet functioning. 

Mr. Castro, I don’t know if you have read the testimony, but I 

would like to get your reaction to some of the points Mr. Sohn 

raised in his much longer written testimony. 

Ms. CASTOR. Absolutely. And, obviously, in the shortened time, 

if you look at my written testimony, I believe I have addressed all 

of those objections that have been raised. They have been raised in 

a number of forums before. 

If you look at the issue of DNS blocking, which is I think where 

most of the objections have been raised, or blocking even at the IP 

level, DNS blocking is something that is used already today. There 

is a service, for example, called open DNS. People actually subscribe to this service, and this service provides users a number of 

111 

tools like parental controls. It corrects typos and URLs, and it ensures people get to only safe sites. 

We can do something very similar with DNS blocking for rogue 

sites. If you look at the objections that are raised, most of them are 

speculative. If you look at the data, there is none that supports it. 

And if you look at what even the creators of DNS—for example, 

Paul Vixie, he runs ISC, which is the company that creates BIND 

which is a software that actually runs DNS on the computers all 

over the world. He has even come out and said that the idea that 

any site should be able to just have a domain name, if they are a 

rogue site, that you should be able to—the purpose of DNS is not 

to facilitate rogue sites. It is not to facilitate piracy. It is not to facilitate counterfeiting. 

We can change the way these standards are written to respond 

to this. We can create secure DNS protocols that allow for the types 

of controls and mechanisms that we are talking about today that 

would allow you to block rogue sites but still have a very secure, 

even more secure, Internet architecture. 

And that is the result we want. We want a result that protects 

consumers and also gives a secure Internet experience. 

Mr. BERMAN. Mr. Sohn, if I could, well, hopefully, I can get this 

question in. 

The issue of diplomacy and cooperative approaches—if you look 

at Attachment 8 to Mr. Huntsberry’s testimony, which lists reasons 

why Pirate Bay based in Sweden refuses to comply with DMCA 

takedown requests from copyright owners, it says it is not a U.S. 

company and damned if it has to follow U.S. law. It will not comply 

with requests to take down unlawful material and then proceeds to 

call the victims of that theft morons and suggest a number of acts 

which I prefer not to repeat in public. But it is in Attachment 8 

for those who want to read it. 

What do we ask the Government of Sweden to do? And if they 

don’t do it, do we put them on the USTR’s 301 list? Lay out the 

diplomatic strategy that might work in all the remaining time that 

you have. 

Mr. SOHN. Well, I think absolutely. What you try to do is work 

with Swedish authorities to identity the people behind the site and 

actually go after the individuals. That is where you have a real deterrent effect, and that is where you have the ability to seize the 

computer servers that the bad guys are using. 

My understanding is that in a number of ICE actions they have 

done exactly this. They have cooperated with the Netherlands, for 

example, in connection with some of the domain name seizures. 

They have actually taken down some bad guys in cooperation with 

foreign authorities. And I guess—— 

Mr. BERMAN. We have a good example, WikiLeaks. They go after 

them on sexual misconduct charges. 

Mr. SOHN. Ultimately, I think it is very difficult to use the DNS 

system in a way that is going to effectively make these sites inaccessible. That is why I am saying we have to do so the hard work 

of actually trying to get the bad guys. Because I think however 

much we like to use the DNS for that purpose, it is not ultimately 

going to work. 

Mr. BERMAN. I think my time is more than expired. 

112 

Mr. GOODLATTE. I thank the gentleman, very pertinent question. 

The Chair now recognizes the gentleman from Arizona, Mr. 

Quayle for 5 minutes. 

Mr. QUAYLE. Thank you, Mr. Chairman. Thanks to all of you for 

coming. 

Mr. Sohn, during your testimony, you were talking about how we 

shouldn’t be overreaching in any law just to go after a few bad actors. And I found that curious that you said ‘‘a few bad actors.’’ Because if you are basing it on in comparison to everybody who uses 

the Internet I think that might be accurate, but when you are actually basing it on people that are legitimately using copyrighted material, do you still believe that it is just a few bad actors, not a 

large number of people or entities that are doing this? 

Mr. SOHN. Well, it is interesting. I think there are certainly a 

large number of users that engage in infringement. 

There was a recent study that looked at a couple of the top 

BitTorrent sites and found that actually a relatively small number 

of users, on the order of 100, were responsible for uploading the 

large majority of the infringing material that was found there. So 

it does appear that there are some power users who are burning 

up their Internet connection trying to upload pirated stuff day in 

and day out. So I do think that going after some of the worst of 

the worst can make a dent in the problem. 

I also think that is where you send a strong deterrence message 

to everybody else to say, look, you are not as anonymous as you 

think you are. We will go through the effort to track you down, and 

we can shut you down. If we do come after you, there is going to 

be criminal penalties to pay. 

Mr. QUAYLE. Going to the whole shutting-down part, in your testimony you also presented several reasons why domain name seizures would not be 100 percent effective and focused primarily on 

how such a block might be circumvented. Can you gave other examples of situations where authorities should not take action 

against criminals because they can find a way around it? 

Mr. SOHN. I certainly don’t think that a law enforcement action 

has to be 100 percent effective in order to be worth taking. I do 

think, though, that at the outset, when we are talking about what 

new authorities could we create, we would want to at least make 

sure it meets a certain minimum bar of effectiveness. 

And I guess my argument would be not that domain name seizures and blocking are less than 100 percent effective but that it 

is really going to be hardly effective at all, that if you had a graph 

you will see a brief dip and then you will see piracy levels go right 

back up because it is so easy to circumvent for everybody in the 

system. And at the end of the day what I think would happen is, 

if domain name seizures and blocking are something that happens 

on an occasional basis, I don’t think that causes any great consequence. I think if that becomes a mainstream tool of law enforcement, it will lose all of its bite. People will just build other ways 

around the navigation system. 

To use an analogy that Mr. Castro bought up, he said it is kind 

of like taking some of the bad guys’ numbers out of the phonebook. 

It is kind of like that. But, unfortunately, on the Internet there are 

lots of ways to get information. You don’t have to use the 

113 

phonebook. There are lots of navigation opportunities to find out 

how to get to these sites. So just purely on a practical level I think 

it is not a tactic that is effective enough to be worth the risks that 

it causes. 

Mr. QUAYLE. So you don’t have any examples of other laws where 

we can not push for it without 100 percent ability to not having 

a circumvention of that law. 

Mr. SOHN. I think when Congress weighs legislation on a daily 

basis, probably the scrap heap floor is littered with examples where 

we thought of ideas and decided they won’t work. 

Mr. QUAYLE. Thanks. 

Now, Ms. Pallante, I was just wondering, to go back to illegal 

streaming, as technology advances, do you think that illegal 

streaming of copyrighted material is now the primary chosen method to actually use and deliver those copyrighted material over the 

Internet? 

Ms. PALLANTE. I think for some works it will be. I am not sure— 

I am sure Mr. Huntsberry can tell us what the breakdown is between downloading and streaming for movies, for television programming, and for sports streaming. It is very, very big. 

Mr. QUAYLE. And so if that continues to kind of be the wave of 

the future, do you think that it makes sense to actually have a 

lesser penalty for those that illegally stream videos or stream copyrighted content over the Internet rather than those that provided 

them in downloaded form? 

Ms. PALLANTE. Thank you for that question. 

If that is a business model that is a primary way for bad actors 

to pirate material and to make it available without authorization, 

it doesn’t make sense from a policy perspective for that to be a misdemeanor and not a felony, as is the reproduction and distribution 

right under copyright law. 

Mr. QUAYLE. Thank you very much. I yield back. 

Mr. GOODLATTE. The gentleman from Florida, Mr. Deutch, is recognized for 5 minutes. 

Mr. DEUTCH. I thank you, Mr. Chairman. 

Mr. Sohn, you say in your written testimony that quantifying the 

problem is exceedingly difficult, and you point out that parties commissioning studies that show the impact of this type of piracy have 

vested interest in the results, seeming to suggest that perhaps we 

are taking this more seriously than we ought to. 

I guess, Mr. Huntsberry, let me turn to you. Can you speak to 

the vested interest that might exist here and can you talk for a moment about the overall impacts on our economy? 

Mr. HUNTSBERRY. Well, I can tell you that there are a lot of jobs 

at stake and they occur at different levels. So, for one, you have 

the films themselves that, as I said, hire between a few hundred 

up to 5,000 employees to actually produce a movie. And so as volume of films decreases, there is a direct correlation to the number 

of people who are being hired to make those films. 

The second part is that, at a local level, when we produce films 

in the 50 States, we are not spending money in those States, i.e., 

not hiring people in those States. 

And then, finally, also at the studio level, where you have people 

that are in the business of helping to produce those movies, marVerDate Aug 31 2005 11:30 Jan 02, 2013 Jkt 000000 PO 00000 Frm 00121 Fmt 6633 Sfmt 6601 H:\WORK\IP\COMBINE\65186.000 HJUD1 PsN: 65186
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ket, and distribute them, you have a direct impact there as well, 

and we have seen decreases in the last few years. 

Mr. DEUTCH. Mr. Sohn, you can agree that there is no reason for 

us to argue about the relative impact, that this is a vitally important issue we ought to be tackling? 

Mr. SOHN. It is an important issue, and my only point was to try 

to emphasize that I think that some of the specific statistics that 

get thrown around, when the GAO looked at it, the GAO said, we 

can’t really verify any of these statistics. 

Mr. HUNTSBERRY. Congressman, may I add something to that. 

In fact, it plays also to a question that was raised earlier. Last 

year, just Paramount alone, we actually issued 40 million infringement notices. Now infringement notices are specifically targeted at 

peer-to-peer sites or users of peer-to-peer networks who are 

downloading content. So we issue the notice to the ISP, who then 

forwards it to the consumer. 

With respect to cyberlockers, which are the online storage sites, 

we issued 1.5 million takedown notices. That means there were 1.5 

million places where anybody in the world would have been able 

to stream or download the movie. 

Mr. DEUTCH. I want to go back—Mr. Sohn, you point out in your 

written testimony that in 2007, 2008, which is generations ago in 

terms of what we are combating, what we are dealing with now, 

particularly in terms of cyberlockers and video streaming, that 

CDT compiled a music download warning list. 

Now if you agree that the primary focus here ought to be on addressing—focusing the rogue sites so that they can’t make a profit, 

make this a profitable enterprise, which you said earlier, shouldn’t 

we be looking not only at advertising, as you point out, but 

shouldn’t we also be looking at the way that they ultimately do 

make this a profitable venture, which is making people—driving 

traffic to their site? 

Isn’t there an opportunity for the Internet service providers to be 

involved here? Why shouldn’t we be focusing on that component as 

well? Since without those ISPs and without a discussion about the 

various ways that we can ensure that these sites don’t come up and 

we can watch pirated content in one or two clicks, without that, 

these aren’t profitable ventures. Shouldn’t that be a key piece of 

this legislation? 

Mr. SOHN. Well, the hard question there is, what is the role that 

ISPs could play that would be effective? Because, again, the kind 

of DNS blocking that was suggested in the Senate bill last year I 

think just doesn’t have any ultimate effect if you actually track 

through what would likely happen and if you look at the many 

ways to avoid it—— 

Mr. DEUTCH. Let me interrupt you for a second, because I am 

running out of time. 

Instead of—it seems like you are bending over backwards to acknowledge that there are lots of ways to get around efforts that we 

might wish to take in order to make this a less profitable venture. 

Shouldn’t we be looking at it the other way, to come up with the 

technological ways that we can make it more difficult for others to 

access this, as Mr. Castro points out is eminently doable? 

115 

Mr. SOHN. I guess I disagree with Mr. Castro that it is eminently 

doable to make sites hard to reach. If you look at something like 

the WikiLeaks controversy, the lesson is it is very hard on the 

Internet to just make stuff not reachable. That is why I think the 

more effective approach would be to say, if they can’t process payments, for example, if they can’t—— 

Mr. DEUTCH. I understand that part of your testimony. Can you 

get back to the ISPs, please? 

Mr. SOHN. Right. So on the ISPs specifically, I think it is very 

difficult to figure out how ISPs could actually block people from 

getting somewhere in a way that wouldn’t be overbroad and have 

a lot of collateral consequences. 

Mr. DEUTCH. I understand it is difficult. If there is a way that 

it can be done without the collateral damage that you fear, obviously, that should be something we consider. 

Mr. SOHN. I think it is worth considering. I think what Congress 

will probably find as it looks at that is that those collateral damages, if you are looking at it from the ISP level, are difficult. 

Mr. DEUTCH. Thank you. I yield back, Mr. Chair. 

Mr. GOODLATTE. I thank the gentleman. 

The Chair now recognizes the gentlewoman from California, Ms. 

Chu, for 5 minutes. 

Ms. CHU. Thank you, Mr. Chair. 

I wanted to follow up with you, Mr. Huntsberry, about the true 

economic impact of piracy; and the reason I wanted to get more 

deeply into it is I represent a district in Los Angeles County. There 

are many, many jobs that are related to the entertainment industry; and, of course, Paramount Studios are headquartered in Los 

Angeles County. So what happens to you certainly has a great deal 

of impact on my constituents. 

So in your written testimony you talk about the pre-production 

investment by the studio. Taking an award-winning move like 

‘‘True Grit’’ for an example, can you describe the investment for 

this economy? 

Mr. HUNTSBERRY. Sure. As you said, ‘‘True Grit’’ was shot in 

Texas and New Mexico but then also produced in Los Angeles, so 

it had an impact on multiple economies. And in the case of ‘‘True 

Grit,’’ we would have been spending in Texas, New Mexico on hiring local laborers to build sets. That would include carpenters. 

That would include painters. That would include set designers. It 

would include caterers and so forth. In other words, these are literally ten, sometimes hundreds of people that we have to have on 

the set on location to service the production of the movie. And so, 

again, like in the case of ‘‘True Grit,’’ it was an impact of $16 million between those two States alone. That is not accounting for 

what we spent in Los Angeles, which was even more than that. 

Ms. CHU. And I understand residuals from DVD sales are an important part of a compensation package for actors, directors, electricians, painters—— 

Mr. HUNTSBERRY. Absolutely. The guild members, as well as the 

union members, are compensated as a percentage of the revenues 

that we draw from DVD sales or from the sales of the movies in 

general. 

116 

*The information referred to was not received by the Subcommittee at the time this hearing 

was printed. 

Ms. CHU. I understand ‘‘True Grit’’ was officially released on December 22, 2010. How long did it take before the movie was available on line for free? 

Mr. HUNTSBERRY. It turned out that in the case of ‘‘True Grit’’ 

it took about 5 days, and it was a copy of a screener that we had 

sent out to Academy members for the voting. And the screener, by 

the way, was copyright protected. 

Ms. CHU. Thank you. I yield back. 

Mr. GOODLATTE. Thank you. 

The gentlewoman from California, Ms. Lofgren, is recognized for 

5 minutes. 

Ms. LOFGREN. Well, thank you, Mr. Chairman. I have so many 

questions. I hope I can get them out and get answers promptly. 

Mr. Huntsberry, I am wondering, the Senate bill last year would 

have given government the exclusive power to initiate legal actions 

to block domains. Is this satisfactory to you, or do you believe that 

there should be a private right of action to obtain DNS blocking orders? 

Mr. HUNTSBERRY. Well, first of all—— 

Ms. LOFGREN. If you could just say ‘‘yes’’ or ‘‘no,’’ I have only got 

5 minutes. 

Mr. HUNTSBERRY. We don’t know yet. 

Ms. LOFGREN. Okay, you have here 20 slides, and I am wondering, of those, according to your written testimony, it is about 90 

percent of what is of concern was represented in those 20 slides. 

How many lawsuits have been brought against the actors in those 

20 slides? 

Mr. HUNTSBERRY. Against the what? I am sorry. 

Ms. LOFGREN. The actors that you identified in your slides, how 

many lawsuits? 

Mr. HUNTSBERRY. It is not a number that I could quote you here 

right now. But it is a large number. 

Ms. LOFGREN. Could you provide it to me later? 

Mr. HUNTSBERRY. Absolutely.* 

Ms. LOFGREN. Thank you very much. I appreciate it. 

I am wondering about digital locker sites. Do you believe that 

Congress should give the government the right or power to seize 

those domains, even if they comply with the DMCA? 

Mr. HUNTSBERRY. Well, today they don’t comply with the DMCA. 

Ms. LOFGREN. But the question is, if you give the notice in take 

down and they comply, do you think they still ought to be subject 

to—— 

Mr. HUNTSBERRY. If ‘‘complied’’ is defined as that you can no 

longer find stolen content on the site, then yes. 

Ms. LOFGREN. You said in your testimony that, even with DMCA 

takedowns, there is never a moment that stolen copies of ‘‘True 

Grit’’ are not accessible. Is your goal really to make sure that there 

is not available anywhere a stolen copy of ‘‘True Grit?’’ Do you 

think that is achievable? 

Mr. HUNTSBERRY. What we are trying to do, we are trying to 

level the playing field here between the good guys and the bad 

117 

guys. Today, even after 40 million infringement notices and 1.5 

million takedown notices, the film is still available. So what it has 

proven so far is that we are not able simply with these notices to 

bring the problem to a halt. 

Ms. LOFGREN. You know, I do think that we have a problem 

here. And the question I am trying to get at is what is an adequate 

remedy that doesn’t cause collateral damage? And I think about we 

have heard from Hollywood, and that is an extremely important industry for the United States. There is no question about it. I hear 

from my constituency more about software, because there is certainly a theft problem there. But we have gone round and round 

with my software constituents and finally agreed that, although it 

is always wrong to have piracy, not every piracy is a lost sale, because a lot of what is taken would never been sold. It doesn’t mean 

it is right to do it, but it is worth putting a grain of salt, as the 

GAO has done, in terms of the dollar loss. 

Thinking about that, how do we focus on dealing with bad actors 

without avoiding the collateral damages? 

I was listening to some of our freshmen Members about illegal. 

I was designing this scenario in my mind. You have a Tea Party 

website, and they are running without authorization clips of the 

Patriot to inspire those who come to their website, and they are 

also ad supported. Republican candidates are buying ads on the 

site, and they are soliciting funds from people who visit the site, 

and they are also hosting blogs from people who believe in the Tea 

Party principles. 

They have violated the copyright act. They are subject to blockage, if I am reading the Senate bill correctly; and yet there would 

be significant First Amendment collateral damage. 

How would you deal with that, Mr. Sohn, that scenario? 

Mr. SOHN. Well, I think, at a minimum, any step that Congress 

takes here needs a much narrower definition than the Senate bill 

contained about what constitutes a website dedicated to infringing 

activity. The Senate bill used that phrase, ‘‘website dedicated infringing activity,’’ but I fear the actual definition they used was 

much broader than that and could apply to any of a range of sites 

that do a range of things and then happened to get some infringement on them because users post some there. 

Ms. LOFGREN. For example, I notice this is not just foreign nationals. Most of the companies listed on the site are California companies, Google and Netflix and on and on and on, Facebook. 

Facebook has tons of infringing material on it that people have uplifted, and yet I wouldn’t call Facebook a rogue site. And yet I 

think it would be subject to—the entire site, if ICE is to be believed, that whole thing would be taken down, wouldn’t it? 

Mr. SOHN. Well, one certainly hopes that law enforcement would 

not pursue a case like that, but there is no question that—— 

Ms. LOFGREN. Well, are the facts any different? 

Mr. SOHN. And, furthermore, the process for seizures is essentially a one-sided process. So law enforcement decides it wants to 

target a site. It goes in and tells that to the judge. The site can 

get seized without having an opportunity for the site operator to 

come in and say, no, wait a minute, here is why I am actually a 

lawful enterprise and why you’ve got this wrong. And I think 

118 

whenever you have a one-sided process like that, the risk of either 

mistakes or just overaggressive action is significant. 

Ms. LOFGREN. I see that the red light is on, Mr. Chairman. I 

don’t want to abuse your courtesy to me. 

I yield back. 

Mr. GOODLATTE. We may have a question or two more here, and 

so the gentlewoman might hang in. 

Mr. Sohn, as you know, ICE has used authority provided by 

PRO-IP over the past year to seize more than 100 domains that 

judges found were engaged in online IP theft. In every instance, 

the domain name owner had the right to petition a Federal judge 

to require the return of the domain name. Can you tell the Committee how many of these owners have actually filed such a petition and appeared in Federal District Court? 

Mr. SOHN. It is my understanding that nobody has done that to 

date. 

Mr. GOODLATTE. Is that not an indication that seizing domain 

name might be somewhat effective? 

Mr. SOHN. Well, the fact that they haven’t done it could indicate 

a number of things. Number one, it could indicate that some of 

them think that challenging the Federal Government in a lawsuit 

is going to be costly litigation, and some of them may figure it is 

just easier to—— 

Mr. GOODLATTE. Has anyone come forward and said that of these 

100 sites, said, we are right. We have a legitimate complaint that 

our domain name was seized improperly. We are not engaged in facilitating pirated works, yet we don’t want to take on the Federal 

Government because of the cost or other concerns? 

Mr. SOHN. Sir, there are some entities that have publicly said 

that they believe they were wrongly targeted. There were some 

music blogs that said they actually had obtained the material they 

posted from the record labels on a promotional basis. 

There was the example—I guess this is not an intellectual property example, but there was an example just last month of a service called moo.com which shares a domain among 84,000 registrants, as I mentioned in my testimony. And the entire domain 

got seized because, presumably, there were some individual sites 

there that were engaged in that criminal activity, and a number of 

innocent individuals were affected there. So there certainty have 

been cases where innocent individuals have been affected. 

I actually think the real reason that you probably don’t see entities challenging it is, number one, certainly the bulk of them probably are just illegal enterprises and they have an easy way around 

it. They can just go register a domain with a foreign registrar that 

isn’t subject to U.S. jurisdiction. So why bother challenging it when 

you have that easy route around? 

Mr. GOODLATTE. Amongst these 100, have we seen evidence of 

that occurring? 

Mr. SOHN. Absolutely. 

Mr. GOODLATTE. Mr. Castro, what do you have to say in response 

to that? 

Ms. CASTOR. I would say that if the fear is that these sites will 

go abroad that is why exactly why we need to be blocking these 

sites. That is specifically the reason that enforcement mechanisms 

119 

that only target domestic sites and domestic bad actors ultimately 

will be ineffective. You can think of the problem of having four—— 

Mr. GOODLATTE. But what do you say to Mr. Sohn’s contention 

that that is not effective because they simply go and get another 

domain name and keep right on going? 

Ms. CASTOR. Well, I would say this Committee could perform an 

experiment. If you have a domain name that everyone knows, if 

that disappeared for a day, I bet your traffic would disappear as 

well. I don’t think it is that easy for people to find sites when a 

domain that they know and use is gone. 

Mr. GOODLATTE. What do you have to say to that, Mr. Sohn? 

Mr. SOHN. Well, I did a little experiment myself after ICE seized 

I think 10 sports streaming domains back in January. And I was 

curious. By the way, I did not want to engage in piracy on these 

sites. I just wanted to find out if they had resurfaced somewhere. 

So I just did a little bit. It really only took 5 or 10 minutes of 

sleuthing on the Internet, if that, really just a few searches. And 

what I discovered was that there were plenty of people out there 

discussing precisely this issue, people who had various posts and 

comments, various places saying, hey, where did that site go? And 

someone answers the question. Well, it has moved, and it is now 

located at this other foreign top-level domain. 

So what I found was, in looking at those sites, it is actually quite 

easy to figure out where they had gone. And this kind of gets back 

to my point—— 

Mr. GOODLATTE. But no one knows what happened to the volume 

at the site. I understand that the more dedicated person would do 

exactly what you are talking about, and they will find the new domain name and the new address and reach it fairly easily. But the 

more casual customer can’t find the site. Is that having an effect? 

Is that reducing the volume of piracy or is it not? I think that is 

a question I would like to have an answer to. 

Mr. Huntsberry. 

Mr. HUNTSBERRY. Yes, I think that is precisely the point. We 

know that theft is always part of the business model. It is no different than in the brick-and-mortar business. Brick and mortar 

every day has to deal with theft, and so this will also occur in the 

online space. 

What we are trying to do here is level the playing field so at 

least the average consumer is doing the right thing. The bad guys 

will always find ways to find the content. 

Mr. GOODLATTE. What do you and Mr. Castro have to say about 

the collateral damage that Mr. Sohn cited with regard to a domain 

name that is shared and one violator messed up the other 63 or— 

how many? More than 63. You had—— 

Mr. SOHN. There were 84,000 registrations. 

Mr. GOODLATTE. There were 84,000 registrants. 

Mr. CASTRO. What you have to do in this case is you want to 

make sure that there are the right kind of processes in place. This 

is something that this Committee can exactly work on, how can you 

set up the right processes so mistakes aren’t made? Certainly in 

law enforcement this isn’t the first time mistakes were made. This 

won’t be the last time. But the idea that free speech trumps theft 

120 

is I think absolutely ridiculous, and there is no reason we can’t 

take action. 

Mr. GOODLATTE. Thank you. 

Mr. Watt, does that prompt any further questions? 

Mr. WATT. Yes, let me pick up on right there. Because, really, 

the question I was trying to get to, wanted to get to is how can we 

set up a due process mechanism that takes these things into account? What would be the ideal due process mechanism, Mr. Sohn? 

How would you change the current process that ICE is authorized 

or is undertaking? 

Mr. SOHN. The ideal due process mechanism is always to let the 

defendant have his day in court essentially and come in and explain why it is not—— 

Mr. WATT. And what is the problem with doing that, Mr. Castro? 

If I go to a judge and I have got a captive judge and I got all the 

facts and no opportunity for anybody on the other side to respond, 

that says, hey, I am legitimate, I got free speech issues, how do 

those issues ever get raised before the takedown? 

Ms. CASTOR. I think there are a number of things you have to 

keep in mind. If you are talking about domestic sites, you have to 

have processes that can respond in Internet time. You have to 

have, I think—— 

Mr. WATT. Well, you got to tell me what the processes are. That 

is what we are here for. We are trying to set up a mechanism now. 

I don’t mean to be impatient like Mr. Conyers has been, but you 

can’t just tell me, you got to do this, you got to do this. I don’t understand what it is you are asking me to do. 

Ms. CASTOR. I think the right solution would be—— 

Mr. WATT. And while I think I agree with you that most of the 

First Amendment defenses are crap, even though I am probably the 

biggest First Amendment defender on this Committee—or one of 

them at least, I would think—but I am not much on allowing somebody’s property to be taken without some kind of opportunity to defend themselves. I am kind of on both sides of this issue with you 

and Mr. Sohn. 

But you got to tell me how to get around this. If one side can 

go to a judge and get an immediate order, it seems to me that the 

other side could come to that same judge and defend themselves 

immediately. That is Internet fast time, I would take it. 

Are you advocating something different than that? 

Mr. CASTRO. Well, I think there are a number of things you could 

do. Well, one thing you could do is you could set a limit on how 

long to have a site taken down without, you know, the right to a 

appear before a judge. 

Mr. WATT. But once the site is taken down, the damage is done, 

if it’s done wrong. 

Mr. CASTRO. Well, you could do it, a very short site. You could 

have administrative and other kinds of reviews before it could be 

taken down in the first place, and you could also, of course, have 

liability. 

Mr. WATT. Well, that is I am asking you. Are you telling me you 

can’t get an administrative review? What’s a judge? That’s an administrative review. 

Mr. CASTRO. Well, before it’s done internally. 

121 

Mr. WATT. Before it’s done, internally, that is right. Why can’t 

I, as the site owner, have the opportunity to appear and present 

my side at that administrative review? 

Mr. CASTRO. You could certainly do that. 

Mr. WATT. Okay, all right. So you all are saying the same thing, 

then. I mean, that satisfies you, Mr. Sohn? 

Mr. SOHN. I think, that, yes—— 

Mr. WATT. Okay. Then we agree we finally got some reconciliation. It satisfies you, Mr. Huntsberry? 

Mr. HUNTSBERRY. I think I am not prepared yet to agree with 

my colleagues here at this point. 

Mr. WATT. Well, are you disagreeing with them or you just not 

prepared to agree with them? 

Mr. HUNTSBERRY. No, no. I think that, look. I think due process—— 

Mr. WATT. You told Ms. Lofgren that too. You didn’t have an answer to the question. We need you to answer questions here today, 

otherwise we won’t get anywhere. 

Mr. HUNTSBERRY. So, again, the parallel I like to draw here is 

that if a store is selling—— 

Mr. WATT. I don’t want you to draw parallels. I want you to tell 

me how I can do this and give due process, and give you what you 

are looking for at the same time. 

Mr. HUNTSBERRY. I think that once a site has been blocked, I 

think, very quickly, the site owner has the ability to say was it 

done justly or not done justly. 

Mr. WATT. But the blockage of the site for somebody who is legitimate, to give them the opportunity to the next day come back 

and say you really blew this up, you screwed up, I don’t think is 

fair. 

Mr. HUNTSBERRY. But we know today who is stealing our content. It is very obvious to us, because we know exactly who we license to. Therefore any site at which we find our content that we 

do not license is stealing our content. 

Mr. WATT. Even the Facebook Tea Party people that Ms. Lofgren 

described? 

Mr. HUNTSBERRY. Again, if we know our content is on a site that 

we have not licensed to, we know that it is fraud. 

Mr. WATT. Even if it’s the Tea Party people on the Facebook site 

that Ms. Lofgren described that you said you didn’t have an opinion about yet. 

Mr. HUNTSBERRY. And I still don’t have one. 

Mr. WATT. Well, but you just made a very broad statement, anybody who puts something up that you haven’t licensed is violating 

your license. 

Mr. HUNTSBERRY. Yes. Well, that’s true because that is how the 

licensing agreement is reached. It is reached formally between the 

studio and the site, and to the extent that the site has not entered 

into a license—— 

Mr. WATT. So if law enforcement is going to go out and seize that 

site, the Facebook site that Ms. Lofgren described, without a hearing, and without that person, without the Tea Party or whoever it 

is being able to come in and say, this is legitimate First AmendVerDate Aug 31 2005 11:30 Jan 02, 2013 Jkt 000000 PO 00000 Frm 00129 Fmt 6633 Sfmt 6601 H:\WORK\IP\COMBINE\65186.000 HJUD1 PsN: 65186
122 

ment protected, you would say they are violating it and they 

shouldn’t be given that right? 

Mr. HUNTSBERRY. They should absolutely be given the right to 

speak. I think what we are talking about is before—— 

Mr. WATT. But 2 days later you want to be given the right. 

Mr. HUNTSBERRY. Right. To me it should be the day after. 

Mr. WATT. The day after? 

Mr. HUNTSBERRY. It should be after the seizure. 

Mr. WATT. I don’t know about that. Mr. Castro, you wanted to 

make a point. Go ahead. 

Mr. CASTRO. I just wanted to say that if you look at physical 

goods, physical goods are seized before there is court review. So if 

you want to have a similar—— 

Mr. WATT. I wasn’t too hard on that process either. You know, 

I am at least, you know. I try to be consistent. I am not a big preseizure person. I never have thought that it was all left there. Even 

if you are seizing unlawful stuff, you ought to give people an opportunity to tell people that it’s not unlawful. 

Anyway, my time has expired and I am far, far over. 

But I wanted to ask Mr. Huntsberry one other question, and you 

can answer for the record. 

Mr. GOODLATTE. Go ahead. 

Mr. WATT. I am trying to find out what authority you are advocating for on the civil side. I heard you say authorized law enforcement to go do stuff in foreign countries. I need to know what authority you need on the non-law enforcement side that you don’t 

currently have? We don’t have time to have you answer that not 

now. 

Mr. HUNTSBERRY. I will follow up. 

Mr. WATT. You didn’t seem to have a lot of opinions about a lot 

of this stuff anyway, so this will give you a chance to answer some 

of the questions that you haven’t formulated opinions about, and 

that’s one you can spend several days and then get back to us 

about. 

Mr. GOODLATTE. We will afford all the Members of the Subcommittee the opportunity to submit questions in writing, and we 

will afford you an opportunity to respond. Let me see if anyone has 

a question they would like to ask right now. The gentleman from 

Florida. 

Mr. DEUTCH. Thank you, Mr. Chairman. It’s a fascinating conversation about whether or not the government has the right to 

shut down Facebook. 

But I believe that we have gone slightly astray here. Mr. Sohn, 

let me ask you a question. When CDT put out that list of 47 sites 

that were falsely posing as legitimate music stores, which is the 

way your testimony describes it, you put that list together. When 

you put that list out, were you worried that these might be legitimate sites that somehow by an organization like yours putting on 

this list that somehow you might be doing damage to them? 

Mr. SOHN. Well, I will say first we did do due diligence there. 

Mr. DEUTCH. Right. I understand that. You did due diligence. Of 

course you did. 

Would we be wrong to suggest or to believe that there is a difference between something that might get posted on Facebook and 

123 

what SolarMovie does or what a site—a movie site that clearly is 

illegally streaming movies is doing, number one; or a book site that 

is clearly permitting the illegal downloading of copyrighted material; or in the case of music, a site that is clearly permitting the 

illegal downloading of music without respect for the intellectual 

property there. 

Aren’t there instances where, yes, we need to be worried about 

the broader implications and making sure we get it right. But 

aren’t there instances where we ought to have enough, enough 

faith in the Federal Government that they, just like CDT, could get 

it right? 

Mr. SOHN. Well, I think there is a big difference between a private actor taking action and a small group like ours, and the Federal Government taking action. 

Mr. DEUTCH. Right, Mr. Sohn, I agree. Just, Mr. Chair, if I may. 

I agree that there is a difference. And I don’t know about CDT’s 

ability to gather, to do their due diligence before putting out a list. 

But I believe that probably most of us here would acknowledge 

that there is no one who has more resources at their disposal than 

the Federal Government in compiling such a list, number one. 

And number 2, with respect to some of these very specific sites 

where there is nothing except what’s illegal being done, clearly, we 

ought to be in a position to acknowledge that and the Federal Government ought to be in a position to make that determination before moving forward on shutting down that domain there. 

Mr. SOHN. I think whenever you have government action involved you do want to have due process, you want to have some 

procedural guarantees of fairness, and, you know, unfortunately we 

have already seen an example where the Federal Government 

made a mistake here, went after moo.com and there were lots of 

innocent users of that. Why? 

Because they didn’t quite understand that this was a—I think, 

because they didn’t quite understand because this domain was 

shared between many users. So I think any time you don’t have 

due process, there are risks. 

Mr. DEUTCH. Mr. Chairman, just before yielding back. I would 

acknowledge. I would just point out that I think this hearing was 

incredibly helpful in starting to flesh out some of the tough issues 

that we need to grapple with. 

At the same time, I think, also putting us in a position to realize 

that if we grapple with those issues, that we can draft legislation 

that will be respectful of due process, that will build in sufficient 

due process, but will also permit us to protect the intellectual property rights that are being violated every single day. 

I yield back. Thank you. 

Mr. GOODLATTE. Well, said. The gentlewoman from California. 

Ms. LOFGREN. Thank you, Mr. Chairman. I realized that I wanted to ask Ms. Pallante if, you mentioned that you had convened a 

group of stakeholders, a large number, I can’t remember the number you said. 

Could you provide, later, a list of who have those stakeholders 

were that you met with? 

Ms. PALLANTE. Yes, I would be happy to. 

Ms. LOFGREN. Thank you very much. 

124 

You know, I was thinking about the DMCA, and I remember 

very well, Mr. Chairman, I was a freshman, but the years that we 

spent trying to sort through that, and although I don’t think it was 

perfect, by the time we finished it, it was a lot better than it was 

when it started. I mean, the original draft outlawed Web browsing, 

although I don’t think it intended to. 

Now we are being asked for new remedies. The question isn’t 

whether we shouldn’t consider remedies, but whether they are narrowly tailored to deal with a specific problem, and we won’t have 

collateral damage. That’s, I think, one of the big issues. 

And I was interested in, I think, this is a rough, I didn’t write 

down word for word, but that search engines and ISPs should be 

required to prevent access to the bad actors, essentially, that that 

was asserted as something that should happen. 

And in thinking about that, since the bad actors are not a static 

list, I mean, there’s constant movement in the Internet, I am wondering how that squares with the Supreme Court’s decision in the 

Betamax case that basically says that technology is capable of substantial non-infringing users, are not inherently guilty of copyright 

infringement, and really, our position as the government has been 

that we are not going to either shut down non-infringing technologies if they have substantial non-infringing uses, nor are we 

going to go in and do the engineering from the government’s point 

of view of technologies that are in that category. 

How does that precedence square with the assertion that we 

should require ISPs and search engines to block an ever-expanding 

list and technologies that we probably haven’t thought of? Can you 

think of that, Mr. Sohn, how that would work? 

Mr. SOHN. Yes. I think you raise a very good point. There’s a 

long tradition in this country of dealing with Internet service providers and information tools like that in a certain way. We have 

the DMCA that’s addressed that. 

I do think that one risk is that the current legislative process 

could take us into really groundbreaking territory where, you 

know, we toss aside some of our long-standing principles regarding 

how the Internet operates and how ISPs and intermediaries in the 

online context work. 

One of the fears that I have tried to express here is that I think 

that some of those proposals just wouldn’t work anyway. 

So it’s asking us to really do a sea change in a legal approach 

to some of these entities for results that I actually don’t think 

would make much difference in infringement. 

Ms. LOFGREN. One of the things that I think Mr. Deutsche mentioned it and others, the utility of addressing the payment scheme, 

and that intrigues me as an opportunity, because if you do have 

a site where you are getting paid to stream or to download material 

that you don’t have a right to profit from, that is an opportunity, 

you know, it seems to me, to deal with it. 

Visa came in to my office—and I didn’t talk to their representatives, but they talked to my staff last week—and said they are 

watching the Senate bill, that in the last 6 months, they have been 

asked only 30 times. They have got a voluntary system where they 

will block payment for infringing uses, but they have only been 

asked 30 times in the last 6 months to do that. 

125 

So I am wondering how, why would that be, and are we using 

the tools that have already been made available? 

I mean, apparently, they are not very agitated about this bill because they don’t feel it would—I don’t want to speak for them, but 

my impression was they didn’t think it would be a big burden because nobody is asking them to do it now and they are willing to 

do it. 

Maybe you can comment on that, Mr. Huntsberry. Do you know 

why only 30 times would Visa have been asked to block these sites? 

Mr. HUNTSBERRY. No, as a matter of fact, we have been in contact with Visa intensively over the last year, and also I should say 

with MasterCard. And I will say that MasterCard has done amazing steps forward in correcting this situation. 

So we absolutely agree with you that this is a very good area, 

as is, by the way, working with the ad providers, because advertising revenue is another type of revenue that these sites benefit 

from. 

Ms. LOFGREN. I know my time is up. I just would like to make 

one comment that you are right. I mean, you have got counterfeit 

goods. We don’t have a due process issue when you have got counterfeit goods, but you never have a problem usually that counterfeit 

goods could be engaging in First Amendment rights activity. It’s a 

whole different type of risk that we have as a country when we 

move into this. 

And some of the, you know, there is a concept, of fair use in the 

United States. It is possible to use some material and have it be 

protected by the First Amendment. That’s been really not mentioned here today. 

And just a final thought, if we move into designing technology by 

the United States Government, that too will move offshore as we 

know, Mr. Chairman, not all engineers currently live in the United 

States. Not all technology is designed in the United States. 

That’s another collateral issue that we should be discussing and 

mindful of as we continue to discuss this important issue. 

I yield back with that. Thank you. 

Mr. GOODLATTE. I thank the gentlewoman. I thank all the members of the panel. This has been a very good hearing. I agree with 

some of the Members who have said that a number of good ideas 

have been discussed here, a number of good caveats about how to 

make sure how we don’t violate legitimate operators, due process, 

have been brought forward as well, and I would encourage everybody involved here, the Internet service providers, the content owners, everyone, to find as many business model solutions to this 

problem as possible as well, because while it is imperative that this 

Committee act, and I believe that we will act in this area, and the 

Senate is hard at work on this as well, that just like with the 

DMCA, we won’t find all the solutions here. They are going to have 

to be found through the use of technology and through the use of 

better business models to protect intellectual property as well. 

So I thank everybody for their contribution today. We will be 

hard at work at this. This is not our last hearing on this subject. 

We will be working on legislation. 

I would like to thank our witnesses for their testimony today. 

126 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions which we will forward to the witnesses and ask them to respond to as promptly as 

possible so that their answers may be made a part of the record. 

Without objection, all Members will have 5 legislative days to 

submit additional materials for inclusion in the record. 

With that, I again thank the witnesses and adjourn the hearing. 

[Whereupon, at 6:15 p.m., the Subcommittee was adjourned.] 

(127) 

SUBMISSIONS FOR THE RECORD 

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65186C-1.eps

COMMITTEE ON THE JUDICIARY 

SUBCOMMITTEE ON INTELLECTUAL PROPERTY, COMPETITION AND THE 

INTERNET 

"Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites, Part I" 

Statement of Sandra Aistars, Executive Director, Copyright Alliance 

The Copyright Alliance is a coalition of more than 40 organizations representing artists, creators, 

studios, sports leagues, guilds, and labor unions. We are committed to promoting the cultural and 

economic benetlts of copyright, providing infonnation and resources on the contributions of 

copyright, and upholding the contributions of copyright to the t1scal health of this nation and for 

the good of creators, owners and consumers around the world. 

We applaud the Chainnan, and Subcommittee members for holding this series of hearings on the 

important topic of promoting investment and protecting commerce online. Our organization 

unites individuals and industries including, photographers and filmmakers, authors and 

songwriters, videogame developers and musical recording artists, newspaper publishers and 

graphic artists, magazine publishers and TV producers, business software developers and music 

publishers, and broadcasters and sports leab'lles. Our membership spans individual artists and 

creators, as well as the organizations and corporations that support and invest in them. Besides 

the 40 organizations allied as our members, we have more than 7,000 individual "One Voi(c)e 

Artist Advocates" who give of their personal time and creativity to support our work. 

All of these individuals and organizations have chosen to work together because the protection 

and strengthening of copyright is fundamental to our country's creativity, jobs and growth. 

Whether operating as a small business or individual entrepreneur, or working within a larger 

business or corporation, each creative individual who captures an image, writes a song, produces 

an album, films a documentary, writes a software program, publishes or contributes to a novel, 

magazine, newspaper or scholarly journal, orchestrates, plays in or broadcasts a live sporting 

event not only adds to the cultural and educational fabric of our country through his or her work, 

but typically generates employment of dozens, and in many cases hundreds, of additional 

individuals outside the creative sector. 

F or instance: 

A media photographer might hire numerous additional crew members to complete an 

assignment, employ makeup artists, hairdressers, wardrobe stylists, location scouts, 

camera operators, helicopter pilots and helicopters, car hauling transporters, and model 

builders 

A singer songwriter doesn't toil alone, but instead contributes to the economy through 

employing individuals all the way trom additional songwriters, band members (including 

by paying them for practice sessions, performances and recording), crew for set up and 
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strike of shows; and additionally rents rehearsal space, studio space, often pays for 

venues in which to perform, purchases and maintains instruments and other equipment, 

and employs sound engineers, graphic artists, IT professionals, cleaners, and caterers 

All of these inputs to the economy may be exponentially increased and geographically 

dispersed when artists travel for tours. 

To capture a news story networks, newspapers, and magazines often take writers, 

photojournalists, cameramen, and other crew into dangerous and remote locations. Only 

by making investments in the security, transportation, health care and logistic support 

needed to carry out this work are stories such as those surrounding the conflict in 

Afghanistan or the revolutions across the Middle East brought to our TVs, desktops, 

laptops, tablets and morning breakfast tables. See 

htt{!:, b log. cOPJ1'ighraj!iqllc.e, orgfiU 1.U 2 q-ph(ltQgroPJJercsral1<i'-II]J-(fllclcOcc;OlnI111f llitJ'c 

star!!ls-wilh-him 

And much behind the scenes work goes into producing a live event such as the Super 

Bowl or March Madness. The planning and execution requires thousands of man hours 

over more than year and includes behind the scenes work by directors, camera operators, 

graphics artists, audio engineers and the production personnel who put together all the 

interview segments, ensure games are delivered where and when consumers expect to see 

them. The investment in personnel likewise includes everyone from hourly per-diem 

runners to caterers to digital recording operators 

All creative sectors of the economy have long ago moved online, and are at the forefront of 

delivering news, entertainment, and information to consumers in creative, cutting edge fonnats. 

In fact, the success of the Internet and other new media is grounded largely in the availability of 

professionally created films, programs, and creative works. The Tnternet has also benefited from 

technologies developed by and for the creative industries. 

Filmmakers have always been on the front lines of developing new technologies to advance 

the art and science of filmmaking. Examples include groundbreaking work in 3D 

technologies, advances in performance capture and development of new camera technology 

specifically adapted to the needs of visionary directors. Magazine media and newspapers 

have been swept up in a tide of reinvention and experimentation. While the bond between the 

reader and print is as strong as ever, publishers are also experimenting with augmented 

reality (which makes the newspaper or magazine interactive with digital devices), 2D 

barcodes (enabling readers to buy products they see advertised with their smartphones), and 

other emerging technologies to make their work more interactive and to drive readers to 

digital experiences on the web and mobile devices. Publishers are daily creating tabletfriendly content that showcases the enduring qualities of professional journalism: curated 

stories, long-fonn journalism, a strong sense of community, and award-winning photography 

and design. Forward-thinking brands have additionally launched successful books, events, 

retail products, and so much more. See hltp: h/og.coprrifzhla!!iance.org 20 II 02 a·!!ig· 

\I'cck·for-maga:-:incs 
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Motion picture companies are daily releasing their works on virtually every and any 

digital device and fonnat, including in apps and on Facebook, to ensure that consumers 

around the world can receive their content legally, and with additional features and 

functionality, even in cases where the content may not be available in their jurisdiction 

via popular services such as iTunes. See hap:: h/og.corvrighlafliance.org 201l.03sllIckOII-Nell-ind'; and hUe: . No>!. coprrighlaffiaJlce. org 20 II· 03 in-sYJl%c21?6a9-ff1m-ics-ollthe-social-neIH'ork 

The recording industry likewise delivers legal content via innovative services, partnering 

with technology companies. For instance, Sony has recently launched a new subscriptionbased music service, Music Unlimited powered by Qriocity. The service will give 

subscribers access to more than 6 million songs through the cloud-based network used by 

more than 60 million PlayStation gamers. Music Unlimited subscribers can stream 

millions of songs infinitely on Internet-connected devices like personal computers, as 

well as Sony's Playstation 3 game console, Blu-ray Disc player and Bravia televisions 

Fans can also import their personal music collections and iTunes libraries into their 

Qriocity accounts to access all of their music in one place and receive personalized music 

recommendations. 

And some companies, like Atlantic Records are offering web sites so music fans can get 

an insider's view of what goes on at a record company. Atlantic's site features 

memorabilia including Ray Charles' first contract and a vintage ad for an Aretha Franklin 

album, and exclusive videos of artists recording at Atlantic's Studio 1290. Atlantic's acts 

include Led Zeppelin to John Coltrane, Flo Rida to Death Cab for Cutie and the site is 

fully customizable via social networking sites to enhance each visitor's experience. 

Yet despite the Herculean efforts taken by individual entrepreneurs and corporate stake holders 

to bring high quality, professional work to audiences on line, legally, and in virtually any fonnat 

or mode of distribution desired by consumers, individual livelihoods and corporate investments 

alike are jeopardized by relentless battles with rogue site operators who steal the content, and 

redistribute it, often profiting handsomely from the work of artists and creators by monetizing it 

through payment systems, and subsidizing it by advertising 

Numerous studies have been released recently demonstrating the devastating impact of parasitic 

sites on legitimate commerce. 

According to the Organization for Economic Cooperation and Development, 

international trade n counterfeit and pirated physical goods was as high as $250 

billion in 2007; but if the significant volume of online distribution of pirated goods 

via the Internet were included, the total could be "several hundred billion dollars 

more 

Also recently released is research by Envisional, estimating that nearly 25 percent of 

internet traffic consists of pirated copyrighted works. According to the study: 23.8 

percent of global internet traffic is infringing; more than 17 percent of internet traffic 

in the U.S. is infringing; bitTorrents account for around half of the global and U.S. 

infringing traffic; and cyberlockers and infringing video streaming sites also 

contribute significantly. It is notable that this study confinns earlier research by 

Princeton Professor Edward Felten, who is often critical of the creative industries, and 
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his student Sauhard Sahi that approximately 99 percent of content shared on a 

bit Torrent system they surveyed last year was infringing. 

Finally, building on the OEeD's research, Frontier Economics issued a report 

predicting that by 2015, the annual global economic impact of piracy and 

counterfeiting will reach $1.7 trillion and put 2.5 million jobs at risk each year. 

According to Frontier's research the total global economic and social impact of 

counterfeiting and piracy is $775 billion every year. 

See !JJ!!!2.I!J2R. copvrightolliollcl'. Off! 20 II 02ncw-s®!x-J2!Ql'ides:li!IJ).1I}F-derail'C0Il-theip1l)<1ct ~Q[Rita{:j" 

At a time when communities and individuals across the country are struggling to recover from a 

lengthy recession, when not only individual but local, state and Federal budgets are stressed 

beyond measure, these data points demonstrate that the case for combating piracy, and 

improving IP protection and enforcement could not be clearer. 

We applaud the Subcommittee for its focus on this issue, urge the parties participating in the 

hearings to work to address these issues, and stand ready to assist in the Subcommittee's 

consideration of this important topic. 
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STATEMENT OF A. ROBERT PISANO 

PRESIDENT AND CHIEF OPERATING OFFICER 

MOTION PICTURE ASSOCIATION OF AMERICA, INC. 

BEFORE THE HOUSE JUDICIARY COMMITTEE'S 

INTELLECTUAL PROPERTY, COMPETITION, AND THE 

INTERNET SUBCOMMITTEE HEARING: 

"PROMOTING INVESTMENT AND PROTECTING 

COMMERCE ONLINE: LEGITIMATE SITES V. PARASITES, 

PART J" 

RA YBURN HOUSE OFFICE BUILDING, ROOM 2141 

WASHINGTON, D.C. 

MARCH 14,2011,4 P.M. 

A. Background and Introduction 

We want to thank the Committee for the opportunity to submit this Statement 

on behalf of the Motion Picture Association of America, Inc. l and its member 

companies regarding the serious and growing threat of Internet sites that profit 

from the theft and unauthorized dissemination of creative content. As the primary 

voice and advocate for the American motion picture, home video and television 

industries in the u.s. and around the world, we have witnessed the proliferation of 

web-based enterprises dedicated solely to stealing the product of our industry'S 

workforce and are gravely concerned about the detrimental impact that digital theft 

has on the millions of American men and women who work in our industry. 

The U.S. motion picture and television industry plays a unique role in today's 

American economic infrastructure, providing high-paying jobs to workers in all 50 

states; fueling small business groVlrth; injecting capital into local, state, and national 

revenue pool and consistently generating a positive balance of trade. Of the 2.4 

million American workers who depend on the entertainment industry for their jobs, 

about 12% are directly employed in motion picture and television production and 

1 The Motion Picture Association ofAmcnca and Its international counLerpart. the Motion Picture AssocmtlOn (MPA) ser ... e il.':; the voice and 

advocate of the American motion picture, home video and lc1cvislon mdu~1 rics, domestically through lhe MI'AA and mlematlOll::.llly Lhrough the 

MPA Ml'AA members ale Paramount Pictures Corporation. Sony Pictures Entertamment Inc., Tv .. ·entieth Century rox Film Corpordtloll, 

Cn1Versal CIty StUJlOOi LLC. \I/alt Disney SlUdlOS ~'loljoIJ Picture:'., and Warner Bros ElltCIiainment Tne 
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distribution - from behind-the-scenes production teclmicians to make-up artists 

and set-builders - across all 50 states. These are high-paying jobs, paying an 

average salary of nearly $76,000,72 percent higher than the average salary 

nationwide. More than 95,000 small businesses-93 percent of whom employ 

fewer than 10 people-are involved in the production and distribution of movies 

and television. On-location filmed productions infuse, on average, $223,000 per 

day into a local economy. Nationwide, our industry generates more than $15 

billion in public revenue. As one of the few industries that return a positive 

balance of trade, our industry is critical to the u.s. export economy. 

B. Websites Peddling Stolen Digital Content Create Consumer Confusion, 

Harm the Online Marketplace and Damage the Motion Picture and 

Television Industry 

High-speed broadband networks present tremendous opportunities for 

exchanging information and ideas; unfortunately, the laws and regulations put in 

place to protect consumers and innovation in the physical marketplace have not 

kept pace with the growth of illegal conduct online. The illicit use of online 

networks can facilitate the anonymous theft and rapid, ubiquitous illegal 

distribution of copyrighted works. The key foundation of American industry - the 

expectation that hard work and innovation is rewarded - is imperiled when thieves, 

whether online or on the street, are allowed to steal America's creative products 

and enrich themselves along the way. 

Rampant theft of American intellectual property puts the livelihoods of the 

workers who invest time, energy and fortune to create the filmed entertainment 

enjoyed by millions at risk; to these men and women and their families, digital 

theft means declining incomes, lost jobs and reduced health and retirement 

benefits. 

Currently, the most pernicious forms of digital theft occur through the use of 

so-called "rogue" websites. The sites, whose content is hosted and whose 

operators are located throughout the world take many forms, but have in common 

the simple fact that al! materially contribute to, facilitate and/or induce the 

distribution of copyrighted works, such as movies and television programming. 

These websites present a two-pronged threat: They simultaneously weaken 

the film and TV industry by undercutting, eliminating or reducing the market for, 

and thus the financial support for film and television production, which millions 
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rely on for jobs, bringing down the u.s. economy as a whole, and jeopardize the 

cntire online marketplace. Exposing consumers to criminals who routinely pilfer 

personal and financial information from unsuspecting targets puts consumers at 

risk, and ifnot dealt with, will ultimately dissuade consumers from conducting 

legitimate business online. Furthermore, legitimate companies that want to usher 

in new business models and provide high-quality content and more consumer 

choice online have a limited potential for growth when they are forced to compete 

with free content distributed through illicit means. 

Rogue websites typically engage in one or more of the following forms of 

online theft of copyrighted content: 

o Streaming an unauthorized copy of a copyrighted video; 

o Downloading an unauthorized copy ofa copyrighted video; 

o Streaming or downloading of an unauthorized copy of a copyrighted 

video by linking to a torrent or other metadata file that initiates piracy; 

o Linking to a specific offer to sell an unauthorized copy of a copyrighted 

video; 

o Hosting an unauthorized copy of a copyrighted video. 

These rogue websites are increasingly sophisticated in appearance and take 

on many attributes of legitimate content delivery sites, creating additional 

enforcement challenges and feeding consumer confusion. Among the steps taken 

by rogue websites to deceive consumers into believing they are legitimate are: 

o The use of credit card companies, such as Visa and MasterCard, to 

facilitate payments to rogue websites. 

o The usc of "e-wal\et" or alternative payment methods such as PayPal, 

Moneybrokers, AlertPay and Gate2Shop to allow for the receipt of 

payment from the public for subscriptions, donations, purchases and 

memberships. 

o The use of advertising, often for mainstream, Blue Chip companies, on 

the websites. 

o Reward programs for frequent purchasers. 

The impact of this nefarious activity is documented in a recently published 

report by Envisional, an independent Internet consulting company. Envisional's 

"Technical Report: An Estimate ofInfringing Use of the Tnternet" estimatcs that 

almost a quarter (23.8 percent) of global Intcrnet traffic and over 17 percent of 
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U.S. Internet traffic is copyright infringing. This staggering level of theft cannot 

be sustained without significant damage to the motion picture industry and the 

workforce it supports. 

Our studios are not alone in grappling with this threat. According to Deluxe 

Entertainment Services Group, the leading provider of post-production creative 

services for the film industry, hackers from around the world attempt to penetrate 

Deluxe's network 20 million times a month on average - seeking financial gain by 

stealing movies and television content while it is in their possession. Four milliona quarter of the hacker hits - come from Chinese IP addresses. These criminal 

networks are undermining U.S. competition abroad and harming American 

workers. 

Unfortunately, American companies - knowingly or not - often provide the 

financial fuel that enriches the criminals profiting from these rogue sites. Online 

advertisement brokers such as Google's AdSense advertise their clients on these 

sites, paying the website operators for the right to do so. Online pay processors 

and credit card companies similarly operate on these websites, turning a blind eye 

to the willful infringement of copyrights that they are facilitating. Internet service 

providers (ISPs) allow these websites to operate on their networks. Search engines 

present a menu of illicit materials with a few strokes of the keyboard, while 

demonstrating over the past few months that they are, in fact, able and willing to 

change their search algorithms as they see fit. These American businesses are 

contributing to the problem. 

C. Legislative Action and Administration Enforcement Is Effective and 

Necessary to Address the Assault of Online Theft 

We are encouraged by the strong commitment this Committee and this 

Administration have shown to protecting intellectual property and the American 

workers who create it. The positive effects of government's willingness to 

intervene have been palpable: Since U.S. Intellectual Property Enforcement 

Coordinator (IPEC) Victoria Espinel was confirmed by the Senate, we have seen 

increasing cooperation from our partners in the private sector intermediarieswhether pay processors, ad brokers, or ISPs. The combined efforts of the 

Department of Justice, Immigrations and Customs Enforcement (ICE) and the 

Intellectual Property Rights (IPR) Center have not only put numerous rogue sites 

out of business but have raised awareness with the public, deterred bad actors, and 
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resulted in many websites voluntarily ceasing criminal activity or becoming legal 

platforms for online content. 

ICE's "Operation in Our Sites, v .1.0" demonstrates the positive effects of the 

Administration's involvement. Of the top 304 infringing websites that were 

monitored during the 2010 calendar year, including both sites that compile links to 

stolen content and sites that allow unauthorized streaming, nine were seized during 

both phases of "Operation in Our Sites". An additional 81 websites, over one 

quarter of the landscape (26%) voluntarily stopped offering illegal content or 

completely shut down, and of the 8] sites, 12 transitioned to legal movies or TV, 

or became promotional websites that do not offer illegal content. This is a 

significant development and demonstrates the effectiveness and positive impact of 

government intervention to curb illicit behavior. 

Recently, the Office of the IPEC released its first annual report to Congress 

pursuant to the PRO··IP Act and the report reiterated not only the detrimental 

impact of copyright infringement on the economy but also the need to work with 

the Congress to update intellectual propeliy laws to improve law enforcement 

effectiveness. To quote: 

"The digital environment is at its core an economy of intellectual property. 

Digitalization of goods, services, data, ideas and conversations creates 

intrinsically new assets, often built on or derived from assets for which there are 

existing protections. The application of intellectual property rules to the digital 

environment are therefore essential to enabling creators to be rewardedfor their 

work. Lack of intellectual property enforcement in the digital environment. by 

contrast, threatens to destabilize rule-oflaw norms, with severe effects onjobs and 

economic growth. Undermining respect for rule-oflaw values impacts a range of 

other policy goals affected by the Internet (e.g., privac)U.In short, criminal laws 

and intellectual property laws that apply in the physical world are based on a 

tradition of rules, checks and balances that must be applied to and tailored to the 

digital world. ., 

We believe that rogue sites legislation, combined with the Administration's 

work with intermediaries and enforcement by the IPR Center, will go a long way 

towards shutting down the unauthorized distribution of copyrighted works and 

close a gap in the intellectual property law. 

Again, we thank the Committee on behalf of our member companies for the 

opportunity to provide this Statement to underscore the severity of the pernicious 
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threat posed by digital theft to our workers, whose jobs, pensions and benefits are 

most vulnerable to its impact. We look forward to working with you, Chairman 

Goodlatte, Ranking Member Watt, and other members ofthe Subcommittee on 

crafting legislation to deal with this criminal activity. 
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65186E-1.eps

March 14, 2011 

The IIonorable Bob Goodlattc 

Chairman 

House Judicimy Subcommittee on 

IIITI 

National Association of Theatre Owners 

750 First St. NE Suite 1130 

Washington, DC 20002 

(202) 962-0054 

Intellectual Property, Competition and the Internet 

B-352 Rayburn House Office Building 

Washington, DC 20515 

Re: "Promoting Investment and Protecting Commerce Online: Legitimate Sites v. 

Parasites, Part I" 

Dear Chairmml Goodlatte: 

The National Association of Theatre Owners (NATO) respectfully submits this letter in support 

of meaningful legislation that will provide law enforcement with tools to combat the growth of 

counterfeiting and digital theft by illicit wcbsitcs. Wc ask that it be included in the hem·jng 

rccord. 

NATO is the world's leading trade association for motion picture theaters, representing morc 

thml 30,000 movie screens in all 50 states, and additional cinemas in 50 countries worldwide. 

Our membership includes the largcst cinema chains in the world and hundreds of main street 

theater owners. 

Going to the cinema is one of the most popular forms of entertainment throughout thc country. 

Without swift legislative action on Capitol Hill, however, rmnpant online intellectual property 

(IP) theft threatens to underminc thc motion picture business-and virtually all sectors of 

industry. Each year, rogue websites that profit ofIIP stolen from our country's innovative and 

crcative industries undermine the U.S. economy, endanger millions of Americanjobs, and posc 

significaJ1t health and financial safety risks to consumers. 

Movie thealer operators are acutely aware of the increasingly harmful effects that rogue websites 

have on our economy. The illegal online distribution of movics delivered through the Internet 
139 

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across unlimited geographic markets is a devastating problem that costs the exhibition industry 

hundreds of millions of dollars cvery year in lost ticket sales domestically and billions of dollars 

globally. Furthcrmore, the rampant growth of movie then threatens to impact thc incentive of 

movie studios to invest in new fihn productions, thereby threatening the quality and number of 

films available for movie theaters to show, with the ancillary cffcct that would have onjobs in 

thc industry. 

In every state, movie thcater operators are impOitant partners in small and large communitiesurban and rural. Faced with decreased revenues caused by the negative etrects film theft has on 

box otIice and concessions sales, thc movie theater industry--a vital sector of the nation's 

economy-may be forced to lay otT workers and eliminate employee benefits. Furthermore, a 

devastating ripple effect in local economies is spurred by a decline in retail and restaurant traffic 

when neighboring movie theaters are forced to shutter or lose patronage as a result of movie 

theft. Movie theaters are not the only businesses harmed by the infringing activities of rogue 

websites that also profit from a range of counterfeit products, including electronics, lUXury items, 

sports merchandise and pharmaceuticals. 

If rogue websites masquerading as legitimatc retailers sold their illegal goods in brick-andmortar buildings, there is no question that they would be subjcet to criminal penalties and civil 

lawsuits. Since these sites can remain anonymous and operate across multiple national 

boundaries, however, federal officials are hamstrung in their enforcement efforts. That is why it 

is important to enact legislation like thc Combating Online infringement and Counterfeits Act 

(CorCA), which would enable law enforcement authorities to disrupt websites that protit offthe 

innovation and creativity of Amcriean companies and workers. To protect the rights of Internet 

users, this bipartisan measure includes strict protections that ensure only the most egregious 

websites dedicated to the sale or distribution of infringing goods are targeted. 

We encourage lawmakers to work with their colleagues on both sides of the aisle to enact 

balanced II' enforcemcnt legislation that combats rogue websites that threaten American 

ingenuity and undermine the nation's economic growth. 

S7;i 

~~lFean President & CEO 

National Association of Theatre Owners 
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65186F.eps

Letter for Entry into Official Record 

House Judiciary Subcommittee on Intellectual Property, Competition, 

and the Internet 

On behalf of Arts + Labs, an alliance of the technology, content and creative 

communities, we wish to commend the subcommittee's efforts to address the 

growing challenge of protecting intellectual property in the digital age. The 

ability to protect one's intellectual property and enjoy a fair opportunity to earn an 

economic reward for one's creativity has long been key to the innovation that 

drives the U.S. economy. Conversely, threats to intellectual propelty rights, 

especially in the fonn of digital theft, drains valuable resources, billions of dollars 

in revenue and precious jobs from our economy. 

Among those most at risk are independent artists, filmmakers, writers, musicians, 

who simply lack the resources to track down pirates and seek conective action 

under the procedures mapped out by current law. The theft of creative works by 

digital means also jeopardizes tens of thousands of production crews and other 

specialists who work behind the scenes to bring creative arts to the public. When 

a film is pirated or a song is illegally copied, the economic loss lands squarely on 

these individuals in the fonn oflost royalties, lost wages and lost jobs. Add up 

these individual costs, and the cumulative effect deprives the economy of billions 

of dollars every year. At a time when this country is trying to revive the economy, 

restore our employment picture and increase our competitiveness, we cannot 

afford to ignore the growing wave of online piracy. 

Alts+Labs recognizes the difficulty Congress faces in identifying the best way to 

enhance enforcement of copyright and other IP laws, and we are well aware that 

finalizing the details of any enforcement regime will require a careful balance 

among the rights of individual consumers, the interests of individual creators, and 

the responsibilities assigned to private enterprises. But every member of 

Arts+Labs strongly supports your efforts to find an effective and balanced path to 

stronger enforcement. 

We look fOlward to working with the subcommittee and individual members in 

this vital effort. 

Sincerely, 

Michael MCCruTY 

Mark McKinnon 

Chairman, Arts+Labs 

65186G-1.eps

MiMTiD 

The World's l eading Content Protection Company 

Promoting Investment and Protecting Commerce Online: 

legitimate Sites v. Parasites, Part i 

Search Engine inclusion into this new legislation and search engine immediate 

cooperatlorl" with existing law can be the most efficient tool to combat 

Most search engines do not cooperate with existing law. 

MIMnD is the world's largest issuer of DMCA take down notices to 

Search Engines and we have the data. 

"/We u<e!he ,"" DMCA , ...... ,0 . Engine m ....... Seatd> EngIl1e 

MOUnd 10 '''''PO''d'ng ,t> for lnirltlg<nq silts. which (,n t>O:' or _, If ttw,y 'esponI.I at 

'" IIIe 1&9"" "' ... , of II1r<e notke to .. _bINI 1<1 Copyright nave me dm, 

MIMT1D "" 

__ ,,... __ 0_."_

65186G-2.eps

Problem 

• Content is being illegally streamed. downloaded and systematic

monetized, creating lost sales, job loss and future uncertainty. 

Assertion 

• Search Engines are systematically promoting and monetizing 

stolen Intellectual Property. 

- Providing potential customers with immediate access - glob

- Enabling revenue generation through ad networks. 

- Exploiting DMCA construct to avoid removing infringing lin

- Increasing global governmental spheres of influence. 

- Enabling billions of dollars to flow into these businesses. 

SOlution (What we do now.) 

• Notice Search Engines 

- Notice all search engine infringing links. - Notice all ad networks monetizing infringing content. 

- Provide law 

enforcement and lawmakers with access to 

repeat infringing data. 

MIMTlD .... _, ____ _ ._""-

65186G-3.eps

Our Concerns 

• Search Engine Compliance with existing law would reduce the 

Bill's burden on ISPs and others negatively affected . 

The Coogle assertion that the Bill should only affect foreign 

domiciled websites is injudicious. Google; "The Bill should not rewrit

or undermine existing law that works." 

U,UTin c,""..ic .h""c,""Ac ,,( nur " " ..... i .. ..... r .... " .... l .. hr .. o';""" ' ''''''' ,..., ." .. " ... ." ............. .... ' ...,,0, ..... ,,", """" ..... ............... ...... .. 

primarily U.S. and many Foreign domiciled repeat infringing si tes. 

Many of these notices are not actioned for more than forty five days 

and many notices are completely ignored. 

• Immediate compliance with the l aw, removing the infringing 

links from search when noticed and permanently removing 

repeat infringers, would 

eliminate the earnings power of these 

websites dedicated to repeat infringement. 

• Immediate compliance with the law would 

eliminate venture 

capital flows into business models that exploit the loophole 

in the current l aw (DMCA). Approximately $23' billion in 2010 . 

. _,{'II 

MrMTID, .. __ """",, __ 

65186G-4.eps

Make no 

mista

ke, its all about ad

v

e rtising d

oll

a rs. They themselv

a re the 

principal Advertising Network or are participating with th

Ad

vertising 

Netw

orks mon

etizing the infringed cont

e

nt appearin

these rep

e

at infringing sites th

a t are being repe

atidly 

n

otic

ed . 

• Coogle, et 

al must comply with the Law. 

Most agree that the first line of defense against rogue web 

sites is to have the sites completely removed from search results. 

While Congress struggles to strike a balance between creating 

legislation that wit: be effectivE whilst piesE;ving Existing protEctioii

to the vast economy of the internet, the Digital Millennium Copyrigh

Act (DMCA) is being tactically abused by Goog le and others whose 

observance 

of the law would lead to the most effective deterrent 

to the very issues that new legislation seeks to rectify . 

• The new legislation (COICA) must add ress this critical issue to p

the complete destruction of 

U.S. inte llectual property rights and 

related jobs loss. 

- The new law needs to compe l Search Engines to 

remove li nk

websites dedicated to copyrig

ht infringement im

mediately, 

rece ipt of 

notice. 

Coogle. numerous steps and beyond our legal 

Based on the data (o

malned in the MiMTIO Chill1ng Report, thls is a 

purely fantastical statement. 

MrMnD ..... 

____ _ __10"_

65186G-5.eps

Why is this happening? 

How do you find Infringing sites where content IS being stolen? How do most potential consumers locate Infringed content · globally? 

Where does traffic to websltes dedicated to Infringement come from? 

How do websites dedicated to Infringement monetize content? 

Why are the websltes dedicated to infringement In the top Alexa rankings" Who benefits the most from Infringement activity? Who has the most to gain by finding infringing links? Who has the most to lose by removing infrInging links? Who continues to Index the most notorious Infringing sites in the wood? Who continues to monetize content on the most notOOous Infringing sites In the wWho continues to index replacement sites that have been seized? Who continues to monebze content on replacement sites that have been seized? Who regularly exploits Interpretatloo of chapter 5 of the DMCA? 

-Search Engil'\eS 

• Why are billions of dollars flowing Into busmesses that 

will continue to exploit 

this opportunity? 

- Because It is a billion dollar opportunity with very little risk and enonnous upside

ii's. _ ","II" WI\ltaUll p!Opttt)lln 11M '1>UrItrY; SonolatT"", cooum. ... J\to

, IN! is IodIIQ mil of 1te 1u9f<lllamftr of wukh lhlougll theft n pQ(.11n of man/oln

S/I@I!IM .• bIMId I>Olt!Irog abovIlC.-

MtMnD,.,. ......... -..o:-__ 

65186G-6.eps

What tools 

do we ha

ve to help you 

assess and address the 

proble

ms? 

• MiMTIO, on behalf of our customers, sends Search Engines, most notably Google 

hundreds of thousands of notices targeting repeat infringing sites. 

- SearCh Engine Compliance rates are precisely tracked along with the 

Advertising Networks to demonstrate dear financial benefit Search Engines gain 

from websites dedicated to copyright infringement. 

- Advertisers can be messaged through the tAB or directly 

with data. 

- law enforcement can be given tools that enable accuracy and sustainablllty. 

- The vagueness of historical messaging to Lawmakers Is being replaced 

with 

real-time data representin.g criminal, monetary benefits to enable meaningful 

additions to COlCA (The Chilling Report - chillingreport.com). 

- We do not charge for access to t/lis information. 

MIMTlD .............. __ ."--'_ ,-,-,

65186G-7.eps

MTMTTD 

The World's Leading Content Protection Company 

In closing, "existing law that works", as indicated by Google's lette

to the Senate Judiciary Committee, certainly works for Google in that the DMCA term/phrase "remove expeditiously" has no legal definition a

cannot be precisely defined therefore limiting if not eliminating legal 

recourse that as a result is oniy symboiicaiiy afforded to the private se

under the DMCA. 

For a New Law to be effective, it must compel Search Engines to; 

remove search links to Websites Dedicated to Copyright Infringem

and terminate direct and indirect advertising relationships with 

Websites Dedicated to Copyright Infringement immediately, upon 

receipt of notice or court 

orders. 

• We hope we have inspired some new thinking today. • We appreciate you allowing us to present here today. • We look forward to working with YQu and providing you ongoing information, (Precise Data) about this critlccll issue. 

;tdm"""""IJd.com • • (10165],(1165 

M1M1lD ",, __ __ 

65186G-8.eps

THE WORLD'S FIRST COMPREHENSIVE DATABA

SE OF WEBSITES 

DEDICATED TO COPYRIGHT INFRINGEMENT 

Complete forensic record of all activity, 

• Tracks Search Engine Monetary Flows from Repeat Infringing sites• Tracks Search Engine and Other Ad Networks 

• Tracks Repeat Infringing Sites 

• Tra

cks DMCA Compliance 

www.chillingreport.com 

M'MTlD .... 

__ 
149 

f 


65186G-9.eps

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GootIle Doubled!(' .. IuIrrenmedla.rooelwOI"k.com, adbrHu:om, 

predklad.COIll. S"lilCountu.(om, Z"edo.com, fUlClkk.nel, 

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150 


65186H-1.eps

Before the 

U.S House of Representatives Committee on Judiciary 

Subcommittee on Intellectual Property, Competition and the Internet 

Regarding 

"Promoting hlVestment and Protecting Commerce Online: Legitimate Sites v. Parasites, Part I" 

March 14.2011 

Statement ofthe 

ConsUlller Electronics Association 

On behalf ofthe Consumer Electronics Association (CEA), I would like to raise several key 

policy questions and concems for your consideration as the Subcommittee begins to address the issue of 

online commerce and IP infringement in the 112"' Congress We appreciate and thank the Committee for 

their thoughtful deliberation on this important topic. 

CEA is the preeminent trade association promoting gro\\ih in the consumer electronics industry. 

CEA members include product and component manufacturers, internet providers and both small and large 

retailers. Our industry accounts for more than $165 billion in annual domestic sales and directly employs 

approximately 1.9 million United States workers. \\Te support strong intellectual property enforcement 

Indeed, our members' businesses rely on robust and balanced intellectual property law that protects the 

rights of authors and inventors while preserving and encouraging innovation, free expression and 

competition. 

\\Then considering any legislation relating to online commerce and IP infringement it is critically 

important for the scope ofthe language to be specific and finely tailored to the targeted issue. If it is not. 

legitimate commerce may unintentionally be limited and restricted. 

For example, the scope of S.3S04 - Combating Online Infringement and Counterteits Act 

("COICA") - as introduced only in the U.S. Senate in the 111m Congress, was significantly broader than 

its intended purpose of shuttering "'rogue" websites engaging solely in the exchange of infringing content 

or goods. Instead, the legislation as written could have inadvertently subjected lawful domestic retailers, 

consumer electronics manufacturers_ communications storage and dat.:'1-sharing cOlnpanies. to 

unwarranted burdens, expense, litigation, and loss of property. Ifthis Committee were to contemplate 

similar legislation on this topic, then it is the hope ofCEA that the definitions and scope be limited only 

to sites primarily dedicated to infringing activities and that are used only as a means for copyright 

infringement under 17 U.S.c. Section 506 or trademark infringement under 18 U.S.c. Section 2320 

Further. Congress must be careful not to borrow broad definitions relating to civil causes of 

action in other statutes and inject them into a difterent and inappropriate context. For example. 

definitions used in S.3804 would have put at risk any site that could be broadly characterized as '"enabling 

and facilitating" any violation of Section 17 of the United States Code (COICA § 2(a)(l)(B)(i)(I-II)). 

This exceedingly broad detinition, combined with a lack of civil due process. would have 

severely undercut the Supreme Court's landmark Eetamax decision. That decision, commonly referred to 

as the "'Magna Carta of the Innovation Industry," protects technology products with substantial noninfringing uses. TI,e Eelamax holding is crucial to our members' ability to sellnew and innovative 

products without tear of crippling lawsuits. 
151 


65186H-2.eps

Under such a broad definition, ifthe Internet had existed when suit was filed against the Betamax 

VCR in 1976, and adjudicated in 1979 (lawful), 1981 (unlawful), and 1984 (lawful), the web sites of 

retailers selling VCRs on-line could have been subject to seimre from 1976 through 1979, and again from 

October, 1981 until January. 1984. when the Supreme Court finally ruled that offering a VCR for sale was 

not copyright infringement. 

Today, ifCOICA had passed as introduced, a consumer electronics retailer's web site today could 

have been subject to seizure by the Department of Justice because printers and computers for sale on it 

(which are central to the site's activities) could be used to "enable" "violation[s]" of title 17. While the 

targeting oflegitimate eonunerce was undoubtedly not intended by the bill's drafters, S,3804 authorized 

such overreaching and hannfhl actions. Any legislation considered in the 112'h Congress should by all 

means possible protect concepts upheld in the Retamax decision. 

hl addition, while CEA strongly believes that intellectual property rights should be enforced, we 

take issue with legislative language that grants vigilante powers to the private sector. As originally 

drafted, S.3X04 provided complete immunity for domain name registrars and registries. tinancial 

transaction providers, and advertising services, allo\ving them to take vol untary action against an Intenlet 

site ifthe entity "reasonably believes the Internet site is dedicated to infringing activities." As written, 

under this "vigilante provision" a site could be removed from the Internet or othem'ise disabled by private 

actors without an)' Department of Justice or court detennination that the targeted site met any standard of 

infringement. 

Consider this example: a U.S. District Court recently awarded summary judgment to You Tube in 

a lawsuit brought by Viacom in which damages potentially amounting to $1 billion were claimed. Again, 

had COICA passed without change, Viacom arguably would have been empowered to approach a domain 

name registrar with evidence that YouTube was "dedicated to infringing activities" without filing suit and 

the registrar, now hyper-sensitive to such accusations, could have removed YouTube.com from the 

Internet. Under this regime, the registrar would have had full immunity and YouTube no legal recourse. 

Any legislation considered in the II2'h Congress should uphold due process, and monetary remedies 

should be allowed if a site was targeted by mistake or for competitive reasons. 

Lastly. new legislation should tread carefully to avoid the establishment of a new secondary 

liability concept for hllernet companies. S.3804 rclied upon the undefined tenns "enable or facilitate," 

which could have rendered these companies liable for inadvertently "enabling" or "facilitating" the 

conduct ofthird parties. This runs contrary to 13 years of well-settled federal policy under the Digital 

Millennium Copyright Act. Such claims could ensnare legitimate U.S. social media platforms, video 

sharing sites, auction sites. third-party retail sites, grey-market sales sites, and countless sites that are 

overwhelmingly lawful and integral to the U.S. economy 

As the Committee is doubtlessly aware, domain name seimres are a blunt and powerful 

instrument ripe tor misuse in the absence of adequate protections. Late last year. the Department of 

Homeland Security (DHS) seized the domains of alleged "pirate" music sites that included a number of 

legitimate music blogs promoting music with ti,e exprcss pennission of thc copyright owncrs. Last 

month, while targeting a small nnmber of child pornographers, DHS mistakenly took down 84,000 

legitimate sites. many of which were used by small businesses. Such unwarranted government 

confiscation of private property can be best avoided vvith narrow definitions and the assurance of due 

process and adversarial court proceedings before websites are seized. 

As an industry that relies on intellectual property protection. we suffer the damaging effects of 

counterfeit products in intcrnational trade. \Ve are committed to working closely with copyright owners to 
152 

f 


65186H-3.eps

shut down web sites that are truly dedicated to infringement, and we are confident that legislation 

introduced and considered by this Committee in the 112'h Congress can do so without inadvertently 

punishing legitimate U.S. retailers, intemet companies, and manufacturers. 

Respecthllly submitted. 

Michael Petricone 

Senior Vice President. Goverument Affairs 
153 


65186I-1.eps

March 10, 2011 

Representative Bob Goodlatte 

Chairman, Committee on the Judiciary, Subcommittee on Intellectual Property, 

Competition, and the Internet 

U.S. House of Representatives 

Washington, D.C. 

Representative Howard Coble 

Ranking Member, Committee c'n the Judiciary, Subcommittee on Intellectual 

Property, Competition, and the Internet 

U.S. House of Representatives 

Washington, D.C. 

Dear Chainnan Goodlatle, Ranking Member Coble and Members of the 

Committee, 

I am writing on behalf of Canada Goose, an Intemationally recognized Canadian 

apparel company based in Tomnto and deeply concerned about the problem of 

counterfeiting. We have joined forces with the Outdoor Industry Association and 

its members to address this significant problem, as it impacts our brand in the 

United States and around the world. This statement is submitted in anticipation of 

the hearing this coming Monday being hosted by the House Judiciary Committee 

Subcommittee on Intellectual Property, Competition and the Internet on the 

problem of rogue websites. 

Canada Goose manufactures "I wide range of jackets. vests, hats, gloves and 

other cold weather apparel, designed and manufactured to protect Canada 

Goose customers against the most extreme cold weather conditions. All Canada 

Goose jackets are manufadurEld in Canada. The company has buill ils reputation 

on core values of product quality, authenticity and technical innovation. 

We have been aggressively figl1tin9 this battle on a global basis and have taken 

the following steps: 

a listing sites on the Canada Goose homepage that have been 
154 

f 


65186I-2.eps

identified as counterfeiting sites 

o Hired a professional resource to police online counterfeiting 

o Utilizing a hologram label to authenticate our product (very 

expensive and difficult to replicate) 

In addition, I have spoken at numerous conferences on this topic. We are also 

working hard with law enforcement agencies around the world, federal 

policymakers in the United States and Canada and global brands to address this 

important issue. We believe that consumer education is essential and a critical 

part of the solution. We are grateful to see the U.S. Congress taking action, as 

counterfeiting is a global issue that hurts consumers and businesses, large and 

small. 

We look forward to continuing these important discussions in this respected 

forum. 

Sincerely, 

Kevin Spreekmeester 

Vice President of Global Marketing 

Canada Goose 
(155) 

PROMOTING INVESTMENT AND PROTECTING 

COMMERCE ONLINE: LEGITIMATE SITES V. 

PARASITES (PART II) 

WEDNESDAY, APRIL 6, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INTELLECTUAL PROPERTY,

COMPETITION, AND THE INTERNET, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:49 a.m., in room 

2141, Rayburn Office Building, the Honorable Bob Goodlatte 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Goodlatte, Smith, Quayle, Coble, 

Chabot, Issa, Jordan, Poe, Marino, Adams, Watt, Conyers, Berman, 

Chu, Deutch, Sa ́nchez, Wasserman Schultz, Lofgren, Jackson Lee, 

and Waters. 

Staff present: (Majority) David Whitney, Counsel; Olivia Lee, 

Clerk; and (Minority) Stephanie Moore, Subcommittee Chief Counsel. 

Mr. GOODLATTE. Good morning. The Subcommittee on Intellectual Property, Competition, and the Internet will come to order. 

And I will recognize myself for an opening statement. 

Today’s hearing is the second of two oversight hearings the Subcommittee will conduct to examine issues that surround digital 

theft and online counterfeiting. 

At our first hearing on March 14, we received testimony from the 

Acting Register of Copyrights, a representative from the Center for 

Democracy and Technology, a representative from the Information 

Technology and Innovation Foundation, and the Chief Operating 

Officer of Paramount Pictures. While there was disagreement as to 

solutions, each witness affirmed the importance of protecting intellectual property online. They also acknowledged the need to ensure 

that whatever legislation Congress considers is appropriately balanced and takes into account the views of a variety of stakeholders. 

In discussing the first hearing, I want to take a moment to clarify a point that arose and that we may revisit today. The seizure 

process for IP crimes committed within the jurisdiction of the 

United States is current law. It was enacted as part of the PROIP Act that this Committee originated and passed on a bipartisan 

basis several years ago. That process utilized by the Government 

is the remedy for infringing sites over which the U.S. can bring a 

seizure action. This includes, for instance, domestic and foreign 

156 

sites that are registered on the dot com and dot net top level domains. 

The purpose of these hearings is in a broad sense to examine current and anticipated threats to IP online. As part of that inquiry, 

we are looking into the adequacy of existing laws that were enacted 

to protect investment and promote creativity online. Foreign-based 

and foreign-registered infringing sites are not reachable by U.S. authorities. Yet, the Internet enables criminals anywhere in the 

world to defraud and jeopardize U.S. consumers while generating 

revenue from U.S.-based businesses. 

Any legislation that grants new authority to protect Americans 

and deny access to our market to wholly foreign parasites will not 

be based on our seizure laws and processes. That is because there 

is no property such as a server or a domain name in the U.S. to 

be seized. 

However, it has become increasingly clear that new tools are, indeed, necessary to meet the growing levels of theft online. Online 

theft significantly impacts the music, movie, software, digital book, 

and other industries that are increasingly moving to digital delivery of goods and services. 

However, it is not limited to these industries. Indeed, it also impacts traditional manufacturers. I hold in my hands a real and a 

knock-off Vibram shoe. I challenge anyone to tell me which one is 

real. They both have the toes that you all are familiar with. And 

these fake goods, along with even more dangerous goods, like fake 

medicine, car parts, and others, are being sold illegally online and 

shipped directly to consumers in the U.S. 

These foreign sites go to great lengths to make their illegitimate 

goods appear legitimate, including promoting the logos of financial 

services companies, hosting advertising on their sites from legitimate companies, and even charging close to the same prices for 

fake goods that the lawful owner charges. We must aggressively 

combat this theft. 

Today we will receive testimony from an outstanding panel of 

witnesses. First, ICE Director John Morton is here to describe the 

critical role his agency plays in combating IP theft in the physical 

world and on the Internet. Director Morton will discuss the important role of the IPR Center which brings together 17 key domestic 

and foreign investigative agencies to leverage resources, skills, and 

authorities in order to provide a comprehensive response to IP 

theft. 

He will also describe the Operation in Our Sites initiative, a law 

enforcement operation that uses the authority contained in PROIP to target websites used to sell counterfeit goods or distribute pirated merchandise and copyrighted digital materials. Since June 

2010, this high visibility and labor-intensive operation has executed judicially authorized search warrants and resulted in the seizure of 119 domain names as part of ongoing criminal investigations. According to the Motion Picture Association of America, the 

seizure of nine sites that trafficked in infringing movies and TV 

programs in the first operation had a huge deterrent effect and resulted in the voluntary suspension of 81 of the 300 most active pirate websites. 

157 

Our second witness, Floyd Abrams, is one of our Nation’s leading 

authorities on the First Amendment. Appearing on his behalf, Mr. 

Abrams refutes the suggestion that the Internet, while free, should 

also be lawless. 

Our third witness is Kent Walker, the Senior Vice President and 

General Counsel of Google. Best known for its interactive search 

function, Google is the dominant player in web-based advertising 

and applications and it is increasing its market share in Internetenabled mobile devices. Mr. Walker states Google leads the industry in helping to combat copyright infringement and the sale of 

counterfeit goods online. To their credit, Google has taken positive 

steps such as developing the content ID technology it uses on its 

YouTube platform. Google has also announced the intention of taking additional steps to improve copyright enforcement online. 

That said, the question is isn’t so much what Google has done 

as much as it is what Google ought to do. Many rightsholders have 

serious questions about Google’s willingness to cooperate in a 

meaningful way. Among their concerns, they note the revenue that 

flows from Google’s ad networks to unlicensed sites that are clearly 

infringing, the prominent posting of infringing files on Google’s 

blogspot which is hosted on Google-owned servers, and the time it 

takes for Google to comply or even respond to DMCA notice and 

takedown requests. 

Time will not permit a complete discussion of all of these concerns with Mr. Walker today, but I will appreciate his public and 

personal commitment to myself and the other Members of this Subcommittee to work closely with us to respond fully and promptly 

to any further questions we have that we might forward after today’s hearing. 

Our final witness is Christine Jones who serves as the Executive 

Vice President and General Counsel of the Go Daddy Group. As the 

world’s largest registrar of domain names and a hosting provider, 

Go Daddy maintains a large, 24/7 abuse department whose mission 

it is to preserve the integrity and safety of Go Daddy’s network by 

investigating and shutting down websites and domain names engaged in illegal activities. Go Daddy’s policy is to immediately investigate complaints that a customer is engaged in unlawful online 

activity and to permanently suspend services to any domain name, 

website, or registrant they conclude is engaged in illegal activity. 

Go Daddy voluntarily and permanently suspends support for all 

the parasites associated with such a customer’s account. 

Ms. Jones has several specific recommendations on steps we can 

take to make the Internet a safer and more trustworthy place for 

consumers and owners of valuable IP. 

In my own estimation, the need to fashion new tools to more effectively and meaningfully combat digital theft and online counterfeiting is beyond reasoned discussion. The most serious questions 

relate to the scope of appropriate relief and the balance of interests 

among stakeholders and the public. 

In addition, I want to note that this is the furthest thing from 

censorship. A civilized society respects property and promotes lawful individual expression whether it occurs online or in the public 

square. This hearing is another important step in advancing the 

public debate and enhancing the ability of our members to assess 

158 

the true character and impact of criminal infringement on the 

Internet and to design new tools that will be adapted to current 

and emerging technologies. 

I look forward to working with Members on both sides of the 

aisle and with our colleagues on the other side of the Capitol as 

we advance this effort. 

It is now my pleasure to recognize the Ranking Member of the 

Subcommittee, the gentleman from North Carolina, Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman. And let me thank Chairman Goodlatte for providing the Subcommittee with two hearings 

on this important issue. I think it is critical that we look more 

broadly at how we promote investment and protect legitimate commerce online, and a primary means of doing that is deterring the 

electronic theft of legitimate commerce and products just as aggressively as we try to deter theft of products on the ground. These 

hearings are affording us the opportunity to do that. 

I look forward to working with you, Mr. Chairman, to fashion an 

appropriate remedy for what might romantically be called piracy 

but what we still refer to in my neighborhood as theft or simple 

stealing. 

As I noted in our first hearing, online theft of intellectual property is increasing and negatively affecting both the rightsholders 

and the Nation’s economy. Theft of digital work such as music and 

movies carries with it substantial downstream damage, hitting the 

pockets and livelihoods of businesses, large and small, and their 

workers and artists. Who wants to make something or use their intellectual innovation or creative talents if the fruit of their labor is 

just going to be stolen? 

Businesses are hemorrhaging profits, shrinking staff, and in 

some instances facing extinction. Counterfeit products of all kinds 

sold online not only create a drain on the economy, but they can 

also pose serious health and safety risks for an unknowing public 

and jeopardize the financial security of individuals. Luxury goods, 

automobile parts, foodstuffs, and pharmaceuticals have all been hijacked by criminals with the tacit assistance of credible payment 

processors and, yes, reputable players in the Internet ecosystem 

and spurred by the demand of consumers. The criminals would 

rather use their ingenuity to deceive and exploit than to conduct 

legitimate business. The magnitude of digital theft and online 

counterfeiting together is simply staggering, and they have to be 

stopped. 

While the anti-circumvention provisions of the Digital Millennium Copyright Act, the DMCA, have provided rightsholders with 

some protections against theft, the scope of these protections is 

narrow and their reach provides no protection against threats from 

foreign websites. 

Similarly, the notice and takedown provisions of the DMCA established an enforcement model that, while engaging many actors 

in the Internet ecosystem, relies in the final analysis upon ISP’s 

and other online service providers to implement enforcement. 

The gaps in the DMCA suggest that the time to supplement its 

provisions to address the broader range of theft is upon us. The 

scope of the problem has become so immense that every participant 

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within the Internet ecosystem must assume some responsibility for 

taking the profit out of piracy. 

As a member also of the Financial Services Committee, I am familiar with the laws and regulations imposing obligations on banks 

to curb the tide of money laundering. While we require banks, not 

because they are bad actors, to report deposits in excess of $10,000, 

we do so because we want to deter criminals from using reputable 

financial institutions to further their criminal enterprises. 

Similarly, I believe it is incumbent on us to ensure that legitimate Internet intermediaries are protected from criminal elements 

which the evidence overwhelmingly suggests are exploiting U.S.- 

based businesses to infiltrate the U.S. market, reaping profits 

while undermining our economy. 

This applies also to criminals who operate beyond our borders 

and register domain names with foreign registrars. Despite current 

efforts of IP rightsholders and law enforcement officials, it seems 

clear that new authorities and enforcement strategies and enhanced cooperative partnerships are critically needed to combat the 

use of foreign websites by criminals to reach American consumers. 

Additionally, any law we craft must, to the greatest extent possible, account for new technologies and anticipate the creativity of 

criminals to circumvent the law. This is even more important in a 

global economy. 

I look forward to the recommendations of our witnesses and 

thank them for being here. 

And, Mr. Chairman, I yield back. 

Mr. GOODLATTE. I thank the gentleman for his very cogent remarks. 

And I am now pleased to recognize the Chairman of the Judiciary Committee and a leading advocate for efforts in this area, the 

gentleman from Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

This important hearing is the second of two of the IP Subcommittee devoted to the destructive effects of online parasites, 

web-based entities that steal intellectual property. 

Practically anything capable of being reproduced digitally or 

available for sale in stores is only a click or two away today. That 

is a good thing when consumers purchase from legitimate businesses, but increasingly consumers are being steered to web stores 

that traffic in counterfeit products. 

According to the Alliance for Safe Online Pharmaceuticals, 95 

percent of online pharmacies are unlicensed or traffic in counterfeit 

drugs. When patients go online and end up buying fake medicines, 

more than a trademark is in jeopardy. The lives of those or their 

loved ones are placed at risk. So this is about both protecting lives 

and intellectual property. 

It is also about jobs, jobs lost as a result of digital theft and online counterfeiting. The jobs lost in legitimate industries tend to be 

high-paying jobs that provide income and security to tens of thousands of Americans. For instance, jobs in the U.S. entertainment 

industry have an average salary of $76,000. This is 72 percent 

higher than the national average. When jobs like these are lost, entire families become victims. 

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With digital theft, what is distributed was created by those who 

have had their property stolen. Perfect reproductions of movies, 

sound recordings, books, software, and musical compositions compete directly with licensed goods. 

The Constitution provides for the progress of science and useful 

arts by giving Congress the specific responsibility and duty to spur 

creativity and innovation by securing those IP rights. Our job on 

the House Judiciary Committee is to protect the right of free expression and to provide due process of law. 

A recent study of online activity revealed that nearly one-quarter 

of global Internet traffic involves stolen IP. This digital theft is now 

so pervasive, profitable, and pernicious that it discourages creative 

companies from investing in the production of new licensed content. IP theft not only adversely affects creators but also undermines investments in new technology by innovative companies such 

as Netflix. 

Securing property rights and protecting IP is a matter that 

unites Members on both sides of the aisle and on both sides of the 

Hill. While we will never achieve unanimity, there is a great deal 

of consensus that new legislation is needed to deal with threats 

that have emerged as technology has progressed. 

Thank you, Mr. Chairman. 

I yield back. 

Mr. GOODLATTE. I thank the Chairman. 

And it is now my pleasure to recognize the Ranking Member of 

the full Committee, the gentleman from Michigan, Mr. Conyers? 

Mr. CONYERS. Thank you, Mr. Chairman. 

We were yesterday over on the other side meeting with the 

Chairman of the Senate Judiciary, the Chairman of this Committee, the Subcommittee Chairman of this Committee, the distinguished gentleman from California, Mr. Berman, and myself pledging publicly to be as cooperative as we can in this ongoing examination of how to get a bill out of here that will satisfy at least a 

few, maybe even most of you that are present in the room today. 

Now, there are a number of companies—and Google is not the 

only one—and other search engines that act as intermediaries that 

facilitate what all this lecturing is about on piracy and stealing and 

so forth. We are beginning to examine what responsibility do they 

have. Are we all the innocents, and all the bad guys are overseas 

doing all this? 

Under title 17 and sections 501 and 506, this Government and 

copyright holders cannot adequately stop, so far, online infringement at the speed that is necessary to stop the crimes. On the 

Internet, once a file of an illegal movie has been uploaded, for example, days and even minutes can result in copies of the file traveling to every corner of the Web. The Department of Justice and 

our civil suit system move at a very slow pace. The DMCA has 

been insufficient to stop what is going on. There has been a proliferation of sites operating off our shores. As fast as we close a few 

down, others spring up. 

And so I am glad that Floyd Abrams is here, the number one 

man in First Amendment concerns, because we have got a big challenge in front of us. 

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Now, we are going to move toward closing down some of this 

international illegal activity, and the challenge is how to do it without violating due process and the First Amendment. 

So I join everybody here in all the rhetoric. 

But why don’t we just cut off some of the money? These streams 

of pirate sites—instead of cutting off each one every time it pops 

up to pop up somewhere else, why don’t we eliminate some of the 

financial incentives by cutting off funding from the customer 

through the payment processing system or cut off the funding from 

the advertising networks? 

What about the Department of Justice with the authority to go 

after the worst, we could permit them to order court-supervised 

takedowns and allow them to block access to rogue sites from within the United States? And it may be we need to talk to the Attorney General again on this subject. 

Finally—and this is almost unthinkable—we could begin to grant 

a right of private action to allow people to challenge some of these 

providers, search engines and payment processors. 

I will be the first to be critical if we step over the line, but I 

think that there is more that can be done and I think that we need 

to use this hearing as another opportunity to come up with some 

legislation that we will all be proud of. 

Thank you, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. 

And without objection, other Members’ opening statements will 

be made a part of the record. 

We have a very distinguished panel of witnesses today. Their 

written statements will be entered into the record in their entirety, 

and I ask the witnesses to summarize their testimony in 5 minutes 

or less. To help you stay within that time, there is a timing light 

on your table. When the light switches from green to yellow, you 

will have 1 minute to conclude your testimony. When the light 

turns to red, it signals your 5 minutes have expired. 

Before I introduce our witnesses, I would ask them to stand and 

be sworn. 

[Witnesses sworn.] 

Mr. GOODLATTE. Thank you and please be seated. 

Our first witness is John Morton, the Director of Immigration 

and Customs Enforcement. ICE is the principal investigative arm 

of the U.S. Department of Homeland Security and the second largest investigative agency in the Federal Government. The primary 

mission of ICE is to promote homeland security and public safety 

through the criminal and civil enforcement of Federal laws that 

govern border security, customs, trade, and immigration. 

Before his confirmation in 2009, Mr. Morton spent 15 years at 

the Department of Justice. While there, he served as an Assistant 

United States Attorney, Counsel to the Deputy Attorney General, 

and Acting Deputy Assistant Attorney General of the Criminal Division. During his tenure, Mr. Morton has sought to strengthen 

ICE’s investigative and enforcement efforts with a particular emphasis on border crimes, export controls, intellectual property, and 

child protection. 

Our second witness is Floyd Abrams. Mr. Abrams is a partner 

at the New York law firm of Cahill, Gordon & Reindel. His practice 

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is diverse and includes intellectual property, media, and communications law. An internationally noted trial and appellate attorney, Mr. Abrams is best known for his experience and expertise in 

First Amendment issues. He is the recipient of countless awards 

and honors, which I will not attempt to enumerate, but perhaps 

none is more noteworthy than the description of Mr. Abrams by 

Senator Daniel Patrick Moynihan as, quote, the most significant 

First Amendment lawyer of our age. End quote. 

Mr. Abrams earned his bachelor’s from Cornell University and 

his J.D. from Yale Law School. I understand he is testifying in his 

personal capacity today. 

Our third witness is Kent Walker. Mr. Walker is a Senior Vice 

President and General Counsel of Google. In the latter role, he is 

responsible for managing Google’s global legal team and advising 

the company’s board and management on legal issues and corporate governance matters. 

Before joining Google, Mr. Walker served in a variety of senior 

legal positions at other technology companies. These include eBay, 

Liberate Technologies, Netscape, America Online, and AirTouch 

Communications. Prior to serving in these positions, he served as 

an Assistant United States Attorney where he focused on the prosecution of technology crimes. 

Mr. walker graduated magna cum laude from Harvard and 

earned his J.D. with distinction from Stanford Law School. 

Our final witness is Christine Jones. Ms. Jones is the Executive 

Vice President and General Counsel and Corporate Secretary to the 

Go Daddy Group, Incorporated. With more than 47 million domains 

under management, godaddy.com is the world’s largest domain 

name registrar. In addition to being responsible for all legal affairs, 

Ms. Jones oversees the domain services, network abuse, government relations, compliance, and legal departments of the corporation. She has been active in her support of Internet-related legislation to, among other things, protect children from predators, protect patients from counterfeit and unlicensed drugs, and enhance 

transparency and accountability among those who operate online. 

Before affiliating with Go Daddy, Ms. Jones practiced privately 

and worked for the Los Angeles District Attorney’s office. 

She earned her bachelor’s from Auburn University and her J.D. 

from Whittier Law School. In addition to being an attorney, she is 

also a certified public accountant. 

We welcome all of our witnesses to the Subcommittee on Intellectual Property, Competition and the Internet today, and we will 

begin with Mr. Morton’s opening statement. 

TESTIMONY OF THE HONORABLE JOHN MORTON, DIRECTOR, 

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 

Mr. MORTON. Good morning, Mr. Chairman, Ranking Member 

Watt, Members of the Subcommittee. Good morning as well to 

Chairman Smith and to Ranking Member Conyers from the full 

Committee. 

As you know, ICE is an aggressive investigator of intellectual 

property offenses, and we run the National Enforcement Center for 

IP Crime just across the river in northern Virginia. 

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Now, why is ICE so heavily engaged in intellectual property enforcement? The answer is simple. American businesses and consumers are under assault from organized counterfeiters and copyright thieves. American jobs, American innovation, the safety of our 

people are all at risk, not minor risk, serious risk, risk calculated 

in the billions, risk that threatens the foundation of certain U.S. 

industries, risks that put people in hospitals. 

Remember, counterfeiters and copyright thieves aren’t trying to 

make America great. They don’t pay taxes. They don’t create jobs. 

They don’t provide health care or pensions. They don’t invest in the 

next Oscar-winning movie, the next lifesaving drug, or the next 

technological advance. They don’t care about safety or health 

standards. Instead, they wait for others to do the research, for others to work hard, for others to play by the rules, and then they 

take what they can’t make on their own and profit at our country’s 

expense. 

In short, we have a significant problem on our hands, and resolute action by Government, by industry, and the consumer is necessary to turn the tide. 

Why are we pursuing enforcement online? Again, the answer is 

simple. That is where crime is taking us. The days of counterfeiting 

and copyright theft occurring solely through the mails, on the 

streets, or through our ports are over. Today these crimes are just 

as likely to occur over the Internet as they are on the corner of 4th 

and Main. 

Let me be clear here. We are investigating crimes online because 

copyright thieves and counterfeiters have led us there. We are not 

seeking to regulate the Internet. We are not out to stifle free 

speech. We are not out to trample anyone’s constitutional rights. 

Any suggestion to the contrary is simply false. Full stop. We are 

a law enforcement agency out to deter and prevent crime. Nothing 

more, nothing less. Crime is crime wherever it occurs and we do 

not accept the view that the Internet should somehow be off limits 

to enforcement if it is knowingly being used to commit crime. 

So what is ICE doing to combat the problem? Well, we are making IP enforcement a priority for the agency and pursuing a record 

number of IP cases. Last fiscal year, for example, we opened over 

1,000 new IP investigations, the largest number in our agency’s 

history. 

Wherever we can, we pursue the traditional investigative model; 

that is, we investigate the alleged crime, we seize the contraband, 

we arrest and prosecute the perpetrators. That approach doesn’t always work well, however, on online cases as online crime is frequently centered overseas and outside of our legal jurisdiction. 

Take an online counterfeiting site, for example. More often than 

not, the server, the criminals, and the counterfeiting operation are 

all outside the U.S. The same is true for infringing sites. Nothing 

need be based in the U.S. 

As a result, we have also seized 119 domain names of sites used 

to sell counterfeit goods and to illegally distribute copyrighted materials. 119 sites, mind you, out of well over 200 million on the 

Internet. The majority of the sites were linked to counterfeiting of 

hard goods; the rest were involved in illegal streaming or 

downloads of entertainment or software. 

164 

Please note that we are not targeting lawful businesses, blogs, or 

discussion boards. The sites we go after are commercial and have 

engaged in repeated and significant violation of the law. They are 

increasingly sophisticated and often seek to dupe consumers. 

I don’t know if we can throw up—so here is just two quick examples. Here is a website purporting to be an authorized Louis 

Vuitton outlet and it offers Louis Vuitton products—and I quote— 

100 percent handmade from France. The website has the Louis 

Vuitton logo, name, and designs. What is missing, of course, are 

any genuine Louis Vuitton products. Instead, none of the products 

are handmade in France, but they are all counterfeit in China and 

shipped to the United States. 

The next slide, if you would. This is allegedly an authorized retailer of Nike shoes, another site that we seized. In fact, none of 

these shoes are authorized or made by Nike. They are all counterfeit. Here you have Nike, one of the major U.S. manufacturers 

based in Oregon, and it is if not the most targeted, one of the most 

targeted companies in terms of counterfeiting. 

Let me close very quickly by saying we spend a lot of time and 

attention on process. We can talk about that more in detail. 

I also recognize that good people can have different views on how 

to solve counterfeiting and copyright infringement. That is okay. I 

don’t pretend to have all of the answers. Addressing online crime 

is not an easy task and criminal investigation is but one part of 

the solution. 

I do know this, however, Mr. Chairman. If we do nothing to keep 

pace with online criminals or give up this fight, little good will 

come of it. 

Thank you. 

[The prepared statement of Mr. Morton follows:] 

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U.S. Immigration 

and Customs 

Enforcement 

STATEMENT 

OF 

JOHNMQRTQN 

DlRECfOR 

u.s. IMMIGRATION AND CUSTOMS ENFORCEMENT 

DEPARTMENT OF HOMELAND SECURITY 

REGARDING A HEARING ON 

"PROMOTING INVESTMENT AND PROTECfING COMMERCE 

ONLINE: LEGITIMATE SITES V. PARASITES, PART U" 

BEFORE THE 

U.S. HOUSE OF REPRESENTATIVES 

COMMlTIEE ON THE JUDICIARY 

SUBCOMMItTEE ON INTELLECTUAL PROPERTY, 

COMPETITION AND TIlE INTERNET 

Wednellday, April" 2011· 10:45AM 

2141 Rayburn "oun Office Building 
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INTRODUCTION 

Chairman Goodlatte, Ranking Member Watt, and distinguished Members of the 

Subcommittee: 

Thank you for the opportunity to highlight the important role U.S. Immigration 

and Customs Enforcement (ICE) plays in combating intellectual property (IP) theft in 

today's global economy. 

Simply put, American business is threatened by those who pirate copyrighted 

material and produce counterfeit trademarked goods. Criminals are attempting to steal 

American ideas and products and sell them over the Intemet, in flea markets, in 

legitimate retail outlets and elsewhere. From counterfeit pharmaceuticals and electronics 

to pirated movies, music, and software, IP thieves undermine the U.S. economy and 

jeopardize public safety. American jobs are being lost, American innovation is being 

diluted and the public health and safety of Americans is at risk - and organized criminal 

enterprises are profiting from their increasing involvement in IP theft. 

The Administration is responding to this organized criminal activity through a 

first-of-its-kind, coordinated, and strategic offensive that targets counterfeiters and those 

who pirate copyrighted material. This offensive involves multiple departments and 

agencies within government coming together in an ICE-led task force, the National 

Intellectual Property Rights Coordination Center (IPR Center). IP enforcement policy 

across many different federal agencies is being coordinated by the first presidentially 

appointed, Senate-confirmed Intellectual Property Enforcement Coordinator (IPEe), 

Victoria Espinel, with whom I have had the great privilege to work. ICE and the IPR 

Center contributed and consulted frequently with the IPEC on the creation of the first-
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ever Joint Strategic Plan on Intellectual Property Enforcement released in June 2010. 

Additionally, we contributed to the IPEC's 2010 Annual Report to Congress, released in 

February 2011, and a variety of other reports to Congress and the Vice President. 

BACKGROUND 

America's entrepreneurial spirit and integrity are embodied by the creativity and 

resourcefulness of our workforce. New inventions, innovations, works of art, and 

discoveries create new jobs and new industries and add to our country's heritage. 

Innovation drives commerce and enables the United States to compete in the global 

marketplace. Intellectual property rights and the ability to enforce those rights encourage 

American companies to continue the tradition of American innovation and develop 

products, ideas and merchandise. 

Intellectual property rights are intended to discourage thieves from selling cheap 

imitations of products that are often far less safe or reliable than the original products. 

More importantly, intellectual property rights protect public safety by preventing the 

proliferation of counterfeit pharmaceuticals and other materials that are potentially 

harmful. They also protect our military members by preventing the spread of untested 

and ineffective knockoff components. Intellectual property rights violators unfairly 

devalue America's contributions, hinder our ability to grow our economy, compromise 

American jobs, and put consumers, families, and communities at risk. They also protect 

the actor, director, writer, musician, artist, and countless others who labor in and around 

America's entertainment industry from having a movie, manuscript, song or design 

illegally sold by someone who had no part in the artistry of creating it. 

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As the members ofthis Subcommittee well know, globalization provides 

boundless opportunities for commerce. But it also brings a growing set of challenges, 

especially in combating the theft of intellectual property. In a global economy, 

enforcement of intellectual property rights is crucial to ensuring that legitimate 

manufacturers and companies can expend capital developing overseas markets, exporting 

goods and creating jobs. 

ICE'S ROLE 

ICE has a legacy of engagement in IP theft enforcement - stretching from our past 

years as U.S. Customs Service investigators to our present role as homeland security 

investigators. ICE is a leading agency in the investigation of criminal intellectual 

property violations involving the illegal production, smuggling, and distribution of 

counterfeit and pirated products, as well as associated money laundering violations. We 

target and investigate counterfeit goods entering the U.S. through our ports from various 

countries overseas and we seize counterfeit goods associated with these investigations, 

such as those that infringe on trademarks, trade names and copyrights. ICE has become 

increasingly innovative in how we combat counterfeiting and piracy. Our goal is not 

mere marginal increases in enforcement, but to disrupt the manufacturing, distribution, 

and financing segments of these criminal organizations. 

ICE recognizes that no single U.S. law enforcement agency alone can succeed in 

the fight against IP theft. Rather, it is essential that all relevant federal agencies work 

together and with industry to confront this challenge. ICE initiated the IPR Center to 

leverage government resources to combat IP theft. 

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THE IPR CENTER 

The mission of the IPR Center is to address the theft of ilUlovation and 

manufacturing that threatens U.S. economic stability and national security, restrict the 

competitiveness of U.S. industry in world markets, and place the public's health and 

safety at risk. The IPR Center promotes coordination and communication across the 

many U.S. govemment agencies with roles in enforcing IP laws. The IPR Center brings 

together key domestic and foreign investigative agencies to efficiently and effectively 

leverage resources, skills and authorities to provide a comprehensive response to IP theft. 

The IPR Center, located in Arlington, Virginia, is an ICE-led task force of 17 

relevant federal and international partners. The Department of Justice (DOJ) is a 

participant, prosecuting federally for all partners. The JPR Center includes embedded 

team members from, among others, U.S. Customs and Border Protection (CBP), the 

Food and Drug Administration Office of Criminal Investigations (FDA OCI), the Federal 

Bureau of Investigation (FBI), the U.S. Postal Inspection Service (USPIS), the 

Department of Commerce International Trade Administration, the U.S. Patent and 

Trademark Office, the Defense Criminal Investigative Service, the Naval Criminal 

Investigative Service, the Army Criminal Investigative Command Major Procurement 

Fraud Unit and the Inspector General's Office from the General Services Administration. 

Last year, the Government of Mexico and INTERPOL joined the IPR Center as our first 

international partners. 

Since February 2011, the IPR Center has welcomed the following new partners: 

the U.S. Consumer Product Safety Commission; the Defense Logistics Agency; the U.S. 

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Department of State Office of International Intellectual Property Enforcement; and OUT 

third international partner, the Royal Canadian Mounted Police. Together, the partners at 

the IPR Center have created a one-stop shop for industry and victims ofIP theft, reducing 

duplication and allowing us to leverage and benefit from OUT different areas of expertise. 

ICE and the IPR Center have repeatedly teamed with the World Customs Organization 

(WCO) and its member countries in several multilateral enforcement operations targeting 

counterfeit goods. 

ICE'S INTERNATIONAL EFFORTS 

ICE's Homeland Security Investigations International Affairs (HSI-IA) represents 

the largest investigative law enforcement presence abroad for the Department of 

Homeland Security (DHS) with an international footprint of 69 offices in 47 countries, 

including representatives at seven combatant commands, staffed by more than 380 

personnel. The mission of HSI-IA is to protect the United States by enhancing its 

security through international investigations involving transnational criminal 

organizations responsible for the illegal movement of people, goods, and technology, and 

through strong and integral intelligence and removal programs. There are II countries on 

the U.S. Trade Representative's Priority Watch List as part of its annual review of the 

global state of intellectual property rights protection and enforcement. ICE maintains a 

presence in nine of these countries, with a total of 14 offices. The FBI, an IPR Center 

partner agency, maintains a presence in the other two countries. 

ICE Attaches work with international organizations and foreign law enforcement 

counterparts to build capacity, strengthen relationships, and conduct joint enforcement 

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activities. ICE is recognized as a worldwide subject matter expert on criminal customs 

matters, and holds positions as Vice Chair for the Enforcement Committee and Chair of 

the Commercial Fraud Working Group with the WCO. 

ICE's work in China 

The primary source country for the manufacture and distribution of counterfeit 

merchandise is China. In FY 2010, ICE and CBP seized at U.S. ports of entry IPR 

violative goods from China with a domestic value (as opposed to manufacturer's 

suggested retail value) of more than $124.6 million. These seizures accounted for 

approximately 66 percent of the total domestic value of counterfeit merchandise seized 

byDHS. 

ICE has a presence in central and southern coastal China with offices in Beijing 

and Guangzhou, with our Assistant Attache in Guangzhou designated as ICE's first "IP 

Attache" and ICE's point of contact for alllP matters involving China. These two offices 

deal largely with commercial fraud and IP. Moreover, the ICE office in Guangzhou is 

working with the U.S. Consulate on a project to make Shenzhen a model IP enforcement 

city. ICE has made a commitment to work with the Consulate on this project and provide 

training to the Chinese Public Security Bureau on IP investigation and enforcement. 

Last September, I traveled to China for meetings with my Chinese law 

enforcement counterparts, including the Ministry of Public Security (MPS), and signed 

an agreement to cooperate on joint investigations oflP theft. The IPR Center also 

regularly Iiaises with MPS representatives from the Chinese Embassy in Washington. 

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This new agreement builds on our previous work with China. In September 2003, 

ICE collaborated with Chinese authorities on Operation Spring, a joint IPR investigation 

that resulted in the extradition and conviction ofDVD pirate Randolph Guthrie, who was 

sentenced to 48 months incarceration and ordered to repay $878,793 in restitution to the 

Motion Picture Association of America. Another joint ICE-Chinese investigation 

resulted in four arrests in the United States and the seizure of more than $100 million in 

counterfeit computer software and approximately $4 million in counterfeit cigarettes. 

ICE's work in other countries 

More recently, ICE worked with our Korean partners in Seoul to combat IP 

violations occurring in that country. In September, I signed a Memorandum of 

Understanding between ICE and the Korean Supreme Prosecutor's Office to work 

collaboratively on IP investigations. Since FY 2008, seizures in Korea involving our 

Attache in Seoul have increased dramatically: in FY 2010,22 subjects were arrested, and 

merchandise valued at approximately $18.7 million was seized. So far in FY 2011, 42 

subjects have been arrested and ICE has assisted in seizures valued at approximately $13 

million. 

In July 2009, ICE opened an office in Brussels to work directly with the WCO on 

multilateral operations addressing bulk cash smuggling and explosives precursor 

chemicals. ICE also works with INTERPOL, the Asia-Pacific Economic Cooperation 

Forum, and the Departments of State, Commerce, and Justice on a variety of initiatives, 

including providing training on IPR enforcement to our international law enforcement 

partners. 

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ICE'S CONTRIBUTIONS TO FOREIGN TRAINING AND CAPACITY 

BUILDING 

In May 2009, the IPR Center initiated the U.S. interagency "IPR in Africa" 

Working Group, with participation by the Departments of State, Justice, and Commerce, 

to improve coordination of the U.S. government's IP training and resource commitments 

in Africa. In coordination with these U.S. entities, the WCO and INTERPOL, the IPR 

Center serves as a subject matter expert in IPR training specificaIIy focused on 

strengthening enforcement and investigations. 

ICE provides training on IP theft enforcement and interacts with foreign officials 

worldwide through our participation in the Department of State International Law 

Enforcement Academy (ILEA) program. The mission of the ILEAs -located in 

Budapest, Gaborone, San Salvador, Bangkok, and Lima - is to help protect U.S. 

interests through international cooperation and the promotion of stability by combating 

crime. 

ICE is an active member of the U.S. delegation negotiating the AntiCounterfeiting Trade Agreement (ACTA). The goal of ACTA is to work with other 

countries interested in promoting strong enforcement of !PR. ACTA aims to strengthen 

legal frameworks to bridge existing gaps between laws and dedicated enforcement, and to 

foster ongoing cooperation among ACTA participants. 

STATE, LOCAL, AND TRIBAL TRAINING AND OUTREACH 

ICE and the IPR Center assert that an effective enforcement strategy must include 

the participation of our state, local, and tribal law enforcement partners. On April 26, 

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2010, designated as World IP Day, I announced the creation oflocal IP Theft 

Enforcement Teams (IPTETs). The IPTETs are partnerships with state, local and tribal 

law enforcement built on the best practices identified by the IPR Center. They use an 

informal task force approach to enhance coordination ofintellectual property 

investigations at the state, local and tribal level. There are currently 26 IPTETs across 

the country, which include federal, state, local and tribal law enforcement partners, 

including sworn personnel from police and sheriff departments and local prosecutors. 

The IPR Center has been conducting training for the IPTETs around the country and 

since their creation. 

RECENT ENFORCEMENT SUCCESSES 

Operation In Our Sites 

Last year, the IPR Center launched Operation In Our Sites, a new initiative 

targeting web sites being used to sell counterfeit goods and distribute pirated merchandise 

and copyrighted digital materials. During the first enforcement action as part of this 

initiative, ICE agents, working with the U.S. Attorney's Office for the Southern District 

of New York, obtained judicially authorized seizure warrants for seized seven illegal 

domain names providing more than 500 movies and television programs. After ICE shut 

down the web sites, 20 million visitors attempted to access the sites. 

On November 29, 20 I 0, I joined the Attorney General to announce the results of 

Operation In Our Sites v. 2.0. Timed to coincide with "Cyber Monday," reportedly the 

largest online shopping day of the year, the operation targeted online retailers of 

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counterfeit goods, including sports equipment, shoes, handbags, athletic apparel and 

sunglasses, as well as illegal copies of copyrighted DVD boxed sets, music and software. 

ICE and DOJ obtained federal court orders to seize the domain names of 77 internet sites 

selling counterfeit goods, five web sites selling pirated movies, music and software, and 

one server. The operation was spearheaded by the IPR Center, in coordination with DO] 

Computer Crime and Intellectual Property Section, nine ICE field offices, and ten U.S. 

Attorneys' Offices. 

In 2011, ICE added to the In Our Sites initiative on February 4 with In Our Sites 

v. 3.0, and on February 14 with In Our Sites v. 4.0. In Our Sites v. 3.0 coincided with the 

Super Bowl, and resulted in the seizure of 10 domain names of web sites that provided 

access to pirated telecasts of the National Football League, the National Basketball 

Association, the National Hockey League, World Wrestling Entertainment, and the 

Ultimate Fighting Championship. Last month, ICE and DO] announced the arrest of the 

operator of one of these websites on charges of federal copyright violation. These are 

lucrative criminal endeavors, and ICE and DO] froze one bank account with over 

$500,000 in cash that resulted from the illegal operation of the website. Operation In Our 

Sites v. 4.0 coincided with Valentine's Day and resulted in the seizure of 18 domain 

names of commercial web sites engaged in the illegal sale and distribution of counterfeit 

goods. 

The domains seized pursuant to court order now display a banner announcing the 

seizure of the site by the government and an explanation of the federal crime and 

punishment for copyright theft and distribution or trademark violations. Since the initial 

seizures in June 2010, there have been over 38 million hits to the seizure banner that 

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notifies viewers a federal court order has been issued for the domain name and educates 

them that willful copyright infiingement is a federal crime. The reSUlting public 

education about pirating is a significant benefit of this enforcement operation in deterring 

future crimes and in raising awareness. 

The Operation In Our Sites initiative will continue through 2011 and beyond. 

ICE's efforts through this operation successfully disrupt the ability of criminals to purvey 

copyrighted materials illegally over the internet. In addition to the domain names that 

are seized through this operation, evidence suggests that the operation has a deterrent 

effect. In fact, following Operation In Our Sites v. 1.0, ICE was notified that 81 of the 

most active websites that had been offering pirated material voluntarily shut down. 

Due process in Operation In Our Sites 

Operation In Our Sites was developed with the Department of Justice to respect 

free speech, to provide due process, and to work within the statutory framework provided 

to us by Congress. Domain names seized under Operation in Our Sites are seized only in 

furtherance of ongoing criminal investigations into violations ofV.S. federal laws. As 

with all criminal investigations, the initial leads are obtained through a variety of sources 

including, but not limited to, leads from the general public, tips from industry 

representatives and information uncovered by special agents. For each domain name 

seized, ICE investigators independently obtained counterfeit trademarked goods or 

pirated copyrighted material that was in turn verified by the rights holders as counterfeit. 

After such verification, ICE applied for federal seizure warrants based on probable cause. 

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Federal magistrate judges approve criminal seizure warrants based on probable 

cause for the domain names that are targeted. The standard is exactly the same as in any 

other criminal investigation. As with all judicially authorized seizure warrants, the 

owners of the seized property have the opportunity to challenge the judge's determination 

through a petition. If a petition is filed, a hearing is held in a federal court to determine 

the validity of the affidavit supporting the seizure, at which point the government would 

have the burden of proof. Of course, all rights of appeal, ultimately even to the Supreme 

Court of the United States, would adhere to the website owner, should the judge 

determine the issue in favor of the government. 

Under existing federal law, the website owner may also choose to demand return 

of the property through the law enforcement agency itself, by writing a letter to ICE. If 

ICE does not return the website within 15 days, the owner can petition the U.S. District 

Court in which the seizure warrant was issued or executed. 

Further, if the website owner determines he or she does not wish to pursue either 

of these avenues of due process, a challenge may be filed directly with the law 

enforcement agency conducting a forfeiture action under administrative processes. 

So, there are four avenues of due process along the path, including the initial 

determination by a neutral and detached magistrate that the website was engaged in 

violations offederal criminal copyright or trademark law. 

Other notable investigative successes against IP theft 

ICE's IF theft enforcement efforts have continued to increase under this 

Administration. In FY 2010, ICE initiated 1,033 intellectual property infringement 

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cases-a 42 percent increase over FY 2009-and achieved 365 arrests, 216 indictments 

and 170 convictions. In FY 2010, criminal charges flowing from ICE-initiated 

intellectual property investigations increased by 86 percent over the previous year. These 

figures include both federal and state prosecutions. The below cases illustrate some of 

our notable IP enforcement successes. 

In the past year, ICE agents continued to seize millions of dollars in counterfeit 

items as a result of significant criminal investigations including an investigation into a 

criminal organization smuggling counterfeit shoes and luxury goods through the Port of 

Baltimore, with an estimated manufacturer's suggested retail price of more than $219 

million had the products been legitimate goods. This investigation resulted in nine 

federal arrests. ICE was able to develop evidence on a parallel operation in the United 

Kingdom, and our ICE Attache in London passed the information on to relevant UK law 

enforcement. This resulted in six arrests, seizures of 50,000 counterfeit luxury items and 

approximately $617,000 in U.S. equivalent currency, making it one of the largest IP theft 

enforcement cases in UK history. 

We have broadened our reach by partnering with foreign counterparts, such as the 

Mexican Tax Administration Service, which seized 306 tons of counterfeit merchandise 

at mail facilities and land, air and sea ports of entry during just one joint operation. 

Earlier this year, the IPR Center partnered with the NFL, NBA, NHL, the 

National Collegiate Athletic Association (NCAA), industry and 10ca11aw enforcement to 

conduct operations targeting counterfeit sports merchandise sold during the Super Bowl, 

the NBA All-Star Game, the Stanley Cup championship, and the NCAA Final Four and 

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Frozen Four tournaments. These operations resulted in seizures of more than 14,000 

counterfeit items valued at more than $760,000. 

In June 2010, ICE and CBP completed the U,S, portion of Operation Global 

Hoax, a three-month multilateral enforcement action proposed by the IPR Center and 

coordinated with the wco. Global Hoax is the first-ever worldwide enforcement action 

targeting counterfeit DVDs and CDs as they are shipped around the world. The five-day 

surge operation at mail and express courier facilities resulted in the seizure of more than 

140,000 pirated DVDs, 28,000 CDs, and more than 270,000 other counterfeit items 

worldwide. Domestically, ICE HSI and CBP seized 22,371 pirated DVDs, 2,658 pirated 

DVD box sets, 133 pirated CDs and 8,556 other counterfeit items worth a total MSRP of 

approximately $5.3 million. 

In October 2010, the IPR Center coordinated U.S. efforts in Operation Pangea III, 

a global operation targeting illegal pharmaceutical sales over the Internet that involved 

the participation of ICE, CBP, FDA OCI, USPIS, DEA, 45 countries, the WCO, 

INTERPOL, international organizations, and industry. The U.s. operation was conducted 

at mail facilities in several U.S. cities. Internet monitoring revealed more than 820 

websites engaged in illegal activity, including those offering controlled or prescriptiononly drugs. Nearly 300 of these web sites have been taken down and investigations 

continue. Participants inspected over 278,000 packages, seizing nearly 11,000 packages 

which contained more than 2.3 million illicit and counterfeit pills worth more than $56.7 

million. Globally, 130 search warrants were executed and 87 individuals were arrested or 

are under investigation for a range of offenses. 

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ICE remains steadfast in ensuring that IP theft is not used to support those who 

would harm the United States or our interests abroad. Last November, ICE and the FBI 

worked with the New Jersey State Police and the Philadelphia FBI Joint Terrorism Task 

Force on a case that identified a three-cell criminal organization; a U.S.-based stolen 

property and counterfeit goods group; an overseas procurement group; and an 

international group tied to Hezbollah procuring weapons, counterfeit money, stolen 

property, and counterfeit goods. Ultimately, the investigation resulted in 25 indictments, 

15 criminal arrests, 15 administrative arrests, and 10 red notices in INTERPOL. 

However, we recognize that we are not going to be able to prosecute our way of 

this problem. There are simply too many criminals operating online today. This 

Administration believes strongly that we need to have the private sector and the 

companies that make the internet function take action if we are going to address this 

problem effectively. We are working with the White House Intellectual Property 

Enforcement Coordinator and other agencies to support the efforts to establish voluntary 

agreements with payment processors, ad networks, and other intermediaries to do the 

right thing. Combined with our law enforcement efforts, having the private sector step up 

to take voluntary action against infringers can have a tremendous effect. 

ICE'S PARTNERSHIP WITH THE PRIVATE SECTOR 

The IPR Center recognizes that law enforcement cannot fight IP theft alone and 

we look to partner with private industry in our efforts. In a market economy, no one has 

a greater incentive for protecting intellectual property rights than private industry. 

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Companies want to protect their investments in research, development, manufacturing, 

sales, marketing and product distribution. 

To help enhance and facilitate productive partnerships within both the public and 

private sectors, the IFR Center provides industry with valuable information about ICE's 

efforts to combat the importation of hazardous and counterfeit products, and it provides 

points of contact in ICE field offices that industry can use to provide ICE with leads and 

tips. Since July 2008, the IFR Center and ICE agents have conducted approximately 638 

outreach efforts, to include formal presentations and meetings, speaking with more than 

34,000 industry representatives. 

BUILDING PUBLIC AWARENESS ABOUT IP THEFT 

ICE believes the only way for us to be truly successful in our efforts against IF 

theft is to change public perception of IF crimes. Too many individuals believe buying 

knock-off goods or downloading films or songs from piratical sites is a victimless crime. 

The public must recognize that counterfeiting, piracy, and diversion is theft: theft of 

innovation, jobs, and revenue that sustains jobs, advances American business, funds 

health insurance, and supports industrial growth and economic stability. 

The IFR Center is leading an effort to educate the public and other audiences 

about IF theft and international organized crime connections. In June 2010, the IFR 

Center hosted a Symposium titled "IF Theft and International Organized Crime and 

Terrorism: The Emerging Threat." Panels of academics, industry leaders and domestic 

and international government officials discussed links between international organized 

crime, terrorism and IF theft. Attendees included congressional staff, domestic law 

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enforcement, media and others. A similar symposium is being planned for later this year. 

CHALLENGES AHEAD 

I am regularly asked what challenges lie ahead in IP theft enforcement. First, I 

note that there are more criminals engaged in IP theft than ever before, and counterfeiting 

materials and items that clearly can affect public health and safety. As international 

criminal organizations have yielded huge profits through trafficking in counterfeit goods, 

they have opened their existing criminal infrastructures and smuggling routes to the flow 

of counterfeit merchandise. Because criminal penalties for commercial fraud violations 

as imposed are less severe than traditional drug or weapons trafficking offenses, many IP 

thieves and organized criminal organizations view IP theft as a relatively "low risk" 

endeavor. As I noted, ICE is working closely with international law enforcement 

partners to facilitate global investigations and crack down on transnational criminal 

organizations. 

Moreover, over the last 10 years, the Internet's growth as a global commerce 

medium has caused it to develop into a key means for facilitating IP theft. The 2010 

Cisco Visual Networking Index forecasts that global IP traffic will quadruple by 2014. 

Moreover, Cisco notes that download speeds ofDVD quality movies have been reduced 

from three days 10 years ago, to just around two hours this year; an MP3 audio download 

time has been reduced from three minutes to approximately five seconds. TIlis increase 

in access to the Internet, while of great benefit for global communication and commerce, 

presents a challenge with regard to IP enforcement. 

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In addition, while ocean-crossing shipping containers are neccssary to move bulk 

quantities of counterfeit items such as handbags, shoes, batteries or holiday lights, other 

high value items including counterfeit pharmaceuticals, mobile phones, computer 

network components, microchips, MP3/4 Players, pirated DVDs/CDs and others are 

being smuggled in smaller and smaller quantities through mail andlor express courier 

parcels. ICE and CBP, using our customs authorities, will need to increase surge 

operations at foreign mail and courier facilities to generate seizures, controlled deliveries, 

intelligence and investigative leads. 

IP theft cases have grown in both magnitude and complexity. A crime previously 

viewed as limited to luxury goods (such as high-priced handbags, apparel, and watches) 

has quickly grown to include all types of products and consumer goods at every price 

point, presenting more challenging and involved investigations. 

Another challenge we face is that criminals are willing to counterfeit and market 

any product ifit will sell, regardless of whether such sale could result in serious and 

significant injury to consumers or the public. ICE has investigated cases involving 

counterfeit toothpaste that contained a component found in antifreeze. Likewise, in 2007, 

ICE and the FDA arrested Kevin Xu, one of the world's most prolific counterfeiters of 

pharmaceuticals. Xu has been linked to distribution of counterfeit medications such as 

Plavix, Zyprexa, and Casodex that are used to treat blood clots, schizophrenia, and 

prostate cancer, respectively. 

ICE and the FBI, along with DOJ, investigated the potential sale of counterfeit 

Cisco Gigabit Interface Converters to the U.S. Department of Defense for use by U.S. 

Marine Corps personnel operating in Iraq. Failure of these counterfeit devices on the 

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battlefield would have endangered the lives of American service members. The 

defendant's profit would have been only approximately $120,000, showing the 

callousness with which many counterfeiters treat human life. I am pleased to report one 

defendant in this case investigated by ICE was recently sentenced to more than four years 

in prison. 

These cases are troubling and demand attention from criminal investigators and 

regulatory agencies. At ICE, we are prioritizing our investigative resources to focus on 

IP theft enforcement that protects health and safety including the safety of our soldiers 

serving abroad and protects the American economy. 

CONCLUSION 

Thank you for the opportunity to appear before you today to discuss the work of 

ICE in protecting U.S. intellectual property rights. I would be pleased to answer any 

questions that you may have at this time. 

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Mr. GOODLATTE. Thank you, Mr. Morton. 

Mr. Abrams, welcome. 

TESTIMONY OF FLOYD ABRAMS, SENIOR PARTNER, 

CAHILL GORDON & REINDEL LLP 

Mr. ABRAMS. Thank you. Mr. Chairman, Mr. Ranking Member, 

Mr. Chairman, Mr. Ranking Member, Members of the Committee, 

I appreciate the opportunity to be here today and to offer a few 

First Amendment views on the topic you have. 

You have got three competing, sometimes overlapping themes 

here today. We deal with the Internet, which is probably the greatest enabler of free speech by everyone in the history of the world. 


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187 

We deal with the copyright law which is a great enabler of free 

speech by providing a basis for people to engage in it, to create, and 

to profit from it. And we deal with the First Amendment which 

limits the ability of government in many areas to control free 

speech. 

That we deal with the Internet does not mean that we are dealing with an entity that is so unique that we must act as if we are 

in a law-free zone. The law is the same with respect to libel on the 

Internet as it is with respect to libel in a newspaper. The law is 

the same with respect to invasion of privacy on the Internet as it 

is with respect to television broadcasts, and the law is the same 

with respect to copyright on the Internet and off the Internet. 

It is simply then not so for some people to suggest that the Internet is the wild west and that we should leave it that way. Even 

the wild west had sheriffs and even those who use the Internet 

have to abide by our laws. 

Now, how should you address the question which every Member 

of this Committee has agreed is a significant one and, indeed, a 

dangerous one as it currently exists in a way that complies with 

the First Amendment? 

First, any legislation has to be narrowly drafted, really narrowly 

drafted so it only impacts websites, domains that are all but totally 

infringing. We don’t want a situation, either as a matter of public 

policy and certainly not as a matter of the First Amendment, 

where we are wiping out in some sense or blocking in any sense 

protected speech. But if an entity, as so many of the ones at issue 

here are, is nothing but a transmitter of infringing products, which 

is to say acting criminally under our laws, you are permitted to 

deal with it so long as you do so without getting into an overbreadth situation. 

I suggest to you that so far as you can, you ought to base any 

legislation on the law that currently exists. You don’t have to start 

from scratch as if there is nothing that can guide you. We have a 

copyright law. We have means of enforcement. Injunctions have 

been issued by courts since 1790 when the copyright law was first 

enacted by Congress before we even had a Bill of Rights. 

I would recommend to you that any legislation should include 

some reference to and, I would urge, inclusion of Federal Rule 65 

which is the Rule of Civil Procedure which deals with the modalities of assuring that people have notice to appear, that judges don’t 

have to issue injunctions, but that they may do so, and which provides great procedural protections for all that may be affected by 

legislation. 

And I would simply sum up what I have to say in greater length 

in my prepared statement by saying that by enacting legislation in 

this area, we are not abdicating America’s leadership of the world 

with respect to freedom on the Internet. We are simply enforcing 

well established, deeply rooted, frequently abided by, until rather 

recently, copyright law which exists for the purpose of furthering 

free expression in the first place. There is no constitutional right 

to steal someone else’s intellectual property. And I urge the Committee to act with that in mind. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Abrams follows:] 

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Testimony Before the Subcommittee on Intellectual Property, Competition, 

and the Internet, Committee on the Judiciary 

United States House of Representatives 

112th Congress, 1 st Session 

Floyd Abrams 

Seuior Partner, Cahill Gordon & Reindel LLP 
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Chairman Goodlatte, Ranking Member Watt and Members of the Committee: 

Thank you for the opportunity to testify before your Committee today regarding 

online commerce and the challenges of legislating and enforcing copyright and piracy laws in an 

Internet age. I am a senior partner at the law firm of Cahill, Gordon and Reindel in New York 

and the author of "Speaking Freely: Trials of the First Amendment." T appear today at your request, speaking on my own behalf. For your information, I have previously advised, in writing, 

the Directors Guild of America, the American Federation of Television and Radio Artists, the 

Screen Actors Guild, the International Alliance of Theatrical and Stage Employees, and the Motion Picture Association; of my view that legislation introduced in the Senate relating to online 

privacy of copyrighted works was consistent with the First Amendment. 

While I will discuss potential legislative approaches to online intringement in 

some detail today, T think it is useful to start with a few broader observations regarding the application of copyright law and the First Amendment online 1 begin with what should not be controversial. 

The Internet is one of the greatest tools of freedom in the history of the world. 

That is why there is an "urgent need" to protect freedom of expression on the Internet throughout 

the world, as Secretary of State Hillary Clinton observed last month. At the same time, however, 

Secretary Clinton pointed out that "all societies recognize that freedom of expression has its limits," and that those who use the Internet to "distribute stolen intellectual property cannot divorce 

their online actions from their real world identities" -- indeed, our ability to "safeguard billions 

of dollars in intellectual property [is] at stake if we cannot rely on the security of our information 

networks." 

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It is no answer to this challenge to treat loose metaphors-the Internet as "'the 

Wild West," for example-as substitutes for serious legal or policy analysis. It is one thing to 

say that the Internet must be free; it is something else to say that it must be lawless. Even the 

Wild West had sheriffs, and even those who use the Internet must obey duly adopted laws. 

Thus, it is no surprise that libel law routinely applies to material that appears on 

the Internet just as it does to other material. And that libel precedents regarding printing information on paper are just as applicable to information posted online. (A recent holding to that effect 

was the Fifth Circuit's ruling in Nationwide Bi-Weekly Admillistration, lnc. v. Bela Corp.) And, 

as well, that principles of privacy law are applied to personal infonnation posted online, just as 

they are to personal information when recorded in more traditional media (That approach was 

affirmed in Benz v. Washington Newspaper Publishing Co.) 

Copyright law is no different. One current treatise succinctly notes, "[a]ll existing 

copyright protections are applicable to the Internet." The seizure provisions of copyright laws 

have been applied to authorize the seizure of online property that facilitates infringement, such as 

domain names, just as physical property has often been seized to stop its use to facilitate infringement. Under current law, for example, recent enforcement actions against infringing sites 

involved seizing and locking domain names, and compelling registries to route visitors to a government address notifying the public of the seizures. 

Copyright law has existed throughout American history. The Constitution itself 

authorizes Congress to adopt copyright legislation. The first such legislation was enacted in 

1790, a year before the First Amendment was approved by Congress. And from the start, injunctions were one fonn of relief accorded to victims of copyright infringement. Courts applied the 

first copyright act to grant injunctions under traditional principles of equity. Since injunctions in 

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cases outside of the specitic copyright context have been held to be unconstitutional prior restraints on speech, including the landmark Supreme Court cases of Near v. Minnesota and Nell' 

York Times Co. v. United States, there has been an ongoing debate about the application, if any, 

of the First Amendment to copyright principles. Indeed, the question of whether and, if so, how 

certain elements of the Copyright Act should be read to accommodate various First Amendment 

interests remains open. 

The law could not be clearer, however, that injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations. That premise was explicit 

in the critical concurring opinion in the Supreme Court's most famous prior restraint case, assessing publication of the Pentagon Papers in New York Times Co. v. United States. As Justice 

Byron White's concurring opinion observed in that case, "no one denies that a newspaper can 

properly be enjoined from publishing the copyrighted works of another." 

Current treatises reflect this judicial consensus. To quote from the 2010 Practicing Law Institute discussion of prior restraints, which I authored with my colleague Gail Johnston: "[Clourts have found no constitutional obstacle to enjoining, pursuant to federal legislative 

mandate, the unlawful use of a registered trademark or copyright." Similarly, in an article focused squarely on the issue of injunctions in the copyright arena, Judge James L Oakes observed 

that a "pirated or copied edition, record, movie, song or other work ... cries out for an injunction." 

The Supreme Court's most detailed treatment of the interrelationship between the 

First Amendment and copyright, the seminal case of Hat per & Row Pubfishers, Inc. v. Natiofl 

Fnterprises, stressed that the Copyright Act actually advances the very interests which the First 

Amendment protects. 

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'"First Amendment protections," the Court noted, are '"already embodied in the 

Copyright Act's distinctions between copyrightable expression and uncopyrightable facts and 

ideas." The Constitution supports the explicit protection of such expression and creativity, the 

Court stated, within a framework that defends both the right to speak and the ability to profit 

from speech. "[T]he Framers intended copyright itself to be the engine offree expression," explained the Court, and "[b]y establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas." Copyright law thus fortifies protections for speakers and creators, in a First Amendment context, while stimulating future 

creati vi ty. 

These mutually reinforcing linkages between protections for speech and protections for copyright are especially important in today's digital age. The Center for Democracy 

and TechnoIOb>Y's David Sohn, who testified before this Committee to raise concerns about targeting rogue sites -- and who does not share all of my views in this area -- recently stated a 

proposition with which I think there can be no serious disagreement: "Large-scale copyright infringement undermines First Amendment values in promoting expression and threatens the 

growth of new media." 

Of course, the evident constitutionality of injunctive relief for copyright violations 

does not mean that injunctions must automatically or always be issued in response to a copyright 

violation. As this Committee is well aware, the Supreme Court has recently held to the contrary, 

warning against the error of a "categorical grant" of injunctive relief for patent infringement in 

eBay Inc. v. MercExchange. The Second Circuit applied that conclusion in a recent, celebrated 

copyright case, Salinger v. Colting What no court has ever denied is that injunctions are a valuable and constitutional response to copyright violations. 

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With these foundations in mind-the Internet is not a law-free zone, and copyright law with injunctive relief has always been part of the constitutional framework protecting 

free speech-I turn to a few priorities worth considering when legislating in this area. 

Your hearings are entitled "Promoting Investment and Protecting Commerce 

Online: Legitimate Sites v. Parasites," drawing an important distinction between two types of 

sites on the Internet. In the copyright context, legitimate sites distribute work that they own or 

may legally use through fair use principles, or otherwise, while parasites distribute work that 

they have stolen. A sound policy to combat infringement must target these infringing web sites, 

without overly burdening legitimate ones. In fact, I think it is fair to say that the primary constitutional questions that must be addressed in shaping legislation in this area revolve around this 

very distinction: How do we separate infringing sites from legitimate sites? Or, in First Amendment lingo: What is the potential overbreadth of a reh'lliation's impact on speech, and what procedural protections must a regulation provide to satisfy First Amendment nonns~ 

Potential Overbreadth 

It is axiomatic in First Amendment jurisprudence that government restrictions on 

speech should be narrowly tailored to avoid unnecessarily burdening protected speech 

Courts apply strict scrutiny to statutes that potentially interfere with protected speech, with special scrutiny of rules that may sweep too broadly. This Committee must thus consider the potential overbreadth of any legislation impacting speech, including legislation designed to combat 

online infringement and piracy. I offer a few questions to consider in doing so, in the context of 

legislating against online infringement. 

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First, how does a bill define the requisite level of infringement that the government must prove in order to seek remedies against particular content, or a given site or domain~ 

In other words, how high is the bar set? A "zero tolerance" policy towards any instances of infringement enforced at the level of a website or domain -- where an entire website could be 

blocked or seized for a single, or just a few, offenses -- would plainly raise the most troublesome 

First Amendment concerns. By contrast, setting a high bar, by statute, can help avoid the risk of 

unnecessarily burdening protected speech. 

The Combating Online Infringements and Counterfeits Act, or "COICA," which 

was sent to the floor by the Senate Judiciary Committee in the last Congress, provides one potential approach to establishing such a bar. The bill would establish a statutory category of sites that 

are "dedicated to infringing activities," defined as sites that are "marketed" or "primarily designed" for infringement, or have no other "commercially significant purpose or use" besides 

infringement. Such infringement is detined under current copyright and trademark law, and 

which would otherwise be "subject to civil forfeiture". Thus for copyright violations, a site must 

be "dedicated to infringing activities" and offering goods or services in violation of title 17 

U.S.C, or facilitating such violations by means such as downloading, streaming, transmitting or 

linking. For trademark violations, a site must be "dedicated to infringing activities" and offering, 

selling or distributing goods, services or counterfeit materials in violation of section 34(d) of the 

Lanham Act (15 USC 1116(d». There are obviously other words that might be used to describe a site subject to regulation in this area, but however phrased, the speech at issue must be 

overwhelmingly violative of the Copyright Act for any such regulation to be constitutional. 

Beyond setting the bar high, another issue is how authorities carry out enforcement actions in a manner that respects First Amendment norms. In an action that drew signifi-

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cant attention, on February 15,2011, the Homeland Security Department seized several domain 

names on child pornography charges and accidentally blocked other web sites that had not been 

deliberately targeted. Media reports estimated that up to 84,000 sites were temporarily shut 

down. Three days after the seizure, the Homeland Security Department acknowledged that it had 

"inadvertently seized" a "higher level domain name," which impacted other sites, and the department sought to restore those sites "as soon as possible." Such an error, even for a short period of time, is obviously of great concern and it is important to explore how safeguards and 

technical standards might be effectively incorporated into legislation to prevent or minimize such 

abuse. 

Third, how does a bill compliment or interact with existing remedies against infringement and piracy? Under current copyright law, for example, copyright violations can be 

remedied by injunctive relief, forfeiture or impoundment. Statutory schemes that follow these 

approaches, and include their protections and processes under federal precedent, are likely to operate on a clearer, more sound constitutional foundation than remedies that are developed from 

scratch. Indeed, while the Internet does pose some novel and unique regulatory challenges, 

Congress should generally aim to apply already existing standards wherever possible, rather than 

treat cyberspace as a land with laws unto itself. 

Fourth, does a bill's remedy focus on combating infringement where it occurs, or 

does it act as a bar to future, protected speech? Any bill providing injuncti ve relief should be 

limited to halting infringement and prohibiting future infringement online, not acting as a prior 

restraint on protected speech in the future. For example, if a site or domain is seized or blocked 

for infringement, operators must be free to post all their non-infringing content elsewhere, as 

well as on their original site, once the infringing content is removed. Indeed, I do not think a 

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court would tind constitutional any regulation or order barring individuals from finding ways to 

use the Internet to post or relocate protected speech. 

Procedural Protections 

The Constitution requires due process for all, and the procedural protections at: 

forded to expression, for speakers and listeners alike, carry special weight in First Amendment 

law. Individuals accused of infringement, by the government or civil litigants, must be afforded 

notice and an opportunity to be heard. Thus the most straightforward approach in this area, both 

constitutionally and practically, is to ensure that any new legislation provides the same process 

and protections that federal litigants currently have when facing the possibility of injunctive 

remedies. 

One way to achieve this aim is to incorporate Rule 65 of the Federal Rules of 

Civil Procedure into legislative proposals in this area. That would ensure that any injunctive relief against infringing sites is governed by the rules protecting all litigants in civil actions in the 

United States today. That is the approach ofCOICA, and while this Committee will make its 

own, independent judgments about how best to craft a legislative approach to combat infringement, the inclusion of Rule 65 is a worthwhile element in any regulatory framework. 

Under Rule 65, courts "may issue a preliminary injunction only on notice to the 

adverse party." For temporary restraining orders to be issued without notice, Rule 65 requires 

that two conditions must be met. "[S]pecific facts in an affidavit or verified complaint [must] 

clearly show that immediate and irreparable injury, loss, or damage will result .. before the adverse party can be heard in opposition." And "the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." The rule then requires 

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that hearings for orders without notice are to be held "'at the earliest possible time, taking precedence over all other matters," and the adverse party may move to dissolve or modify an order on 

two days' notice to the moving party. Therefore, a website operator that prefers to respond later, 

or learned of an action later because the operator did not provide accurate contact information to 

the registry, would still retain the right to seek later relief from the order. 

In the cases of delay caused by the submission of false contact information to a 

domain registrar, a relevant complication for many infringing and foreign web sites, it is worth 

noting that federal copyright law already treats the knowing submissions of "materially false 

contact infonnation to a domain name registrar" as a rebuttable presumption of willful infringement. In a similar vein, some operators of infringing websites, including operators abroad, may 

knowingly decline to participate in U.S court proceedings. Such a choice, after legitimate notice 

and procedural safeb'llards are provided, can lead to ex parte proceedings and default judgments. 

Courts routinely enter default judgments in civil lawsuits, including comparable online copyright 

cases. Indeed, under current law, after initial notice has been served, courts have granted permanent injunctive relief for copyright violations in default judgments without additional attempts at 

notice. 

Nonetheless, the ultimate test for any legislation providing injunctive relief is not 

the words in the statute, but the words of ajudge interpreting or passing judgment upon its validity. While a court is empowered to grant injunctions, it need not. While a court is empowered to 

grant temporary restraining orders, it may not. That does not excuse Congress, of course, trom 

its duties to craft constitutional legislation and carefully weigh the tradeoffs in a given public 

policy. The irreplaceable role of an independent judicial officer should anchor, however, our 

reasonable expectation that legislation which provides proper process will ensure website opera-

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tors accused of infringement and piracy shall be entitled to their day in court. Whether they accept or evade that obligation will be up to them. 

Conclusion 

Addressing infringement and piracy in a manner consistent with our constitutional 

protections for speech is an important and complex challenge. The Senate has already chosen 

one route, which I believe would be held constitutional, and whether this House chooses to legislate similarly or not, it should plainly take the greatest care to abide by First Amendment nonns. 

I otTer a tinal thought about the broader debate. I would like to directly acknowledge that potential action by Congress in this area has drawn objections from groups and individuals advocating their deeply held beliefs about civil liberties, human rights and a free Internet, 

including many groups that I have worked alongside, and for which 1 have the highest regard 

Among a range of obj ections, however, two core critiques stand out. 

First, there is a recurring argument that the United States would be less credible in 

its criticism of nations that egregiously violate the civil liberties of their citizens if Congress 

cracks down on rouge websites. 

Second, there is the va~,'uer notion, which I discussed earlier, that stealing is somehow less otTensive when carried out online. 

Neither of these propositions is correct. 

Copyright violations are simply not protected by the First Amendment. Rogue 

web sites, which live off theft and are plainly dedicated to infringement and piracy, are not engaging in speech that any civilized, let alone freedom-oriented, nation protects That these in-

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fringing activities occur on the Internet makes them not less, but more harmful. The fear that by 

combating these specific acts through legislation, the United States would compromise its role as 

the world leader in advancing a free and universal Internet seems to me insupportable. As a matter of both constitutional law and public policy, the United States must remain committed to defending both the right to speak and the ability to protect one's intellectual creations. Legislation 

designed to enforce old laws in a new, wired era does not thwart the constitutional right to engage in speech. Quite the opposite. It protects creators of speech, as Congress has since this Nation was founded, by combating its theft 

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200 

Mr. GOODLATTE. Thank you, Mr. Abrams. 

Mr. Walker, welcome. 

TESTIMONY OF KENT WALKER, SENIOR VICE PRESIDENT 

AND GENERAL COUNSEL, GOOGLE 

Mr. WALKER. Thank you, Mr. Chairman, Ranking Member Watt, 

Mr. Chairman, Mr. Ranking Member, Members of the Committee. 

As you have mentioned, Mr. Chairman, before I joined Google, I 

was a Federal prosecutor. As an Assistant United States Attorney, 

I prosecuted cyber crime. I brought some of the first cases against 

criminal copyright enforcement in the country. I recognize the challenges and the difficulties of protecting intellectual property online. 

The legal issues that we will discuss today are complex and challenging. They require thoughtful approaches to preserve and enhance the benefits of the Internet for consumers and businesses in 

America and the world. And Google is dedicated to addressing 

issues of online copyright infringement and counterfeiting. We 

know that the future growth and the success of our industry relies 

on fighting the bad guys who break the law. And we stand ready 

to support further enforcement measures against rogue foreign 

websites, focusing on financial transactions and advertising where 

those measures are appropriate and narrowly targeted against the 

worst of the worst foreign websites, in line with Mr. Abrams’ comments this morning. 

We do have concerns, however, about extending new law to dictate natural search results. We would like to work together to ensure that these efforts are effective, while not harming legitimate 

services and technologies that drive U.S. economic growth and our 

country’s leadership in the global information economy. 

Let me share several ways that Google combats copyright infringement and counterfeiting and then discuss principles for how 

to address rogue foreign websites. 

At YouTube as, Mr. Chairman, you recognized, we designed a 

powerful tool that rights holders use to block or monetize infringing 

content. Our content ID system, developed using 50,000 engineering hours at a cost of over $30 million, scans every video uploaded 

to YouTube and typically within seconds compares it against more 

than 4 million reference files provided by rightsholders. Today over 

1,000 media companies, including every major U.S. studio and 

record label, use content ID, and most of them choose to monetize 

rather than to block the content. This shows the win-win possibilities that Internet technologies can bring, getting money to 

rightsholders and innovative services to users. 

When it comes to online services like our search engine, a major 

part of the explosive growth of the Internet in the United States 

and around the world is due to the strong legal foundation created 

by Congress in the Digital Millennium Copyright Act. Last year, 

Google processed over 3 million DMCA takedowns across our products, including search. These came from copyright owners of all 

sorts from big movie studios to small publishers of needlepoint patterns. And currently Google engineers are building new tools so we 

can act on reliable copyright takedown requests on our search engine within 24 hours. We are already testing the new tool with a 

201 

content industry partner and we hope to invite other partners into 

that test in the weeks ahead. 

When copyright owners tell us about infringement, we disable access to the infringing content whether that content comes from foreign or domestic sources. The shared responsibility of the DMCA 

works. It assures that online platforms like Google or Facebook or 

Twitter will not face crippling liability when users post comments 

or files to online sites. And as we committed last year, we are already excluding several piracy-related terms from appearing in 

‘‘autocomplete,’’ a feature on Google that predicts queries as users 

type. And we have asked content industry representatives to provide other terms for consideration. 

Turning to our advertising programs, in AdSense we prohibit ads 

on infringing web pages and we use automated and manual review 

to weed out abuse. Last year alone, we took action on our own initiative against over 12,000 sites for violating that policy. 

To address counterfeiting our policies ban selling ads to advertisers who market counterfeit goods, and they always have. We use 

automated tools to prevent violations of our policies, and last year 

alone, we invested over $60 million in these efforts. After all, a 

Google user who is duped by a fake good is less likely to click on 

another Google ad. So the integrity of the sponsored links on our 

sites is of paramount importance to us. In the last 6 months of 

2010 alone, we shut down 50,000 accounts for attempting to advertise counterfeit goods, and 95 percent of those shutdowns came not 

as a result of a complaint but as a result of our own efforts. While 

it sounds like a lot—and it is—the legitimate complaints we received concerned less than one-quarter of 1 percent of advertisers. 

We have also committed to an average response time of 24 hours 

to handle counterfeit complaints involving sponsored links, and 

that too is in process and should be rolling out fairly soon. 

So finally, as you address the challenge of rogue foreign sites, I 

would ask that you keep in mind the following three points. 

First, aim squarely at the worst of the worst foreign websites 

without hurting legitimate technologies and businesses. We agree 

with the goal of going after websites that are outside the reach of 

U.S. law and whose main purpose is commercial infringement. Procedural safeguards are critical, though, to ensure due process and 

to avoid mistakes costing legitimate businesses the use of their domain names. 

Second, don’t rewrite the DMCA and existing law that works. 

Businesses benefit from stable and predictable rules with clear 

standards. Targeted legislation to address rogue foreign websites 

must not inadvertently dismantle the legal framework that America’s technology companies and innovators rely upon. The DMCA 

strikes the right balance between thwarting infringement and preserving free speech and we should build upon it, not undermine it. 

Third and last, tailor intermediary obligations appropriately. Let 

me repeat Google is open to working with the Subcommittee on additional enforcement tools. Search engines already remove infringement by domestic and foreign sources, so we think it is right for 

additional measures to focus on financial transaction providers and 

advertising services, both of which Google provides. But any legislation should avoid a private right of action that would invite 

202 

shakedowns against companies making good faith efforts to comply 

with the law. 

To sum up, these are complex issues. We need to address the enforcement problems, while protecting the overwhelmingly positive 

benefits of the Internet for our country and the world. And we look 

forward to working with each of you to do just that. 

Thank you very much. 

[The prepared statement of Mr. Walker follows:] 

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Walker-1.eps

Testimony of Kent Walker, Senior Vice President and General Counsel 

Google Inc. 

BefOl"e the House Judiciary Subcommittee on Intellectual Pl"Ope .. ty, Competition, and the Intemet 

Hearing on "Promoting Investment and Protecting Commerce Online: 

Legitimate Sites v. Parasites, Part II" 

April 6, 2011 

l'hank you Chairman Goodlartc, Ranking ~\klnhcr \Vatt, and l11cmhcrs of the Suhconunittcc for this 

opportwlity to testify. 

T am Coogle's Senior Vice President and General Counsel. As a Fonner federal prosecutor, T am well <lv/are 

of dle need to enforce la\vs against dle infringel11ent of intellectual property rights, the c01l1plexities of such 

cases, and the fact dlat dle lnternet can be used for unlmvful purposes, often by sophisticated criminals. As 

an assistant U.s . .:\ttofney til San Francisco, 1 specialized in cybercrime and brought one of dle first crtlninal 

copyright infringt·ment cases in the country. T was also involved in the successful prosecution of a prominent 

computer llacker. 

Google supports developing elTective policy and technology tools to combat large-scale commercial 

infringelnent. As I'll describe belo\v, Google has dedicated tens of Inillions of dollars tll engineering and 

odler resources to help \veed out notorious bad actors . .out such activity accounts for only a very snull 

percentage overall of the creative, political, social, and conunercial opportLUlities created and elnpo\vered hy 

the web. As this Subcommittf'e considers nev,: enforcement tools against rogue foreign \vebsitf's, it should 

not jeopardize the legitinlate T nternet ~enTice~ and technologies that underlie the United States' lead in the 

global infiJtlllation economy. 

~ty testinlOny ,vill focus on three 1natll POtl1ts. First, 1 \vill underscore ho\v dle lnternet is a critiCal driver of 

..'tinerican econonlic gro\vth and joh creation, and offers enOimous henefits to creators. Second, 1 \vill 

highlight the tllany \vays in ,vhich C~·oogle leads thc industry .in hclptllg to cOlnhat copyright tllfi:tllgetllcnt and 

the sale of counterfeit goods online. flinally, T offer recomnlendations for addre~~ing the exceedingly 

complex challenge of rot-,l1.1e foreign \vebsites. 

The Internet Drives U.S. Economic Growth and Delivers Enormous Benefits to Creators 

Internet teclulologie~ are u~ed every day in a1TI<lzing (Uld perfectly legal 'vays. \X"idlout question, dle 

infonnation technology industry is dle fastest grm.Vtllg bu~iness sector tll dle ,vorld, regularly experienctllg 

double-digit g1·mvth and accounting for nearly one-fourdl of our nation's real GDP g-rmvth. The Internet 

adds an estimated $2 trillion to annual GDP. lnteractive advertising alone is responsible for $30U billion of 

cconmll.ic activity in the U.S., erllploying 3.1 Inill.ion .A.mcricans. 
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Walker-2.eps

For just over a decade, ( ioogle has invested in the power of the Internet to bring groundbreaking ne\\/ 

services and technologies to r11illions of users around the world. Today we ha\'e rllore than 2-t,nnn etllployees 

\vorkh,'vide, and "\ve recently announced that 2011 \vill be the big,gest hiring year in our conlpany)s history. \"\/e 

offer search, advertising, ;md other products dut help other businesses thrive. In 20U9, for exanlple, Google 

estuTlated dlat our search and advertising tools generated $54 billion Ul economic activity ill the U.S. alone. 

But the Internet is about t11uch r110re than just ( ioogle or other leading U.S. Internet c0111panies like 

Facebook, Twitter, .tU11aLon, and eBay. The Internet has been a boon to businesses of every kind and siLe 

across the country. 11K' efficiencies of the web reduce transaction costs for suppliers and consumers in every 

sector, ,vhile creatulg entirely ne,v lllarkets. l1unks to dle Internet, it's never been easier to start a business 

and reach a ,vide audience. Ivlore dun a million small and large advertisers use Google as a platform to find 

cust01llers in an increasingly glob·alr11arketplace-fr0111 'f\viddy, a vacation rental business in North C":arolina 

that attributes recent g[{J\l,:th and job creation to Google's advertising tools, to two brothers in Austin Texas 

who usc ( ioogle to grow loyalty and detlland for preIlliutll YETI Coolers, certified to \\;ithstand srmLc;hing by 

hungry E-,Tfizzly bears 

The u1110vations brought about by dle Internet econolny have also delivered enonnous benefits to content 

creators. Google elnpo"\vers traditional artists and an etnerg-ing generation of ne'll creators to promote dleir 

work to a globlli audience. Google drives traffic to creators' websites, sendmg, for example, fi)ur billion clicks 

a r110nth to news sites. Every r11inute, users upload 3S hours of video content to our YouTube site. 

YouTubc has allO\ved performers to rocket from oblivion to fame; has given politiCIans, pundits, and 

protesters a pmverful ne"\v,vay to cotTI1Tlunicate; has facilitated citizen jounlalistTl; and has inspi1:ed laughter at 

the antics of dancing babies. 

From its startup phase Ul 2005, You'rube is nmv monetizulg for content owners over 3 billion video vie,vs 

per \veek. \\le create rC\TnUe for nlore than 20,no() partners, including tllainstream rlledia cor11panies like 

ABC and Cnivision and individual members of the YouTube partner program, hundreds of \vhom arc 

makinglnore than six ttgures a year. Record labels are no\v makinglnillions of dollars a month on YouTube. 

Today over 1,000 Inedia companies-ulcludulg every 1najor U.S. net'-vork broadcaster, movie studio, and 

record label-use dle copyright protection tools dlat You'rube ofTers, and a Inajority of dlenl choose to 

monetize rather dlatl block their content online. 

\X7ith the explosiH~ growth of the Tnternet and skyrocketing demand fix Tnternet-enablcd devices, companies 

that rely on itnportant lifl11tations built into U.S. copyright law have risen quickly to become a central 

foundation of the Alllerican economy. Tnnovation-friendly 111Tlitations and exceptiolls, principally tlir use and 

the safe harbors of the Digitallvlillennium Copyright Act (D_,\ICA), work alongside copyright's exclusive 

rights to foster an unprecedented level of creativity atH.i expression that fuels dle economy. It is no 

exaggeration to note that the D_~v'lCA set the legal foundation for e-COn1I11erce. The Computer and 

Communications Industry Association has found that industries that rely on fair usc and other limitations 

generate $""'-.7 trillion in revenue, represent one sixth of total C.S. CDr, and support 17tTlillion jobs. \\ioile 

onl11le ptracy r(:'l1lams a seftous ellfOrCell1ent probletTl, 've should not lose stght of the overall balance of our 

nation's copyright la\vs, "\vhich continues to spur a broad anay oLA111erican-bred creativity and ulnovation. 

2 
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Walker-3.eps

How Google Protects Copyright 

Google believes strongly in protecting copyright and od,er intellectual property rights. We understand that 

despite the oven.\Theltningly positive and legitilllate uses of lnternet services and technologies there "\\Till he 

some who misuse these for infringing purposes. Googlc invests millions of dollars in engineering and other 

resources to help rightsholders fight this lnlsuse. Across our search ellg111e and hosted products, we remove 

Of disable access to millions of infringlng materials each year at the rt'ljlH:'st of copyright O\1tners. \"\7e abo 

voluntanly take several steps vlel1 beyond our legal obligations. 

C~-oogie has heen an industry-leader in developing innovative l11easures to protect copyright and help 

rightsholdcrs control their content online. To date, Googlc has e:'<..pended more than 50,000 engineering 

hour~ and tTlore than $30 minion to develop Content TO, our cutting-edge copyright protection tool that i~ 

helptng nght~holders make money on YouTube. ThlS pClIverfl.l1 technolof:,l)"' ~cans every vtdeo uploaded to 

YouTube and, vlithin seconds, cOtTlpares it again~t nlore than -J. tTlillion references files provided by 

participating rightsholders. Copyright holders and ilieir advocates-from d,e ,'vIP j\-\ to Nl3C to Warner 

~tusic-have praised YouTube as a bright light in copyright protection. 

\"\7e are also vlorking on other tTlajor \'oluntary initiative~ to help protect copyright. \"X/e cotTltTlitted last year 

to prevent tetl11S that are closely associated \vith piracy trotTl appearing in AutocotTlplete. \"X/ithout altering 

search re~ults, Autocc)1Tlplete i~ a feahlre that algorithtTlically predicts and cltsplays LJuene~ as u~ers type based 

on what other users have typed. \Ve have begun working to prevent several piracy-related tenns fr01ll 

appearing in Autoc01llplete, 3nd hm'e 3sked content industry represent3ti"\'es to suggest other tenllS for 

consideration that "\von't o"\'erly restrict legitunate speech. \Ve arc also hard at "\vork on a ne"\\' ulitiati"\T to 

rnake authoriLed pre\'iew rllusic content appear lllorc readily in search results. 

\"\7ith the flexibility to innovate on top ofba~eline legal reginle~ like the O~-rC:'\)~ notice and takedo"\vn 

proces~, Coogle is able to de~ign these extra efforts in "\vay~ that help both right~holders ;md users, 

encouraging 1llore people to search, tind, and enjoy the legitllllate otIerulgs m'ailable on the web. 

Like all Internet cC)1llpanies, the critical foundation for our anti-piracy efforts relll<llns the Dil/leA, the selllinal 

la\v ConhTfe~s passed in 1998 to addres~ copyright protection online and pr01Tlote the v.;orldv.;ide expan~ion of 

e-comnlerce. Congress rightly under~tood that sOtTle lTlaterial posted by the millions of people "\vho u~e 

onlule services infringes copyright, iUld that onlule service providers in the ordinary course of their operation~ 

engage in COpyUlg iUld odler acts dlat expo~e thenl to potential copyright liability. Congres~ also recognized 

that requiring online p[{widers to engage in pre-screening of every user-posted te:x.t, picture, and \'ideo \\:ould 

inhibit free e:x.pression and stifle the gro\\'th of the Internet. 

Through the O\{CA, Congres~ establi~hed a notice-and-takedown proces~ that provide~ copyright owners 

expeditious recour~e "\vhen dley discover ulfrinsrenlent online while also giving onlule ~ervice providers the 

certauTty nece~~ary to ulvest in Intenlet ~ervices and technologies. The careful bal.iUlce ~truck by dle D11CA 

created the lcgalinfrastructure for the Internet \\'e hllO\\' today. The D_\--1CA safe harbors rnake possible 

online platfonns like eBay, j\..rnazon, YouT ube, Facebook, and Twitter, which in turn have wllcashed new 

sources of creati\·ity, econ01llic de"cloprnent, and jobs. 

fhe D_\lCA's shared responsibility approach works. Copyright holders identify infringement and, if dley 

choose, request it~ removal. Cpon notification, online setvice providers like Coogle relTlOVe or disable acce~s 
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Walker-4.eps

to the infringing l11aterial. This approach rllakes sense, as only copyright holders know \vhat rllaterial they 

0\"\'11, ,vhat dley have licensed, and \'lhere they \vant dleir ,vorks to appear online. Service providers cannot by 

theIllseh es detennine \vhether a given usc is infringing. A text, song, itnagc, or video can infr.inge copyri~lt 

in the context of one site but be legal on another, through license or in the context of criticisl11, political 

speech, or other legally protected usc. E\'en copyri~lt owners therllsclves sOtnetulles have trouble 

detert11ining "\'lhether a use of dleir content is infringing. 

Copyright owners in 2010 called on Google to disable access to approxinutely 3 million allegedly infringing 

materials across all our products, "\\'hich accounts for far less dun 1 °'0 of all the materials hosted and indexed 

by Googk. \1?e received takedmvn notices by letter, fax, email, and \veb forms frorn all sorts of copyright 

owners including movie studios, record labels, adult entertainment vendors, and needlepoint pattern 

publi~hers, fron'l 70 countries and in a "\vide variety of1ant-,'uages. \,\7e maintain a t-,'1-o\ving team of en'lployees 

dedicated to receiving, revie,ving, and responding to D~.1Cl\ notices. \Xie check to nuke sure dlat dle notices 

are conlplete and are not attenlpts by conlpetitors or odlers to use invalid copyright claulls to censor speech 

\vith "\vhich they disagree. 

Last December, T announced that we \vill invest even lllore resources to sh-eamline the D\:rCA submission 

proces~. \"X/e are de~igning ne\v tools that \\'ill enable us to act on reliable copyright takedtnvn reLJuest~ within 

24 hours. 'l'hat ulitiative is ,veil undenvay, and we have already invested significant eng:ineerulg resources. 

1'he ne"\'l tool for \X/eb Search is already beulg tested widl a content industry partner, and dle 1310gger tool will 

begin testing next nl0nth. \X;e are also Ul the process of i111provulg our transp::lf'ency eHorts to notif~l site 

owners and our users \vhen content ha.<; heen renl0ved as a reslllt of allegations of ulfringenlent. 

\1.'/e also enlploy a wlde array of procedure~ and expend consKlerable finanClal resource~ to prevent our 

advertising product~ from being u~ed to lTlOnetize material that infringes copyright. flor exan'lple, our 

AdSense program enables webSIte publishers to display ads (Identilied by cile "ads by Google" looter) 

alongside their content. Our policies prohibit the use of this program for infrulging sites, and \ve use 

autonlated and nl3.nual revie\v to \"Ted out abuse. La.<;t ye::lf', \ve took action on o-ur own ulitiatiye against 

nearly 12,000 ~ites for violating this policy. \X.'e also respond swiftly when notified by rightsholders. \X.'e 

recently agreed to inlprove our i\dSense anti-piracy revie\v procedure~ and are working together "\vith 

rightsholders on better "\vays to ldentify web~ite~ that violate our policies. 

\Ve ::If'e also helpulg to lead industry-\vide solutions through our \'lork with the Interactiye _Adyertisulg Bureau 

(IAIl) , comprised of more than 4('() leading media and technology companies. . rhe L\Il has established 

quality assurance guidelines through \\/hich participating advertising c01npanies will take standardiLed steps to 

enhance buyer control over the placell'lent and context of advettising and build brand safety. La~t week, 

Coogle certified its compliance \vith these guidelines. 

Despite the best eHorrs of the online advertisulg uldustry, proactive lneaSllres \villneyer be a cOl11plete 

solution. Sonle publishers deliberately take steps to evade detection systel11s, lneanulg had sites will uTvariably 

slip through. "l'echnologically sophisticated players use tactics like "clo·aking" (sho\ving one version of their 

site to the public and a different \'ersion to ( ioogle) to evade the protections that Goo~e and other 

companie~ put in place. Because of these tactics, coupled with the sheer volU1Tle of ads senTed per day, 

finding a particular ad on the "\veb that has circU1Tlvented our ~ystenTs nTay alway~ be po~sible. \\ibile the 

industry is aggre~~ively g01ng after this abu~e, it i~ clearly a cat-cUTd-nTouse g<une to stay technologically ahead 

of the bad actors, and Google is c01ll1nitted to being an industry leader in eradicating this beh-;:l\'ior. 

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Walker-5.eps

How Google Helps Combat Counterfeiting 

Ju~t as in the oft1me ,vodd, people n"lisuse legitin~ate online services to tr~r to market counterfeit goods. This 

abuse hurts our users and our business; combating it is central to Googlc's operations. 1l1C integrity and 

quality of the sponsored links displayed alongside Coogle search results are of paran~ount ill'lport<mce to our 

overall success. A Googlc user duped by a fakc good is less likely to click on another Googk ad in the future. 

Por this reaS01L, Coogle undertakes enOl1LLOUS efforts to root out ads for sites that sell counterfeit goods. 

Googie has dear policies against advertising counterfeit goods, (Uxt ,ve expend considerable resources to 

enforce those policies. In the last SL ..... l110nths of ~()1( l, we shut dO\\ln approxunatcly 50,OO() accoLUlts for 

atteInptulg to usc sponsored lUlks to ad\'crtise countcrfeit goods, and lnore than 95°.'0 of thcse accoLults \\lcrc 

discovered through our o\vn detection efforts. Fven more ads thetTlselves \vere blocked on suspicion of 

poltcy violations. Our automated tools analY7.e thousands of sit,Tflals to help prevent bad ads from being 

shmvn in sponsored links. Last year alone \ve u~vested $6U million in efforts to prevent violations of our ad 

policies. 

Hut there is no silver bullet. Tt's a \vhack-a-mole problem, as \ve constantly \vork to improve our practices 

against sophisticated entities try111g to gatne our protections. \Vhile Google's tools are quite effective, it is 

incredibly dil1icult lor Google to identify a counterfeit product being advertised. This IS a challenging task, 

even for hrand o\vners. C)nlule advertisulg conlpanies, \vhich do not take possession of the good, C;lnnot 

kno\v for sure \vhether any particular itenl out of millions advertised is indeed a COl.U1tei"feit. As has ahvays 

been the case \vith ne\vspapers and offline advertising platfi.H111S, it is essentially impossible for Coogle to 

block all attetTlpted abuse. 

But we are neverdleless doing our part. \Xie have a fast and easy complau1t form for brand o\vners to notiE);-

us of ads for potentially counterfeit goods. Last nl0nth, Google a11110WlCed that for hrand o\vners \vho use 

this fonn responsihly, \ve \\rill conllnit to an average response titne of 24 hours or less. Drtlnd o\vner 

feedback is an important \vay in \vhich \ve itTlprove our systf'tTls-as \ve get tTlore data about bad ads, \ve get 

better at counteracting the ne\v \vays that bad actors try to galTle the systetTl. 

Similarly, we have clcar policies against placing Goog-Ie ads on third-party sites that sell or prornote 

cowlterfeit goods. As a practicalrnatter wc receivc \'Cry few cmnplaints frorn br·and O\\lners about this 

problem. Still, to ensure that our practices continue to scale as the \\:'eb grmvs, we have recently committed 

to working n~ore closely \yith br(uxt mvners to identify violators. 

Google also regularly cooperates \.vith a \vide array ofla\.v enforcement audlorities, ulcludulg \vorking \.vidl 

officials to c01nbat counterfeitulg. For instance, an enforcetnent tnanager at Rosetta Stone has d12Ulked 

Googk employees for providing him and the Secret Service \\lith tremendolls assistance that led to sol\'ing a 

$100,000 fraud case. Google's Trust & Safety tearn also has trained thousands ofla\v enforcement ofttcials 

on evolving investigative techniques on the web and etnerging trends that Coogle is seeing, all of \vhich aid in 

la\v enforcement efforts. 

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Walker-6.eps

The Complexities of Rogue Foreign Sites 

Coogle under~tands the SubCOtTltlltttee's desire to consider additional "\vays to combat fogue foreign ,vebsites 

that traftie in infringing goods yet are outside dle reach of U 5. legal process. \X"e urge dle Subcomlnittee to 

seek input fro111 a broad base of stakeholders ;md avoid approaches that threaten dle grm:vth of ne'll 

technologies that benefit rightsholdcrs and COllSLllllCrS in an increasingly social, 1110bilc, and inter-connected 

world. \'?c support increased intcrnationlli cooperation aIllong govCf1l111cnts to enforce the law, rccogni:tlng 

that LUlilatcr-al dmllcstic cnforccrllcnt tactics arc lirnitcd in their cffccti\'cncss and rnay risk rct"aliatioll against 

legitimate American businesses by other countries. 

Po/i':."ymaketJ s/JOuld ai!!! J"quare!y tJt the ()l'Orst-~ft!Je-Jl'Or.ft"foreigff )j)elmtes mthollt mSlZariffg legltimate te(hffohgies (lfid 

bu.rim!.I".I"e.I". Addit.ional enforcerllent tools should target only those \\'ebsites that arc outside the reach of U.S. 

legal process and whose Imun purpose is c01lll11ercial infringerllent. \"\"here U.S. lcgJ.l process is capable of 

reaching a particular \\'ebsite or a site consents to such jurisdiction, new causes of action arc unnecessary and 

\vililead to actions that overlap or are potentially inconsistent vlid1 existing la"\v. 

Deftning "\vhat is a rogue site is not a simple task. Technology advances often lead to eyolving areas of 

copyright la\v, as courts sort out the application of con11110n la\y doctrines to ne"\v tecl111010gies. l\n 

overbroad deflllition of a rogue site could easily ensnare rllillions of popular C.S. websites that 'allow users to 

sell goods or upload content. \\?ebsites that responsibly respond to takedown notices and c01llply with the 

D\'fCA should not be deemed rogue. Procedural safeguards should ensure sufficient due process to avoid 

n1istakes costing legitinute businesses the use of their domain mU11e, \vhich, for e-C01Tln1erCe C01TlpameS, 

could ve1)r \Velll11ean their livelihood. 

l\.'eJ) , leg!J"ltJtioff shotfld tzot alter (OmmOlZ ltD)' se(·of/{ic.t~J liavilil.J·pnndplw or uffdet"IJlilie the D~·\1C1. 'l"argeted legislation 

addressing rogue foreign \\'ebsitcs IlluSt not inad\ ertendy disrllantle the lcg..li frarlle\Vork upon \vhich 

America's technology innovators rely. New legislation should not changc~ common iav,: principles of 

secondary liablhty or rewnte existing 1<1\\.'s like the Di\..fCA. ror example, if i't! rem court orders are allowed 

against rogue foreign "\vebsites, the existence of such orders should not be used in civil cases to undermine 

D_\1CA safe harbors or increase d1e risk of secondary liability. \x/idlout expressly addressing this overlap, ne,v 

approaches dlfeaten to reach a l11uch broader array of i.11tern1edlaries dlan those directly serv'ed \vidl a court 

order. The D~'{CA has a practical and real effect in tll\l..'arting infringement, and legislation that targets "the 

worst of the \\/orst" should not increase liability for online services that arc playing by the rules. 

TI1r: DlHCA Jtn"keJ- tbe n;~bt brlfrlth'ejor Jearth enp,itJeJ. By re1Tloving infringing 1Tlaterial fr01Tl don1e~tic and foreign 

sources, the D11CA's notice-and-takedo\vn process strikes the right balance an10ng d1e interests of 

rightsholders, lnternet users, and intelmediaries hke search engines, social net\vorks and the vast other "\vays 

in which people find and link to info1"nlation online. The D_\1CA has a proven 12-year track record as a fast, 

efficient tool for notifying online services that contain links that lead to infringing material, and it \vorks. 

Through a proce~s much ~impler than obtaining an in rem court order, rightsholder~ ~end notices and ~earch 

engtnes d1sable ltnks to that mfnngmg 1Tlatenal. 111e D~-rCA already allo\vs copynght o"\vners to target every 

link to any infringlng material online, and numerous entities assist d1em \vid1 dlat task. 

(-;oogie users (including rightsholders searching for infi:ingel11ent) COW1t on Google's \Veh Search to he as 

cOl11prehensi,Te as possihle, sen:ing as an index that accurately reflects the .filll range of 'v hat is lmvfully 

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Walker-7.eps

available on the \'?orld \~7ide \\/eb. Ko search engine or other high-\'olwlle \veb platfonn is in a position to 

detennine \vhich uses arc authoriLed, which arc unobjectionable, or what qualifies as a fair usc. E\ en 

copyright o\vners thetTIselvf's find the task difficult. The good ne,vs is that a vibrant industry in online 

enfOrCelTIent has sprung up, with con1panies nuking the process oflocating infringing nutenal faster (md 

cheaper for rightsholders. 

\Xihen it cotnes to offshore rogue sites, no one should think that imposing additional obligations on search 

engines, social networks, directories, or bloPJ.:,""'l2rs beyond the Div[CA will be a panacea. If the site rernains on 

the web~ neither search engines nor social net\vorks nor the numerous other intermediaries through \vhich 

users post links can prevent Internet users fr01TI talking about, lmking to, or referencing the existence of d1e 

site. These links or references ,vill d1elnselves appear in search results, and ,vill enable users to reach the site. 

Simply put, search engines arc not in a position to censor the entire Internet, deleting every Inention of the 

e.:>:..istence of a site. If a rogue site rernains accessible on the Internet, relying on search engines to try to tnake 

it "unfmdable" is an impossible endea\'or. Even if such a thing were possible for ~Aunerican search engines 

and other \'-Teb services, it would SUTIply spur d1e t-,rrmvth of offshore search engines like Baidu dut do not 

con1ply ,vid1 ..:1uTIerican law. \Ve have ahvays tried to proVide users with a con1prehensive picture of \vhat is 

available on the Internet, which is a core principle d1at has led people around d1e ,vodd to tmst d1e integrity 

of .A111erica's search engines. 

Leyiria!ir)tl JJJlf.1l flof illfe:fere }})lfjl !fie fiea!!!1 and y/abiil!), r!l//!e In/eme!. Recent focus on using the dmnain naIne 

system (DNS) to police against undesired activity must be carefully \veighed against its limited effectiveness 

and the signifiGmt in1plications for core ./unencm values such as innovation and freedolTI of expression. 

Even if service providers block d0111ainnat11eS d1fough D::..JS interference, d1e site ,vill rel11ain reachable 

through its IP address, browser plug-in software, alternative DNS providers, or other means. l3ut the DNS 

blocking itself could affect the internet's reliability, security, and pedoimance. 

Po!io,makerJ yIJoltldjoredoj'e pn'mle n;r,f1b' d adj.'Oll atld fallor illlemJediat), reqltiremelJlY appropriafe/Y. Any obligations put 

upon paytnent providf'rs or advertising services to iH.--Jdrf'ss rogue forf'ign \\.'ebsites tHUSt be reasonable, 

tech111cally feasible, and appropriately tailored. Given d1e evasive tactics bad actors elnploy to avoid 

detection, no intennediary \vill be able to prevent all abuse of its systen1s, and eftorts to legislate must be 

careful not to hold uHenllediaries responsible tor abuses of d1eir systen1s d1at could not reasonably be 

pIT\'ented. T _egislation should not include a pri\'ate right of action that would invite suits by "trolls" to extort 

settlements from intermediaries or sites \\.'110 arc making good faith efforts to comply \vith the law. 

Po!i('/maket:f Jholtid dif!JJr.mtfe br.wriet:f to !iteflJitl"Z to eth'Oltrqze Rf'er)ter pm!~jeratiofl oftompe!!iflR !(za! ?/feriflgfjor tol!'yTL;zhted 

JJ'OfkJ online. \X/e encourage the Subcon1111ittee to pron10te the creation of l110re u1110vative legitilnate otleru1gs 

in the l11arketplace that will harness the pmver of the lnternet to compensate rightsholders. ~ U1nerous 

thorny issues still impede the eHicient licensu1g of digitallnusic-a thicket oflicensing obstacles prevents 

consumers from buying hl\\/ful goods online and stops services from offering innovations that \\'-ould benefit 

rightsholders and users alike. Yet, it is without Ljuestiofl that attractive legal options for satisfying conSUfl1et" 

detTIand 111 a tl111ely, easy, and convenIent ,vay,vtll reduce I11centrves to rely on Illegal sources. Tnten1et 

services are rapidly Inoving to cloud computu1g Inodels, and POlicYl11akers should encourage content creators 

to embrace d1is ted111010gical trend at an early stage. 
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In the past se\'Cr-al years, Congress has passed significant enforcetllent-rclated legislative rlleasures while other 

bills aUlled at fi1stering the growth oflicensed services did not bec01lle law. Too often copyright initiatives 

impart ever-increasing penalties "\vithout clear evidence that such penalties put real nloney in artists' pockets. 

\X"e urge the Subco111rnittee to tunl its attention to lTIarket-creat11lgnleasures that "\vill encourage c01TIpelling 

legal offerings for users, lTIake a proven difference in artist revenues, ;md incentivize the kind of innovation 

that is needed for our country's future. Licensing refonll has the potential to do that. 

Condusion 

Google agrees \vidl dle need to tight online infringement. There is of course no silver bullet, no one-size-titsall umbrella solution. Radler, "\ve urge the Subcommittee to carefully revie"\v and tailor lneasures to address 

rogue foreigp \vehsites \vithout impairing legitimate technologies, innovative husinesses, and la\vful speech. 

At a time \vhen the United States leads the global information economy, \vith Tnternet freedom a cornerstone 

of C .S. foreign policy, ,ve tTIust carefully consider ho"\v policies aga111st foreign \vebsites could set intefllational 

precedents and undenlline innovation, e-COnltTIerCe, and freedoll1 of expression the ,vorld over. Issues of 

jurisd1ction and enforcement relnedies for lnternet-based activities aflect lnatters ,veIl beyond intellectual 

property rights. \Xie must ,vork together to target the '\vorst-of-the-worst" rogue foreign ,vebsites "\vithout 

un111tentionally unpeding legitunate ulterests of those ulno'\.'atulg and uSUlg onlule sen'ices to drive econonlic 

gro\vth and global freedOln. 
211 

Mr. GOODLATTE. Thank you, Mr. Walker. 

Ms. Jones, we are pleased to have your testimony. 

TESTIMONY OF CHRISTINE N. JONES, EXECUTIVE VICE 

PRESIDENT AND GENERAL COUNSEL, GO DADDY GROUP 

Ms. JONES. Good morning, Chairman Goodlatte. Thanks so much 

for the opportunity to be heard today. 

You know, we put a lot of time and energy into getting rid of bad 

actors from other Internet at Go Daddy. So we sincerely appreciate 

that you guys have made parasites a priority for the Subcommittee 

this Congress. 

And I also want to extend my personal thanks to Ranking Member Watt and Chairman Smith and Ranking Member Conyers of 

the full Committee as well and, frankly, all the Members of the 

Subcommittee because I spend a lot of my personal time on these 

issues not because I have to but because I think it is the right 

thing to do. Let me tell you it is nice to know that I have an ally 

in this fight because sometimes we feel like we are out there all 

by ourselves. 

Having worked closely with law enforcement, the intellectual 

property community, and others on a wide variety of issues related 

to parasites, it is clear to me that we still have a long way to go. 

I will be the first to admit there is no silver bullet—no silver bullet. 

It doesn’t exist. Just like in offline crimes, it appears there will always be bad guys on the Internet. That is a stark reality we all 

must face. And although some of us have done a lot, there is still 

a lot more that some can do. So let’s talk about what that looks 

like. 

We have had great success in the past with a hybrid approach 

to illegal content. That means voluntary industry cooperation on 

the one hand among all of the industry players accompanied by 

targeted, specific Federal legislation designed to protect the companies that are doing the right thing, but provide a consequence for 

those who do not. 

We have used this approach in addressing child pornography, for 

example, to great effect, and Go Daddy and Google recently worked 

together with the White House Intellectual Property Enforcement 

Coordinator to gather representatives from all of the major industry players to address rogue online pharmacies. We feel like we are 

making progress there as well. That effort resulted in the formation of a group known as the Center for Safe Internet Pharmacies. 

That group’s mission is to share information among all of the players, work together to terminate services for illegal online drug sellers. Whatever your service is, if you are a payment card provider, 

if you are a paid advertising provider, if you are a domain name 

registrar, whatever it is, turn off your services. We feel like that 

hybrid approach there is going to make it possible for us to address 

a significant number of illegal drug sellers who operate online 

today. 

So we support that type of hybrid approach to address a variety 

of types of criminal activity such as child abuse, rogue pharmacies, 

spam, phishing, identity theft, intellectual property infringement, 

terrorism, hate speech, on and on and on. We think it works in all 

of those situations. 

212 

Of course, it is always just as important to focus on enforcement 

as it is to enact new legislation. To do that, we would suggest a 

few simple things. I think Ranking Member Conyers mentioned 

this in his statement, that is, follow the money, shut down all of 

the choke points in the system because we have to disincentivize 

the bad actors. So in the IP context, for example, we would take 

away the ability to search for, pay for, ship, and make money from 

selling stolen or counterfeit goods, but we have to do that while encouraging new innovation and research and development. One 

thing we know is that the better we get, the better we get. That 

means we have to think of things we can hardly even imagine right 

now. 

So what happens, for instance, in the case of cyberlockers or infringing mobile applications or whatever infringement is going to 

come up that is invented in the future? If we establish a set of 

rules and procedures such as the DMCA which can be applied to 

a wide array of situations, we can possibly address those things 

that aren’t, as if they were. 

None of us can predict the next big thing. I mean, who knows 

what is the next eBay or AOL or Netscape or Go Daddy or Google 

or Twitter? Who knows? Not so long ago, there was a monopoly for 

selling domain names. Nobody had ever heard of an Internet 

browser or even a search engine. The term ‘‘social media’’ didn’t 

exist. It is common understanding now. And not too long from now, 

there is going to be another idea like that that nobody has ever 

heard of. We have to think in terms of concepts rather than URL’s 

or domain names or IP addresses or whatever to make legislation 

that is designed to outlast the current ideas. 

And because these issues reach outside our borders, we should 

all take steps to bind our foreign affiliates to the actions that we 

take here in the United States. 

A huge number of our customers make a living operating online 

businesses. That is how they make their money. And their ability 

to continue to do so is very important to us. We would challenge 

our counterparts in the Internet ecosystem to do what we do at Go 

Daddy, that is, to voluntarily take action against the people that 

we know to be using our system for illicit purposes, and that includes registrars, registries, hosting providers, payment processors, 

shippers, ISP’s, search engines, online advertising providers and, 

oh, by the way, whoever joins the community next, whoever that 

is. We challenge them all to make the same commitment. 

And I would submit that unless and until we provide a consequence for the businesses that facilitate criminals in their system, there will always be a safe harbor, a place where crooks can 

go to engage in crimes online, and we must fix that hole in the 

fence. 

Thank you very much for the time. 

[The prepared statement of Ms. Jones follows:] 

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Jones-1.eps

Before The United States House of Representatives 

Committee On The Judiciary 

Subcommittee on Intellectual Property, 

Competition and the Internet 

Hearing on 

"Promoting Investment and 

Protecting Commerce Online: 

Legitimate Sites v. Parasites, Part II" 

Statement of Christine N. Jones, 

Executive Vice-President, General Counsel, 

& Corporate Secretary 

The Go Daddy Group, Inc. 

April 6, 2011 
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Jones-2.eps

Introduction 

Good morning, Chairman Goodlatte, and thank you for the honor of speaking before you 

today on the critical issue of combating illegal and nefarious activity on the Internet. 

would also like to extend my thanks and appreciation to Ranking Member Watt, 

Chairman Smith, and Ranking Member Conyers, as well as the other Members of the 

Committee, for all your efforts in addressing this important issue. 

The Go Daddy Group devotes considerable time and resources to working with law 

enforcement to preserve the integrity and safety of the Internet by quicldy closing down 

web sites and domain names engaged in illegal activities. A vast number of our 

customers earn their livelihood from the successful businesses they have been able to 

establish and grow online, and their ability to continue to do so is of paramount 

importance to us. Go Daddy is committed to doing everything it can to ensure that the 

Internet is a safe and trustworthy way to communicate and conduct business. We 

challenge our counterparts on the Internet to make the same commitment. 

Background 

The Go Daddy Group, Inc. consists of eight ICANN-accredited domain name registrars, 

including GoDaddy.com. Go Daddy currently has over 47 million domain names under 

management, and is the number one domain name registrar in the world. In fact, we 

register domain names at a rate of more than one per second. Weare also the world's 

largest website hosting provider - we currently provide hosting services for more than 5 

million websites. Our 50+ additional products and services, including SSL certificates, 

website builders, and online business tools, are all focused toward helping our customers 

establish a trusted presence on the Internet. 

A domain name registrar serves as the point of entry to the Internet. For example, if you 

wanted to register the domain name \A,"'i\:\iJ:;11jiiJl!1<i1l(}_ogdlaJlc:sonl, you could go to 

\vww.GoDaddy.com to register that domain name. A domain name registrar is different 

from a traditional ISP, such as AOL, MSN, or EarthLink. The ISP provides access to the 

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Internet whereas the registrar provides the registration service for .com names and the 

like. In short, in exchange for a fee, the ISP provides the means by which an Internet 

user connects to the Internet via a dial-up connection, cable modem, DSL, or other 

connection method. A registrar, on the other hand, enables Internet users to establish a 

web presence by registering a unique name such as }"}"~~Chairnl1ill_GoiltilaHcccQnl. 

A domain name registrar also differs from a domain name registry, in that the registry 

acts as the database of all domain names that are registered for a particular top-level 

domain, or "TLD." TLDs are the suffix that appears to the right of the "dot" in a 

particular domain name - in'0'\N\\lJ:;l1§jI:rmmG·9J2<l1a.Lt~C:0111, the TLD is ".com." There 

are dozens of registries that have received authorization from ICANN to otTer particular 

TLDs, such as .com, .net, .biz, .info, etc. Registrars such as Go Daddy enter into 

agreements with the various registries to ofter the TLDs that are managed by those 

registries. 

Once www.ChairmanGoodlattc.comis registered, you might decide that you want to 

direct your domain name to a website that contains content, such as items for sale, a blog, 

news articles, or the like. In order to create and maintain a website on which to store 

your content, you would need to find a place to store, or "host," that website. Again, you 

could go to '"'1Y'LG9Qacidy,.f91I1 for content storage, or hosting, services. A hosting 

provider differs from a traditional TSP in that the hosting provider supplies space on a 

computer server that is accessible from the Internet, rather than access to the server, 

which is provided by the ISP. 

How Go Daddy Works To Combat Illegal Activity On The Internet 

Go Daddy has made it a high priority to use its position as the world's largest registrar 

and hosting provider to make the Internet a better and safer place. As such, we have a 

large 2417 Abuse Department whose mission is to preserve the integrity and safety of Go 

Daddy's network by investigating and shutting down websites and domain names 

engaged in illegal activities. We work with law enforcement agencies at all levels and 

routinely assist in a wide variety of criminal and civil investigations. We are also quick 

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to respond to public complaints of spam, phishing, phanning, and online fraud, and work 

closely with anti-fraud and security groups such as the Anti-Phishing Working Group, 

Digital Phish Net, the National Center for Missing and Exploited Children, and 

CyberTipLine. We take each instance of illegal activity very seriously and devote high 

priority to ensuring that web sites containing any kind of illegal content - so-called 

"ParaSites" -- are removed from our network. 

As recent examples of our enforcement and takedown activities, we worked with the 

United Kingdom's Metropolitan Police Service to shut down or redirect nearly 200 

domain names and websites used to sell counterfeit merchandise, including clothing, 

shoes and jewelry. We also recently worked with the Federal Bureau ofInvestigation to 

disable the domain names of more than two dozen overseas websites that were selling 

counterfeit Titl'any & Co. jewelry. We are currently involved in an investigation by the 

Computer Crime Division of Scotland Yard to shut down websites that sell counterfeit 

tickets to sporting events. To date, we have successfully disabled access to approximately 

60 such websites by redirecting their domain names. There are, of course, many more 

past and ongoing examples which would not be appropriate to disclose in this context. 

We also continue to lead the charge to stop the proliferation of rogue online pharmacies 

and websites selling counterfeit medications. In 2010 alone we worked with the Federal 

Drug Administration and the U.S. Drug Enforcement Agency to investigate and take 

down over 36,000 such websites. 

The Domain Name Registratioll Process 

The domain name registration system is entirely automated. There is no human 

intervention into the process. Because many words have multiple meanings and 

combinations of words can be used for both legitimate and illegitimate purposes, no 

domain names are automatically prohibited from registration. As mentioned above, Go 

Daddy registers a domain name at a rate of more than one per second. This makes it 

virtually impossible for a human being to verify the legitimate use of every domain name 

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registration, particularly on an ongoing basis. To compensate for this, we have developed 

a notification system for reporting instances of all types of network abuse to our internal 

Abuse Department. 

The Noli/icalion Process 

With over 47 million domain names under management, most of our data come from 

third-party complaints or notices. The Go Daddy Abuse Department can receive 

information that ParaSites may be residing on our netviOrk in several ways: 1) direct 

complaint from a third-party via email; 2) direct complaint via telephone; 3) tip from Go 

Daddy employees who have either become aware of, or suspect the existence of, illegal 

content on a customer site; and, 4) notifications from CyberTipLine and other 

"watchdog" groups. 

The Investigation Process 

Once Go Daddy is made aware that a potential ParaSite is registered through one of our 

companies, we immediately investigate to determine whether there is in fact illegal 

content associated with the domain name, such as Scheduled drugs for sale without a 

prescription or child pornography (hereafter, "CP"), on the site. If so, we determine 

whether that customer has other domain names resolving to the ParaSite, and whether 

there are other ParaSites in the customer's account. In some cases, Internet users can only 

access ParaSites (such as sites containing CP) by supplying a paid-for membership user 

name and password. While we cannot investigate content that requires payment to 

access, we do investigate all web pages found to be treely accessible to Internet users 

without a user name and password for any site that we suspect is a ParaSite. 

After we determine that there is content meeting the criteria for classification as a 

ParaSite, we archive a screenshot (in the case of a registered domain) and all or partial 

content (in the case of a hosted site) sufficient to demonstrate evidence of illegal activity 

for future use in law enforcement investigations. 

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Jones-6.eps

lhe Su~pellsioll Process 

After domain names, web sites, and registrant information have been investigated and 

determined to be associated with illegal activity, we permanently suspend our services. It 

is important to note that domain names are not suspended prior to investigation, 

especially where domain names are not associated with an active website. It is very 

difficult for us to suspend a domain name before it is associated with an active website 

because many words have multiple uses. In addition, if there is no ParaSite associated 

with a particular domain name, there is no reason to suspend the domain name itself 

because there is nothing unlawful about a domain name, in and of itself. 

01lr Results 

Go Daddy has documented proof that our efforts to preserve the safety and integrity of 

the Internet work. We investigate hundreds of thousands of domain names and web sites 

each year for illegal activity. In 2010, we conducted approximately 672,000 

investigations, involving approximately 40,000 unique customers. 

The number of domain names and web sites investigated each year is much higher than 

the number of unique customers investigated. This is because one unique customer may 

have many domain names. Many times, one customer will have literally hundreds of 

domain names in its account. In those cases, we suspend all the ParaSites associated with 

the customer's account, not just the ones about which we receive a complaint or 

notification. In 2010 alone, Go Daddy suspended approximately 150,000 web sites found 

to be engaged in illegal or malicious activity. 

Importantly, these numbers are skewed slightly lower because many times when Go 

Daddy is the registrar, but not the hosting provider, ParaSites have already been removed 

by the hosting provider by the time we conduct our investigation. This is a result of 

third-party complaints being sent to both the domain name registrar and the hosting 

provider at the same time, and illustrates the efficient results that can be obtained by 

providing concurrent notifications to all the Internet ecosystem players. Weare, of 

course, very grateful when our fellow Internet companies take complaints of ParaSites as 

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seriously as we do and when they fully cooperate with us to terminates their services to 

ParaSites to help rid the Internet of illegal content. 

Our Recommendations For Combating ParaSites 

Go Daddy has a long history of supporting federal legislation directed toward combating 

illegal conduct on the Internet. For example, our company strongly supported the Ryan 

Haight Online Pharmacy Consumer Protection Act of 2008, which amended the 

Controlled Substances Act to significantly increase the criminal penalties associated with 

illegal online pharmacies. We also vigorously advocated for the passage of the Protect 

Our Children Act of2008, which, among many other protections, prohibited the sending 

oflive images of child abuse via the Internet, and authorized an additional $320 million 

in funding for the fight against CPo Go Daddy always has and always will support both 

government and private industry efforts to identify and disable all types of ParaSites on 

the Internet. And, as set forth below, we have several specific recommendations that we 

believe will make the fight against illegal activity online more efficient and effective. 

Direct Complainfs Regarding Domain Names To Registrars Rather Than Registries 

We believe that complaints against domain names should be directed to the appropriate 

domain name registrar, rather than to the registry. Because it is the registrar that typically 

has the most contact with the registrant of a domain name, registrars are very often 

involved in a variety of criminal investigations relating to websites associated with the 

domain name (for example, CP investigations involving registrants). The registry in 

many instances has no knowledge of these highly contidential and sensitive matters, and 

we have experienced several occasions in which the sudden disabling of a domain name 

by a registry disrupted weeks or months of work investigating serious criminal activity by 

the registrant. We would like to see future government and private industry efforts 

focused on naming the registrar as the primary contact for courts and law enforcement 

regarding all criminal and civil matters relating to domain names. We can then facilitate 

and coordinate concurrent actions by international, federal and local governments with 

respect to particular names. 

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Jones-8.eps

Direct Complainfs Regarding illegal COl7tent to All RelewlI7t Members of Ihe internet 

Ecosystem 

We further ask the Committee to consider establishing notice and takedown procedures, 

such as those provided for by the Digital Millennium Copyright Act (the "DMCA"), that 

could be applied to additional types of illegal content and to additional online service 

providers, including all members of the Internet ecosystem. While it is practically a 

mathematical certainty that the players and types of illegal content will change in the 

future, today the relevant members of the ecosystem would include registrars, hosting 

providers, payment processors, shippers, Internet service providers, search engines, and 

online advertising providers (hereinafter, the "Ecosystem Members")' 

The DMCA provides a process for copyright owners to directly contact online service 

providers regarding web sites that contain infringing material, and demand the removal of 

that content. The law establishes a safe harbor for providers that promptly remove the 

infringing material following notification, so long as the provider follows the processes 

outlined in the statute. Go Daddy has found the DMCA to be an extremely useful tool in 

combating online infringements and counterfeits, and has adhered to its provisions with 

much success. We have removed tens of thousands of web sites that contain counterfeit 

or infringing material after receiving notification of the existence of the sites from thirdparties pursuant to the DMCA We anticipate that we would make even greater strides in 

this area if the DMCA were expanded (or new legislation were put into effect) to include 

notice and takedown provisions for illegal conduct other than copyright infringementtrademark infringement, for example, as well as spam, phishing, fraud, etc. The 

expanded legislation could and should apply to all of Ecosystem Members. 

It is obviously critical that the Ecosystem Members all work together to combat 

ParaSites. To the extent that any Ecosystem Member receives notice that a member of its 

network is engaged in illegal conduct, that organization should be required (or, better yet, 

take it upon itself as the responsible thing to do) to disable access to the resources that are 

allowing the criminal to engage in the nefarious activity. With the help of clearly defined 

and widely disseminated notification and takedown procedures, the Ecosystem Members 

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should be able to cut off a large portion of the technical and financial resources that have, 

to date, allowed the proliferation of online bad actors. And, consistent with current law, 

future legislation should include an immunity provision for the "good actor" members of 

private industry that act in accordance with or exceed the law's provisions. 

Utilize DNS Blocking instead of DNS Filtering J() Combat ParaSites 

Finally, Go Daddy has some concerns about recent proposals to impose domain name 

system CDNS") filtering as a means of combating ParaSites. We strongly prefer "DNS 

blocking" to "DNS tiltering" as an effective strategy for disabling access to illegal and 

malicious content on the Internet. 

The DNS is the standard technology for managing domain names on the Internet. DNS 

technology allows you to type a domain name into your web browser and locate the 

address, or URL, for that domain name. A "DNS server" is any computer registered to 

join the DNS. DNS servers run special-purpose networking software, feature a public IP 

address, and contain a database of network names and addresses for other Internet hosts. 

DNS servers communicate with each other using private network protocols. 

All DNS servers are organized in a hierarchy. At the top level of the hierarchy, so-called 

"Root servers" store the complete database ofInternet domain names and their 

corresponding IP addresses. The Internet currently employs 13 Root servers, located in 

various countries around the world. All other DNS servers are installed at lower levels in 

the hierarchy, and maintain only certain pieces of the overall database. Most non-Root 

DNS servers are owned by businesses or ISPs, such as Go Daddy and Google, and are 

maintained in various locations around the world. 

The term "DNS filtering" describes a mechanism through which ISPs prevent outbound 

DNS inquiries regarding particular domain names from reaching the Root servers for 

those names. The net effect is to prevent the ISP's customer base (i.e., only those 

customers that are using the ISP's DNS servers) from being able to access the domain 

name or website in question. "Filtering," rather than "blocking," is the best name for this 

9 
222 


Jones-10.eps

mechanism, because the process does not and will not provide 100% protection. At best, 

it prevents a significant portion of a single ISP's customer base from being able to access 

a "DNS-filtered" ParaSite. 

In our view, DNS filtering is an ineffective mechanism for fighting illegal activity online. 

The widespread implementation ofDNS filtering would result in a large number of 

Internet users attempting to circumvent such filtering. While the easiest and most 

common way to do this is to use a proxy site, undoubtedly some users will change their 

primary DNS resolver to an overseas provider. If more users begin using DNS servers 

that are not secured, they will be in a position of exposed risk to DNS poisoning and 

similar security concerns. Ironically, this increases the likelihood of their exposure to 

ParaSites. 

In addition, the imposition ofDNS filters would diminish the ability ofDNS providers in 

the United States to implement DNS security extensions, and of domestic ISPs and DNS 

providers to monitor DNS servers. Overseas DNS providers have not yet widely 

implemented DNSSEC authentication keys. Without such keys, providers have no way 

of verifying the validity of DNS record responses. As a result, if a significant portion of 

a provider's customer base uses other DNS servers as a rule, the provider will be unable 

to effectively protect those customers. 

We believe that DNS blocking, as opposed to DNS filtering, is a much more efIective 

vehicle for removing illegal content from the Internet. DNS blocking is different from 

DNS filtering in that DNS blocking is action taken at the "authoritative" or "response" 

level of the DNS cycle. As such, it needs to be done by the registrar (which provides the 

authoritative DNS response), or, in cases where the registrar is unable or unwilling to 

comply, by the registry (which provides the Root zone file records - the database -- for 

the entire TLD). Though a very similar technical process to DNS filtering, DNS blocking 

provides a much more thorough solution because it applies to all Internet users, 

regardless of which ISP they are a customer of or whether proxy services are used. 

10 
223 


Jones-11.eps

Where DNS blocking is imposed, Internet users will not be able to access a ParaSite by 

any common means. 

Conclusion 

Thank you again, Chairman Goodlatte, for the opportunity to testify on these important 

issues. Your commitment and the commitment of the Members of this Committee to 

bringing attention to the problem of ParaSites on the Internet is sincerely appreciated. Go 

Daddy is committed to working with you, with law enforcement, and with our fellow 

Internet Ecosystem Members to remove illegal content from the Internet. 

I would be happy to answer any questions you may have. 

11 
224 

Mr. GOODLATTE. Thank you, Ms. Jones. 

I will recognize myself to begin the questioning. Let me warn my 

Committee Members I may take a little extra time here because I 

want to go into some detail with this issue with some specific examples. 

Let me say at the outset that I want to restate my belief that 

tech and content, two areas in which this Committee has great interest, are not enemies and that they both bring innovation to the 

table to solve various problems, and they need each other, and we 

need both of them contributing to solve this problem. 

Mr. Walker, let me just say I am an avid user of Google’s search 

engine, and I welcome your comments here today that you want to 

work with the Committee on some legislative solutions that might 

involve your company and other players in the tech community in 

this. And we hear your concerns as well. 

And I want to commend you for a news release, which I will put 

in the record, that says, ‘‘Google boots Grooveshark from Android 

Market,’’ and it noted that this was done yesterday. Grooveshark 

is a music app that has been found by many of the top music labels 

to be violating copyright law, and a Google spokesman said, ‘‘We 

remove apps from the android market that violate our terms of 

service.’’ And it was also noted that we were having a hearing on 

the subject here today. But we commend you for that. 

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Mr. GOODLATTE. I want to go into some details about some of the 

things we found in recent searches, however. In preparation for today’s hearing, we conducted searches in Google for free mp3 Taylor 

Swift, quote/unquote. Over the past several days, the first page of 

each search return appeared to show all unlicensed sites. We 

checked with the distributor of Taylor Swift’s recordings, and they 

provided us three screen shots from yesterday that show only two 

authorized sites out of nearly 30. To access the first of those, a consumer would have to scroll past the first 14 suggested by Google. 


65186AA-2.eps
227 

You wrote recently that Google was, quote, a big fan of making 

authorized content more accessible, end quote, 4 months ago, and 

yet this is the result. 

I intend to check in a week, in a month, in 3 months, in 6 

months. When I do that, will I find this same problem in existence? 

What is Google doing about this? 

Mr. WALKER. Thank you, Mr. Chairman. 

Let me go to the Grooveshark example first. I want to flag that 

this is not the first time we have removed items from the App 

Store. We have removed almost 2,000 different applications from 

the App Store over time, something like 200 or 300 in February 

alone. So we continue to look not just for copyright infringement 

but malware and many other things. There are I believe about 

200,000 different applications. So it is a major challenge for us to 

go through all them. 

Mr. GOODLATTE. And we commend you for that. 

Mr. WALKER. With regard to the additional items in the search 

results, we do try and remove—when we get notice of these individual infringing items, obviously, we try and take them down. And 

at the same time, we have said we are eager to work with the content industry on ways of making their sites more accessible. In 

some cases, when they offer preview content or other kinds of 

things where you can listen to 30 seconds or a minute or a trial 

copy of the song, for example, that is very attractive to users. And 

we talk with them about ways of partnering that would actually 

make that more visible within the snippets, within the search results that are returned, and so as you get users clicking on that, 

that is sort of a natural signal. The cream rises to the top even as 

we try and pull the bad guys out. 

Now, that said, the Internet is a big place, and as I think all of 

the witnesses have said, we are never going to get rid of all the 

bad guys. We play the Whac-A-Mole problem as much as the content industry does, and it frustrates us. When you hear me talk 

about taking down 50,000 sites for this or 12,000 accounts for that, 

that costs us a lot of time and effort. It drives us crazy trying to 

get rid of these guys because, of course, we take them down one 

place, they come back up in another place using a different credit 

card, using a different IP address. So it is a constant battle. 

We think the best way to fight that battle is collaboratively, to 

your point about the content industry and the technology industry 

working together. We are in the best position to rapidly remove 

content and build tools and filters to help do that. The content industry is in the best position, maybe a unique position to let us 

know what is authorized and what is not because, of course, there 

are multiple authorized sites for different kinds of songs. The 

music industry is a very complicated place with label rights and 

publisher rights that expire over time in different geographies and 

the like. They know what is authorized and what is not, and we 

rely on them to let us know and then we take action. 

Mr. GOODLATTE. Let me follow up on that. As I indicated, I use 

Google frequently. I am frequently amazed at the sophistication of 

the algorithms that you use in your search process. When I type 

in things, I like to see how many letters I have to type in before 

228 

Google knows what I am looking for. And I am frequently very impressed. 

3 days ago, we conducted a search for ‘‘watch movies online.’’ We 

typed in those words. Without prompting, the first suggestion that 

appeared in the dropdown box that comes—which is exactly what 

I am talking about, anticipating what I want. In the dropdown box, 

the first suggestion was ‘‘watch free bootleg movies online.’’ And I 

am sure as a former Federal prosecutor, you know the meaning of 

the term ‘‘bootleg.’’ If you click, you go to a results page full of infringing links. Clicking on one of the sites at the top of the page 

takes you to a website that is a notorious infringing site. It even 

advertises pre-release movies. We have a movie coming out on Friday that they are advertising now will be available online illegally. 

‘‘Hanna’’ is the movie and it is going to appear in the theaters on 

Friday, and you will be able to see it online on Friday too apparently. It even advertises pre-release movies. 

Why exactly does Google suggest to users that they click on 

‘‘watch free bootleg movies online’’? 

Mr. WALKER. So the functionality you are speaking to is referred 

to as autocomplete. It is essentially the sum of what other users 

are doing. So it is not really Google knowing what you want. It is 

you asking for things that other users are interested in, and the 

fact that some of these terms come up actually reinforces the importance of education among the American public because it is a 

reflection of how many users are, in fact, trying to seek illegal, 

bootleg, pirated, otherwise infringing content out there. 

Mr. GOODLATTE. Well, let me ask you this. Would Google think 

it appropriate to, when these things are called to your attention, 

review the things that you anticipate and put up there and block 

some of them from occurring? 

Mr. WALKER. Absolutely. In fact, we have committed to do just 

that. And the challenge in doing it, obviously, is making sure that 

the terms we are blocking are uniquely or highly correlated with 

infringing material and not with other sort of material. So, for example, if you put in ‘‘cheap’’ or ‘‘free,’’ many of those are perfectly 

appropriate and legitimate searches. You wouldn’t want to not suggest that. Even terms like ‘‘faux’’ or ‘‘replica,’’ in many cases it is 

faux leather, or even to go farther, terms like ‘‘knock-off,’’ there are 

knock-off dresses that are sold by Macy’s and Nordstrom’s. So we 

have to figure out what are the list of terms that really are pushing 

people to something that is almost unambiguously, to Mr. Abrams’ 

point, infringing material. 

And we have started that process, and in fact, we are in dialogue 

with the content community to ask them what are your key terms. 

What terms would you like us to include in that list, and how can 

we do that analysis and move forward? 

Mr. GOODLATTE. Thank you. 

And let me follow up on that. As I think you know, many Members of the Subcommittee are interested in your December 2 policy 

blog post regarding steps Google would take to address the growing 

number of issues involving the use of its services in connection 

with copyright infringement. Interesting among them was a pledge 

to, quote, prevent terms that are closely associated with piracy 

from appearing in autocomplete, the Google feature whereby 

229 

Google’s search engine will suggest search terms to its users as the 

users type, based on its prediction of what they might be looking 

for. 

As you know, I am the co-chair of the bicameral congressional 

International Anti-Piracy Caucus, along with Congressman Adam 

Schiff. Last year we released our annual international piracy watch 

list which included six foreign websites that are notorious for providing access to infringing copies of works by U.S. creators. These 

included sites like the Pirate Bay, whose principals have been 

criminally convicted or their activities in Europe, and isoHunt, 

which is a file sharing site that is the subject of an injunction 

issued by a U.S. court for copyright inducement and whose owner 

is described another Federal court as, quote, an admitted copyright 

thief. 

I am told that a review of the 15 sites identified 6 weeks ago by 

the USTR as notorious markets for piracy show nearly identical results. In other words, Google continues to suggest each one of those 

sites as search terms through the autocomplete function. 

I would like to know what you are doing to address this problem 

and if you are doing your best to prevent terms that are closely associated with piracy from appearing in autocomplete. Again obviously somebody looking for something, they can type out that whole 

word and will not get to it, but I think it would help Google’s reputation as not aiding and abetting the infringement by not having 

these pop up on your autocomplete. 

Mr. WALKER. We understand the optics of it, and we are working 

on it. I think it is an extension of our prior conversation. The challenge is that a lot of those sites are broad-based sites. The Chinese 

search engine Baidu, for example, I believe appears on that list, 

and Baidu does allow a large amount of pirated and infringing material to be accessible through its search engine. And yet, we are 

in a difficult situation essentially discriminating against a search 

competitor and leaving them out of autocomplete. 

But I think the spirit of my answer here would be the same as 

before, which is we really want to identify things that are unambiguously infringing and we are open to removing those from the 

autocomplete list. 

Mr. GOODLATTE. Thank you, Mr. Walker. I appreciate your answering those difficult questions. 

And to not single you entirely out, I have one for Ms. Jones. You 

mentioned that Go Daddy strongly prefers DNS blocking by registrars, registries to DNS filtering by ISP’s as a strategy to shut 

down rogue websites because DNS filtering will not provide 100 

percent protection. Is DNS blocking, as you describe it, effective 

against websites hosted and registered through overseas companies, and doesn’t DNS filtering provide a better way to disable access to those types of foreign-based websites? Should both types of 

technologies be employed to combat the problem? 

Ms. JONES. To answer your last question first, yes, I think that 

is absolutely necessary, and it is a pretty complicated technical explanation. I will try not to get too much into the weeds. But if you 

block DNS at the definitive root level, nobody can access the 

website from anywhere. The problem comes where you don’t have 

cooperation from entities who are willing to do the blocking, and 

230 

then if you want to block at least some access, you may have to 

engage in some filtering. And we know that both blocking and filtering take place today in a variety of contexts. 

The Internet community is a little bit remiss to employ these 

kind of tactics because the more you filter, the more you splinter, 

the less stable and secure the root becomes, and you end up with 

a giant grid, a three-dimensional grid actually, of things that are 

blocked by people, from people in various geographies, and it gets 

very shaky. So really, that suggestion is more of a technical approach as opposed to a policy approach or a policy belief. 

I was going to answer one of Mr. Walker’s questions, but I know 

I am not allowed to ask questions here. So I will just leave it at 

that. 

Mr. GOODLATTE. That is good advice to yourself. [Laughter.] 

Now I will recognize the gentleman from North Carolina, Mr. 

Watt. 

Mr. WATT. I can’t resist. I got to let her answer whatever question she wanted to answer. [Laughter.] 

Mr. WATT. If she is willing to answer it, I am willing to listen 

to the answer. 

Ms. JONES. It just occurred to me that once in a while we have 

foreign websites that we can’t block because they are foreign, and 

we don’t have a good, cooperative U.S. company that is willing to 

do it. So the example that the ICE gentleman put up here of the 

fake Louis Vuitton or the fake Nike, those are almost certainly— 

I don’t know—I haven’t looked them up, but they are almost certainly foreign registrars and foreign hosting providers, and they 

won’t take them down. No offense, Mr. Walker, but that doesn’t 

mean that we can’t disable the search to those because I can almost guarantee you that Louis Vuitton and Nike have contacted 

somebody to say could you please stop sending people to those 

websites. It is an approach. 

Now he is going to have to answer. 

Mr. WATT. What do you say to that, Mr. Walker? 

Mr. WALKER. Thank you, sir. 

It is exactly right. I am sure we are contacted by many of those 

sites, and we remove them. And that is the way the system should 

work. Louis Vuitton and Nike are in the best position to know 

what is appropriate and what is not. In many cases, when you put 

those search terms in, you may get ads for competitors, for example, and that is a good thing. Competitive advertising, comparative 

advertising helps consumers, helps them find out about more products that are out there, pay less money for them. 

Mr. WATT. What do you say to that, Ms. Jones? 

Ms. JONES. I happen to hear from the Louis Vuitton and Nike 

lawyers all day every day, and they are very willing to tell you 

which sites they want you to take down. So I don’t have the data 

from any of the other providers except for the ones that I represent. So I don’t know if they have the lists, but I would be 

shocked if they hadn’t provided those. 

Mr. WATT. Mr. Morton, would it be more effective to block them 

or filter them? 

Mr. MORTON. Well, as Ms. Jones noted, it gets very complicated, 

the sort of technical arrangements. What I will say is, first of all, 

231 

on those sites, they weren’t seized or terminated by industry. We 

seized them, both of those sites. We seized them and we forfeited 

both of those sites because they were notorious counterfeiting sites 

and they were referred to us by industry. And those are the instances in which you can have good cooperation between the Government. 

I think what you have heard going before suggests, however, that 

industry can do a lot more and on a much greater scale than Government ever can. We are part of the solution. We are not the solution by a long shot. 

Mr. WATT. Mr. Abrams, any free speech implications in any of 

those situations? 

Mr. ABRAMS. You know, everything we are talking about today 

is suffused with a danger of free speech violation. We don’t want 

Google taking down sites just because people are angry at them or 

upset. We don’t want the public to have less access unless we are 

talking about genuinely infringing or otherwise criminally or civilly 

violative sites. 

It seems to me that the hard issue here is that we are often talking about taking down an infringing movie, say, taking down an infringing design when the real problem is very often that these sites 

are only infringing sites. Everything on them is infringing. And 

there the question is, as a congressional matter, what can you do 

about that? That is what the Senate focused on in its attempt to 

draft legislation, and I suggest to you that when you focus on drafting anything, that you ought to propose legislation which focuses 

not just on individual files, not an individual movie or an individual design only, but on the sites themselves which contain them. 

Mr. WATT. But wouldn’t a convenient way, quick way around 

that be just to—— 

Mr. ABRAMS. I am sorry. I didn’t hear. 

Mr. WATT. Wouldn’t a quick way around that be just to put up 

some legitimate stuff on the same site? I mean, seldom are you 

going to have a criminal that is not—if you tell him that all you 

are doing is taking down sites that are exclusively dedicated to 

criminal activity, he is going to mix in a little legitimate stuff, don’t 

you think? 

Mr. ABRAMS. That is a fair point. Therefore, what I am talking 

about will never be a complete solution. 

But law enforcement authorities deal with that when they deal 

with stores that sell 90 percent of child pornography. They can 

close down the store in that circumstance. If you get to a much 

lower amount, A, you have done something. You have accomplished 

something I think of a serious public policy nature, and then, yes, 

you have to go after the individual sale of an individual book. All 

I am saying is that it is a step forward to try to deal with the sites 

which is the reality, as I understand it, today where there are 

many sites which are either nothing but or almost nothing but infringing entities. 

Mr. WATT. I am sure I have plenty more questions, Mr. Chairman, but out of respect for other Members, I will come back around 

the next time I guess. 

Mr. GOODLATTE. I thank the gentleman. 

232 

The gentleman from Arizona, Mr. Quayle, is recognized for 5 

minutes. 

Mr. QUAYLE. Thank you, Mr. Chairman, and thank you for holding this hearing. 

Annually billions of dollars are being stolen through pirated or 

counterfeited goods. In the last hearing that we had, a number of 

us, including myself, had mentioned some of our concern of how illegal streaming was being treated. I am actually very pleased that 

the IP Enforcement Coordinator, Victoria Espinel, issued a white 

paper recently which states that illegal streaming should be a felony and not a misdemeanor as it currently is. And I know the 

Chairman of this Subcommittee and the full Committee have been 

working on this, and I look forward to seeing a piece of legislation 

soon. 

I would also like to specifically thank Mr. Morton and ICE for 

all their good work in enforcement against illegitimate sites, and 

I thank you for being here today. 

My first question is for you, Mr. Walker. Now, does Google currently have algorithms in place that allow ads that are paid for to 

show up during search results based on the search terms that are 

placed into the query? 

Mr. WALKER. Yes. That is fundamentally how what is called the 

AdWords side of our business works. 

Mr. QUAYLE. So those algorithms are basically personalized for 

each search result based on the search terms that are utilized. Correct? 

Mr. WALKER. They are personalized based on a lot of different 

factors. So, for example, a different part of a country, different time 

of day, different time of season, et cetera, but there is a correlation 

that takes a lot of things into account. 

Mr. QUAYLE. Are these updated regularly, daily, weekly, monthly? 

Mr. WALKER. Almost instantaneously because it looks at the 

quality of different websites, the amounts that different advertisers 

are paying, user preference. The more users click on an ad, the 

more popular it becomes and therefore more relevant. There are a 

lot of factors that go into that. But it is almost in real time. 

Mr. QUAYLE. I went to law school. I wasn’t an engineer. So that 

sounds pretty—— 

Mr. WALKER. That makes two of us. 

Mr. QUAYLE. That sounds pretty sophisticated. 

So based on that, I mean, Google has extremely sophisticated algorithms that it uses in its search results and queries, and because 

of that, Google has really become a noun, not just a verb. But 

based on that, a recent report stated that domains classified as digital piracy attracted 32 million daily visits. Do you think that a 

company that has sophisticated algorithms like Google could create 

an algorithm in which search requests, using words that are among 

the most frequently associated with a crime, are able to filter out 

those results? Have they tried to do this or have you chosen not 

to? 

Mr. WALKER. The challenge is that it is sort of a different kettle 

of fish. It is a different task to solve. In the context of trying to 

come up with what is most relevant or related to a keyword, taking 

233 

all those different factors into account, you can use user feedback. 

As I referred to, if you rank something fourth and all your users 

click on that, well, you probably made a mistake and it probably 

should be ranking higher and vice versa. 

In the context of trying to target what is authorized and what 

is unauthorized on the Web, that is a much harder challenge. And 

the feedback loop we use there is essentially DMCA notices. We referred to before our process for when we get a notice of something 

from the rightsholder, then we know it is illegal and we remove the 

link from our system. We don’t just demote it. We take it out entirely. 

Mr. QUAYLE. I remember an article in the New York Times—I 

think it was earlier this year—regarding J.C. Penney and how it 

had been pushed to the top of the search results for everything 

from SkinnyJeans to grommetted top curtains. Anything that you 

put into the search query in Google came up J.C. Penney. 

Now, when you guys were actually notified of this, you changed 

your algorithm so that that wouldn’t happen. How can you not then 

use that type of sophistication that you do—I mean, I know you 

just explained that portion of it, but I think that it would seem to 

be feasible that those common search terms that are used to find 

pirated works on the Internet could be put into the algorithm so 

that those searches and the results are actually filtered out of that. 

Mr. WALKER. There are two problems there. I mean, one is that 

a lot of times searches, queries that are used to find pirated stuff 

are also used to find all sorts of other things as well—the word 

‘‘cheap’’ or ‘‘discount’’ that I talked about before. So you are trying 

to separate the wheat from the chaff. That is problem one. You 

don’t want to be over-inclusive and knock out a lot of legitimate 

sites. 

Problem two is figuring out what the wheat is, and there we 

need to partner with the content industry because there are lots of 

sites out there that make fair use of items, that have remixes and 

different sorts of things that are protected under the DMCA again 

that we don’t want to knock out. So we rely on the content industry 

to say that is bad. That site is bad, pull that out of your index. 

We don’t want—and I don’t think the Members of the Committee 

want—us or any company to be the judge, jury, and executioner 

against an entire site. 

Mr. QUAYLE. I agree with that, but you have got to understand 

the frustration. I think Google does understand the frustration of 

those that have copyrighted work that is being infringed because 

recently, just last week, you reached a settlement—Google did— 

with six companies in which Google was suing because the companies were misusing Google’s trademarks and name. In addition, I 

have read other pending lawsuits Google was involved in over domain names that are oddly similar to Google’s domain name and 

logo. In all of these instances, other companies were profiting off 

of Google. 

So I think you can see where I am going with this. I think you 

can understand the frustration of copyright holders because they 

are having their content being illegally sold via the top results from 

searches on your search engine, and they are actually making a 

profit from that. 

234 

So can Google play a more proactive role in this in combating 

some of the deliberate illegal sites without infringing on any 

other—— 

Mr. WALKER. Yes, I think we can. And look, we not only understand the frustration, we share it. As you said, we are a big IP 

owner ourselves. We went after some bad guys who were misusing 

our name in scammy sort of ways that were misleading consumers. 

You know, buy the Google work at home kit which, of course, had 

no association with Google, and pay 100 bucks to get a bunch of 

worthless paper. And we went after those guys and won that case. 

And we are committed to doing that against all these bad guys 

when we can identify them and clearly know who to go after. It is 

one thing for us, though, to be able to remove the individual links 

to stuff that we can look at and say, yes, that is infringing, and 

another to try and go after the entire domain. That is a harder procedural thing for us as a private company to do. 

Mr. QUAYLE. Thank you very much. 

Mr. GOODLATTE. I thank the gentleman. 

The Chair now recognizes the Ranking Member of the Judiciary 

Committee, the gentleman from Michigan, Mr. Conyers, and as I 

do that, I will ask the Vice-Chairman of the Committee, Mr. 

Quayle, to take the Chair. 

Mr. CONYERS. Thank you. 

Attorney Christine Jones, why can’t you organization build intellectual property protections into its user agreements and terminate 

customers that provide or facilitate online piracy? 

Ms. JONES. I am sorry. I missed the last word. Online privacy? 

Mr. CONYERS. Piracy. 

Ms. JONES. Oh, piracy. I think we do substantially build those 

protections into our agreements, and the agreements are written 

generally very broadly. 

Like Google and other providers, we do rely on the content industry to let us know when they find things that are inappropriate. 

But what we do that is somewhat more aggressive than most is 

if there is some infringing content and the person who runs the 

website doesn’t cure it, we disable the entire website because you 

either are engaged in unlawful activity or you are not. There is no 

such thing as halfway. So if your domain name contains bad stuff 

and you don’t take it down, we kill the entire domain. Period. If 

you fix it, we will put it back up. But we don’t incentivize people 

to make part of their website good and part of their website bad 

because as our First Amendment professor—I call him a professor—says, some of it is good and some of it is bad, and you have 

to be able to make a decision. 

Mr. CONYERS. You say you are doing it already. 

Ms. JONES. I think we do it already, yes, to the extent that we 

can. 

Mr. CONYERS. Mr. Kent Walker, when someone types in child 

pornography into a Google search, Google doesn’t connect the user 

to images of child abuse. Now, that means to me that the technology exists to block illegal material from appearing in your 

searches. Why don’t you employ the same technology to block 

searches for illegal content and illegal goods? 

235 

Mr. WALKER. When it comes to child pornography, we do two 

things that are unique compared to the problem of online counterfeiting and infringing material. Child pornography is recognizable 

to some degree with filters. You can build a filter that will detect 

flesh tones, for example, most flesh tones, and that gives you a 

clue. And then you can use human reviewers to look at the sites 

one at a time, and to some degree, as the Supreme Court has put 

it, you know it when you see it. And we have people who are working on that. 

In the context of unauthorized goods where it is not clear who 

has got the legal rights to something, it is much harder. You may 

remember the case that Viacom brought against YouTube not long 

ago. Viacom itself sued us over thousands of clips from their files 

that they had actually authorized—they or their subsidiaries had 

authorized be uploaded to YouTube. So they themselves didn’t actually know what was legitimate or what wasn’t. So it is a harder 

problem. 

Mr. CONYERS. So why can’t you block the searches? Tell me the 

answer again. 

Mr. WALKER. Sure. We can in cooperation with the content 

owner. If they let us know that a given item is unauthorized, we 

block that search. We take that link out of our results if it is for 

copyrighted material. 

Mr. CONYERS. Could I ask the Director of ICE? I am glad you 

didn’t mention all the lack of due diligence and collateral damage 

that occurred February in your organization during recent seizures 

where legitimate sites were taken down in droves. Do you want to 

admit that before we get to the question? 

Mr. MORTON. Either way. 

Mr. CONYERS. What do you mean ‘‘either way’’? 

Mr. MORTON. If you want to continue with your question—— 

Mr. CONYERS. I mean, didn’t that happen? 

Mr. MORTON. What happened in that case, Ranking Member 

Conyers, was this. That wasn’t an IP investigation. It had to do 

with child pornography. We were investigating 10 sites that were 

offering images of children as young as 4 and 5 engaged in—you 

know, in sex—— 

Mr. CONYERS. Yes, but how did you get the good guys involved? 

That is what I am getting to. 

Mr. MORTON. What happened in that particular case was that in 

one of the 10 sites that we were seizing, the seizure was overbroad 

and the site we were going after was a subdomain of a secondary 

domain level. And we seized for a little less than 2 days more than 

that site. Two people contacted us. We noticed our error and we 

put all the sites back up. 

Mr. CONYERS. Okay. 

The last question, with your forbearance, Mr. Chairman, to Professor Abrams. What did you think of the Senate attempt on the 

same subject we are working on? 

Mr. ABRAMS. I thought the Senate attempt was constitutional. 

I think the notion of trying to define a rogue site in a way which 

requires a very stiff showing, a very difficult but a possible showing, of a site itself or a domain itself being so devoted, dedicated 

in the draft statute’s language to infringement works—and I think 

236 

that it works in a way which goes beyond the simple question of 

what can happen to that site. It raises issues, at least, about intermediaries. If you have a court and the court says this whole site 

at this moment as it is today, this whole site is an infringing site, 

and you get a court order to that effect and you serve it on ISP’s, 

it seems to me perfectly constitutional to require the ISP not to 

carry material from the site. And that would be true of other intermediaries as well at least with respect to direct links to the site. 

I mean, I don’t think you can limit information about the sites. 

I don’t think Google can be limited any more than the Washington 

Post can be limited in writing about, containing a summary, describing, mentioning the website involved. But I think intermediaries might well be able to limited after being served with a 

finding by a court from linking to a site that has been held by a 

court to be an infringing one. 

Mr. QUAYLE [presiding]. Thank you. 

The Chair now recognizes the gentleman from North Carolina, 

Mr. Coble, for 5 minutes. 

Mr. COBLE. Thank you, Mr. Chairman. 

Good to have you all with us, I will say to the panel. 

Mr. Abrams, I think you touched on this. I was going to ask you 

how precise does the definition of rogue websites need to be in 

order to be constitutionally sound. Did you want to add anything 

to it? I think you have touched on that. 

Mr. ABRAMS. Not really. I mean, obviously, language has to be 

very carefully drafted, but I think the notion at least of the Senate 

bill which focuses on dedicated to infringing with no other commercial purpose than infringing, which as I said is a very tough standard to meet, but if that can be met, I don’t think there is a constitutional right of that site anymore to continue as it had been operating previously. 

Mr. COBLE. I thank you, sir. 

Mr. Walker, some have alleged that Google benefits from illicit 

websites through advertising revenue. What do you say in response 

to that allegation? 

Mr. WALKER. These sites cost us money, sir. They cost us money 

to try and get rid of them. They cost us money when we find them 

and we refund money to advertisers. They cost us money when 

they use fake credit cards or stolen credit cards to pay for what 

they are doing. We have no interest in having advertising on these 

sites. We have no interest in having advertising leading to these 

sites. 

There are two separate problems here. One is a problem of the 

digital piracy, songs and videos, which typically are given away for 

free on the Web. Those sites have no trouble drawing traffic. Everybody wants something for free. Those sites have a problem with 

monetization and so they use ad services to try and raise money, 

and we want to block that. And in fact, every time you see a Google 

ad on one of those sites, if they have gotten through our systems, 

there is a way to click on that ad and report that site for having 

infringing content on it. 

There is a separate problem with regard to people selling counterfeit and real goods, analog goods, traditional stuff. Those sites 

have no problem making money because they are making the good 

237 

for this much and they are selling it for that much. Their problem 

is they are trying to drive traffic. And so on that side for our systems, that is an AdWords problem, and so we go through the ads 

on the Google sites and try to make sure that we don’t have ads 

going to sites that are infringing like the Louis Vuitton sites that 

we talked about before. And when we find it, when we hear about 

it, we pull them out. 

Mr. COBLE. I thank you, sir. 

Let me ask you another question, Mr. Walker. If Google learns 

that certain websites are illicit or illegal, can it restrict those 

websites from its searches? 

Mr. WALKER. So we have been talking sort of on the advertising 

side. The search is more challenging, and again, to Mr. Abrams’ 

point, we need to be very focused here. It is correct that if we have 

the Government come and tell us that a given site is illegal, we can 

address that problem in our search results. But we want to do that 

in a way that, obviously, has appropriate due process involved and 

doesn’t put us in the position of having to make those evaluations. 

Right now, we need to work together with the content industry to 

do that. 

Mr. COBLE. I thank you, sir. 

Ms. Jones, what is your recommendation for the best approach 

to eliminate these websites in the United States and abroad? Or do 

you have a recommendation? 

Ms. JONES. Sure. I always have a recommendation. 

We have had a really good—— 

Mr. COBLE. Truth is a good defense. If you can do it, it ain’t bragging. 

Ms. JONES. We have had a really good string of luck with voluntary cooperation from all of the players on the Internet to take 

action against operators of websites that are engaged in bad action, 

whatever their service is. So I recommend that we as an industry 

do that first and foremost. So, in other words, if I send to Google 

the 36,000 domain names that we took down under the Ryan 

Haight Act in 2010, I think Google ought to disable the search to 

those sites, and I think Visa and MasterCard and PayPal and Discover should disable the payment processing. And I think FedEx 

and UPS and the United States Postal Service should stop shipping 

drugs for those companies, and so on and so forth. 

However, we know that not everybody cooperates and not everybody is a good guy. So in addition to that, I think we have to have 

legislation that says if you don’t, there is a consequence. If we give 

you notice and you take down your services, you’re good. If we give 

you notice and you fail to respond, you’re not good. That is my recommendation. 

Mr. WALKER. Mr. Coble, could I jump in on that for a moment? 

Mr. COBLE. Sure. 

Mr. WALKER. I want to make the point that the real way to go 

after these guys is to go after these guys and get them off the Web. 

Because if they are out there just saying they can’t be in a search 

engine or they can’t be in Facebook or they can’t be on a blog or 

a link to them can’t be there isn’t going to solve the problem because people are going to talk about them, and when they talk 

about the Pirate Bay or someone else, those links are going to come 

238 

back up in any search engine worth its salt. So our worry is that 

we can cut—we would recommend cutting off the money to these 

guys. Cut off the advertising. Cut off the financial services. When 

you start to go after the pure search side of it, the risk is that you 

are both overbroad and ultimately ineffective in doing it. 

Mr. COBLE. I see my red light has illuminated. I yield back. 

Good to have you all with us this morning. Thank you. 

Mr. QUAYLE. Thank you. 

The Chair now recognizes the gentlewoman from California, Ms. 

Lofgren, for 5 minutes. 

Ms. LOFGREN. Thank you, Mr. Chairman. I think this is an excellent hearing and it shows how complicated some of these issues 

are, and yet it is important that we deal with the challenges in a 

way that is serious but also works as a technical matter and also 

with an eye to our Constitution, not only the First Amendment, but 

the Fourth Amendment. We want to make sure that we are effective but smart. 

And along those lines, Mr. Morton, I was interested in the Operation in Our Sites effort. How many of the owners of those sites 

that were the subject of your action were arrested? And for the seizures that have not been followed by an arrest, has ICE attempted 

to make arrests, and if not, why not? 

Mr. MORTON. I will have to get you the exact numbers, Ms. 

Lofgren, but a couple of things are going on. Several of these cases 

are part of an ongoing criminal investigation. So I can’t really predict one way or another how they are going to end up. A few people 

have been arrested and I can get you those stats. 

But the real challenge, as I alluded to in the beginning, is that 

in many of these cases, we have a criminal investigation but most 

of the actors are, for practical purposes, outside of our reach. They 

are not in this country. They are in—— 

Ms. LOFGREN. Perhaps what I can do off calendar is just get the 

stats because you are going to court, you are bringing a criminal 

action, you are getting a matter signed by a magistrate, and I want 

to know then what. How many criminal prosecutions? How many 

arrests? And I am eager—I understand if somebody is outside our 

jurisdiction, that is a more complicated factor which goes to the 

other question I have which has to do with the jurisdiction itself. 

Now, my understanding is that the customs part of ICE—they 

have jurisdiction over goods that cross international borders. What 

is the limit on ICE’s authority over the Internet? Is it the international aspect of it, or is it ICE’s position that you have jurisdiction over the Internet itself? 

Mr. MORTON. That latter proposition is not our position. Our position is that we have jurisdiction over the relevant Federal offenses provided there is the necessary constitutional nexus to the 

United States for the Congress to assert jurisdiction. So in practical 

terms, that means there needs to be some element or instrument 

of the crime occurring here in the United States. 

Ms. LOFGREN. So it is wrongdoing crossing into the United 

States. Is that your position? 

Mr. MORTON. That is right, involving the United States or 

United States rightsholders, some U.S. interest. 

Ms. LOFGREN. But it has to be an international component to it. 

239 

Mr. MORTON. That is right. So if you were engaged in counterfeiting of Indian goods in China and there was no nexus whatsoever to the United States at all, that is not a case we would investigate. 

Ms. LOFGREN. Let me ask you this, and it is something that I 

think people—obviously, we have a need for enforcement, but we 

also want to make sure that things are done in a proper way. Recently—obviously, we are not the same, but Russia used copyright 

enforcement—it was pirated copies of Microsoft software. They 

used those pirated copies as an excuse to go in and take computers 

and shut down dissident groups. And there was, in fact, infringement going on, but they used it really for a political reason. What 

do we have in place that would prevent the Government from that 

sort of activity here? 

Mr. MORTON. Well, I am not familiar with that particular case, 

but I think the short answer to your question is that we have a 

wonderful judicial system in this country. We have a great sense 

of the rule of law. We have a great sense of ethical behavior on the 

part of Government. I have to go—— 

Ms. LOFGREN. No, but procedurally. Right now there is an ex 

parte communication. You go to a magistrate. You say what you 

think. There is nobody on the other side saying what they think. 

You get, in most cases, the order. You take it down. What constraint is there on you? 

Mr. MORTON. I have to demonstrate that there is probable cause 

for the seizure to the Federal judge, and the day we do it, you can 

walk into court and challenge that seizure immediately in addition 

to the separate rights you have to challenge the ultimate forfeiture 

if the Government pursues a permanent seizure of the site. So 

there is a tremendous amount of process that is provided upon seizure. The seizure itself follows the traditional rules in rule 41 

where we go to a magistrate judge ex parte, and we say we believe 

a crime is being committed. 

Ms. LOFGREN. I have about five pages more of questions for you. 

So, Mr. Morton, I will deliver those to you in writing. 

As I listened especially to the testimony from Go Daddy and 

Google, I am reminded that this stuff is more complicated than is 

obviously understood and how useful it might be to have some of 

the big tech presences engage in more deep conversations with content holders who are understandably concerned about what is happening to them. That might yield an effective result that is far superior to what the non-engineers in the Congress might craft. So 

I would just leave that suggestion with the panel. They don’t need 

the permission of the Congress to do that. But I think that might 

be a good outcome of this hearing. 

And I yield back the balance of my time. 

Mr. QUAYLE. Thank you. 

The Chair now recognizes the gentleman from California, Mr. 

Issa, for 5 minutes. 

Mr. ISSA. I thank the Chairman. 

I think I will take the liberty of taking us a little off IP for a 

moment since we have a representative of ICE here. What is the 

financial threshold for you to care about counterfeiting? 

240 

Mr. MORTON. Typically there isn’t one. We are quite aggressive 

when it comes to intellectual property enforcement. Obviously, the 

various prosecutors, the United States Attorney’s offices we deal 

with do have at some point some limitations. There is enough work 

out there—— 

Mr. ISSA. Why don’t you give us an idea? You know, there was 

a movie back, I think, in the 1930’s with Cagney, ‘‘Never Steal 

Anything Small.’’ It was actually a union organization, but it was 

a great one because basically he stole enough to be the hero of the 

union. 

How do we change the system, which Congress has the right to 

do, so that every single crime that you know is a crime can, in fact, 

be pursued in a way that will allow a change of behavior? Now, I 

am not talking about going after the P2P swapper who is exchanging his own library with somebody down the street. But I am talking about somebody who commercializes the selling of counterfeits. 

And I did not say intellectual property. I said counterfeits. I don’t 

see a difference. I don’t think anyone on this panel should see a 

difference of whether it is tangible and you can feel and touch it 

or it simply plays through a speaker. 

What change in the law would allow you to pursue everyone for 

all practical purposes where today you probably pursue what? Onehalf, one-quarter, one-tenth of 1 percent? Certainly you pursue less 

than 1 percent in the tangible world, don’t you? If you find—and 

I will get to the question. 

And I will take an example from my own life. If you find 500 

Viper alarms inside a shipment of—my former life, if you will— 

clothing and it is designated as clothing and you find it, basically 

you seize it and that is the end of the story. Isn’t it? So you found 

tens of thousands of dollars of value. You found registered trademarks, copies of the images that make the product real, patented 

product, tangible, and the most you will do is destroy it. That is 

the practical reality today. 

And you are shaking your head yes. That is the record that I 

hope we will make here today. And I appreciate all the people in 

the IP world. We are talking about organizations. We are saying 

you have to do better. You have to get it down to zero. 

What can we do, in your opinion—and I will take it from each 

of you, please—to get to a zero tolerance? And I am not trying to 

get you to go after fake Viper car alarms or any of the other things 

from my own past. But I will give you a recent one, and I will give 

it to you as anecdotal. 

About a year ago, my congressional office ordered a USB thumb 

drive. They were tired of me carrying three different thumb drives. 

So we ordered one of the new 256-gig thumb drives. We ordered it 

from one of the major companies not represented here today. Their 

vendor was a group, which I will give, called Fantastic Deal. Now, 

today they are called Good Old Deal and Fantastic Deals, but if you 

Google them, you will get the actual company selling on that other 

company. So the meta-data that they put in to make sure that they 

still come up under their old name of Fantastic Deal—and by the 

way, they are still Fantastic Deal when they tell you that we at 

Fantastic Deal are committed to your satisfaction. Please don’t 

hesitate to contact us. They flat shipped on its face—it was 256 gig, 

241 

but it was not made by Kingston. It was not authentic in any way, 

shape, or form. And they shipped it out. They are still selling. They 

paid no price for it. The most they had to do was live up to that 

company’s guarantee of letting me cancel the credit card, which I 

did around them anyway. 

What change from the dais here will allow you to not let those 

go because they didn’t meet a financial threshold that was in the 

tens or hundreds of thousands of dollars? 

Mr. MORTON. Let me start and then I will try to be brief so the 

rest of the panel can give you their thoughts as well. 

Some of it is a resource issue. Some of it is—take ICE, for example—a question of balancing competing enforcement priorities. Obviously, we have to go after the cartel members and child pornographers and other things of weighty importance to the Nation. 

I think the big challenges are focusing on the foreign actors who 

are in the game as a form of organized crime and have no intention 

whatsoever of coming to the United States, of basing their operations here. They are able, sadly in many instances, through the 

Internet to commit a crime on the United States on a grand scale, 

on a repeated scale from afar. 

So we need, I think, a balance of authorities. Criminal authorities will never get us all there. Civil authorities that address that, 

aggressive seizure, penalties for where we can bring U.S. enforcement action. International cooperation is critical. You could give 

ICE triple the number of agents it has. We have no authority to 

arrest people in China. We have no authority to—— 

Mr. ISSA. I appreciate that, although all the examples I gave had 

a U.S. nexus. 

Could the rest of you weigh in please? 

Mr. ABRAMS. I agree with Mr. Morton. I think all we can do— 

but it is important—is to do everything we can to drain actions of 

this sort of the profits that have been building up over the years 

and increasing, indeed, more and more as time passes because I 

agree that the criminal law is not going to work very easily or comfortably when you deal with foreign actors that never come here. 

So we are going to have work, I think, in the main through 

changes in our civil legislation to take all the steps that we can to 

make it impossible or at least very difficult for these entities to 

continue to engage in the criminal—and it is criminal—activity 

that they are currently engaged in. 

Mr. ISSA. Mr. Walker? 

Mr. WALKER. I would have three thoughts building on the comments here. 

First, go after the bad guys directly whether that is more resources for ICE or otherwise. 

Second, it is an international problem. Right now the MLAT 

process, the Multilateral Legal Assistance Treaty process, is broken. It can take months, sometimes up to 6 months, for international law enforcement to cooperate with each other in going 

after these guys. That doesn’t work for them and it doesn’t work 

for us in trying to stop it. 

And then lastly, I agree again: follow the money. If we can cut 

off the funding sources, if we can identify the bad guys and then 

cut off advertising on their sites, that will be powerful. 

242 

Mr. ISSA. Ms. Jones? 

Ms. JONES. Thank you, sir. I would second the comments of my 

fellow panel members, but also from the dais what you can do to 

be helpful to us, to answer your question, is give us cover so that 

if we take action against these people, we have a safe harbor. We 

don’t have people suing us. We are not going to jail. We want to 

help you but you have to help us help you. 

Mr. ISSA. Thank you for the best of all answers. 

I yield back. 

Mr. QUAYLE. Thank you. 

I just want to put everybody on notice we have been called for 

a vote, but the Chair recognizes the gentlelady from California, Ms. 

Chu, for 5 minutes. 

Ms. CHU. Well, thank you, Mr. Chair, for convening this important hearing. 

As you know, this issue of online piracy is of great concern to my 

Los Angeles district, given the importance of the motion picture 

and recording industry to the city and the many residents who are 

employed by them. So I hope that we can all work together to come 

up with a solution that gives law enforcement a real tool to stop 

this practice. 

While the Combating Online Infringement and Counterfeits Act 

that was introduced in the Senate last year is a great start, I am 

concerned that it doesn’t address the problem of cyberlockers that 

are flooded with infringing content. It is important that we don’t 

hurt legitimate business interests, but these businesses that reward these customers for uploading infringing content and refuse 

to penalize the offenders are not legitimate business interests. So 

I hope that we can address these infringing websites and 

cyberlockers. 

I also want to thank Mr. Morton for joining us today and for all 

the great work that he has done on the Operation in Our Sites. 

And let me just start then by asking Mr. Walker. I am very concerned, of course, as you heard, about the infringement facilitated 

by the cyberlockers, but I don’t want to affect legitimate developments in cloud computing. How can Congress help law enforcement 

go after the bad actors in the cyberlocker space without interfering 

with legitimate economic interests? 

Mr. WALKER. It is the right balance to draw, Congresswoman. 

The challenge with cyberlockers, which are really just a different 

way of describing storing content online, is a real one because, as 

you can tell, the entire direction of the industry is in favor of moving toward the cloud, allowing people across the country, across the 

world to access music, video, content, documents, email in much 

more flexible ways than they were able to even a dozen years ago. 

That is a great thing for consumers and then we think ultimately 

a great thing for the content industries because it provides more 

platforms and more ways that people can consume content lawfully 

and legitimately. iTunes is in a sense a version of the cyberlocker 

that allows you to download information from the cloud. We have 

seen other significant companies launch ways of offering online 

storage. 

When you get into the question of the legitimacy of the business 

or not, it really goes to the question of an intent to induce infringeVerDate Aug 31 2005 11:30 Jan 02, 2013 Jkt 000000 PO 00000 Frm 00250 Fmt 6601 Sfmt 6601 H:\WORK\IP\COMBINE\65186.001 HJUD1 PsN: 65186
243 

ment, and the existing copyright laws have been used in some 

cases to go after companies that clearly, again, are sort of dedicated 

to just having illegal content hosted and promoting that kind of activity, distinguished from legitimate companies who may have 

broad-based, multipurpose storage that is abused by some of their 

users. That does raise more difficult First Amendment questions. 

Ms. CHU. How about you, Ms. Jones? I understand Go Daddy 

also provides remote storage services. How can we ensure that law 

enforcement has all the tools that it needs to go after cyberlockers 

that intentionally promote the sharing of infringing content without impeding legitimate businesses? 

Ms. JONES. We are a very large provider of cloud-based services. 

And it is difficult for us to go, say, scan all of the files that are 

stored on our online file folder product. But what we can do is limit 

storage, limit bandwidth usage, and know patterns of behavior so 

that if there are very, very, very large quantities of data and they 

all seem to be copies of movies, our system might pick that kind 

of thing up. 

But short of that, it is really important to us to have information 

from the content providers. So if it is the song makers, the movie 

makers, the video producers, whatever those people are, to help us 

be helpful and also so that it helps law enforcement to know which 

ones to go after because it is not enough for me to just say customer A has 47 dedicated servers and they are all filled with video 

stuff. It is not good enough because I don’t know if it is legitimate 

content or not. That guy could have bought 47 dedicated servers 

worth of videos. 

So it is really important for us to be able to identify—and I think 

Mr. Walker has pointed this out as well—what is the legitimate 

content and what is not. Again, we don’t want to be facilitating bad 

guys, but we need help to identify which ones they are. 

Ms. CHU. Thank you. 

And, Mr. Morton, what are the next steps in Operation in Our 

Sites? 

Mr. MORTON. Well, we are going to continue to work with industry. We have been very careful not to focus on any one industry 

over the other. As you know, sadly the whole landscape of American industry is under assault right now. So we will focus on pharmaceutical sites. We will focus on entertainment sites. The counterfeiting sites we can do all day long, sadly; there are so many of 

them. And we are just going to keep at it. Wherever we can, we 

are going to pursue a full criminal investigation for those sites. 

Where all of the elements of the crime, other than the domain 

name, are outside of the United States, we will focus on the domain 

names and take them down as aggressively as we can, recognizing 

that is not the long-term solution. It is one part of trying to combat 

this problem. 

But we got to do something. My perspective is do nothing and 

you fail, and so we have tried very hard to get out there, do something, and work with the other parts of the system to get us to a 

better, more comprehensive solution. 

Ms. CHU. Thank you. 

I yield back. 

Mr. QUAYLE. Thank you very much. 

244 

As previously noted, we have a vote. So this hearing shall be 

temporarily adjourned until immediately following the vote. Recessed. Thank you, Mr. Watt. 

[Recess.] 

Mr. GOODLATTE [presiding]. The Committee will reconvene. 

Before I turn to the gentleman from California, I would like to 

ask unanimous consent to enter in the record two letters: one from 

the National Center for Missing and Exploited Children dated 

March 30, 2011, addressed to Chairman Smith and pertinent to the 

issue raised by the gentlewoman from California; and another a 

letter to the Members of the United States Congress from a coalition of groups dated March 30, 2011 on a related subject. 

[The information referred to follows:] 


65186BB1-1.eps
245 


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April 4. 2011 

PagG two 

In another (.;u-s,e, a 29~ycar-o k! convicll~,(l ,",eX {)ffendcl' from Dallas" Texas) was. recently sentenced 

to more thun14 yeat~ in pri:'lbJl for p(ls~c's:;iollnf child pOl'l1ography. 111e invesdgatI011 began 

when I1n ESP made a Cyl>el'Tipline report to NeMEC regarding a subscriber and app<1rcnt child 

pOf1\Qgraphy. ,1u the cQu:rse of lCE's investigation, the man admitted La possc"ing child 

pOll\ography, inclnding image, of prepubescent children and images lhal depicted '."istic amlfor 

m~lqochiStic nct~. 

These are jns! t\VO of miHly such et1;')c'! demon:mnring the strong collaboration between NeMEC 

and ICE, PJease dna't llcsttate to cOnttl:ct me if you need additi(mal information. 

Sincerely, 

EmieAllen 

President and CbiefExecutivc Officer 
246 


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in June 1010, h., slepped forwa.d 10 protl>Cl US. ;ndu<tfie~ and dtllen< f.o", Ihi, fo.m of cybe.Cffme, 

A$ you know, I~ U.S. inlell~tlual p.operty ilP) industriei-ol which our; is one-a.e (filical to the 

health 01 Our economy. Ou. 'ndustry alone product's billions in tax .evenu2 each ~al, consi,tently 

Bene'"le< ;o pOlitive balance of tude with ellE'ry country in the world, and hal <hown it can contribule 

to Ihe economic .ecove.y of area$ h.rd.hit by !I.e .ecession. We a.e woven into the tab.icot the U.S. 

economy. 

Mo.e Ihan 2.4 million working Ame."",ns .• esiding;n al) 50 U.S. state" rely on the motion pictule and 

teleVIsion Indultl"/ for lherr livelihoods. While il i1 I,ue that o ur indultry employs some well.knOWil 

anlsts, Ih>! is not Ihe .nl <lory 01 our bUI;n .. ". Whelhellhey a.e -"'I bu~del<, costume.designer./ 

elect.icians, assist ani directors, orc •• t members, Ihe overwhelming majo.ity oflho.e who wo.k behind 

Ihe scenes in our industry a.e middle dasswo.kers who ~.e p.oud to be patt of a businen Ihal hu 

cfl!"ted. qUinle"enlial American p.oduct ro. ,limO$! 100 VI1<1'S' filmed "ntenainm~nt, Th" majo. 

Inotion pictu.e companies r.lp.esentonly a fraction oft ~ bu,i"" .. es thaI make up our Industry, as 

Ihere a"' ;O hostol U.S. companies who playa c,ltleil lole in the creation of filmed I1nlertalnmenl 

providin! I"chnolo!~ and 'ervlces u!ilr~ed in e\olt!ry <lep of the po't_p.oduction procen_ More Ihan 

95,000 small bu~i""s,es-93 p~rcent of who .... employ j~we' than 10 people-are inll<llved in the 
247 


65186BB2-2.eps

production and distribution of movies and television. Those individuals, small business owners and their 

families are extremely vulnerable to changes in the production economy. 

Digital theft threatens the jobs of all who work in our business. Such theft destroys the ability of those 

who finance and produce filmed entertainment to recoup their investment, and in turn, the ability of 

film artists to continue to create. The majority of films produced must secure financing and distribution 

partners prior to production. Digital theft damages the confidence of those partners in their ability to do 

so, the end result being a diminished number of films being made and American jobs disappearing. 

We are not talking about a distant future. Over the last three months, no fewer than three reports have 

demonstrated that infringing content represents a significant percentage of global Internet traffic. Most 

recently, a report released by Envisional, an independent Internet consulting company, estimated that 

almost a quarter of global Internet traffic and over 17 percent of u.s. Internet traffic is copyright 

infringing. This is a level of theft that cannot be sustained without significant damage to the motion 

picture industry, the workforce it supports and the American economy. 

We commend Congress for providing resources dedicated to investigating and prosecuting 

counterfeiting and IP theft. The Intellectual Property Enforcement Coordinator's (IPEe) Joint Strategic 

Plan on Intellectual Property Enforcement released in June 2010 committed to using these resources 

and existing resources to increase law enforcement activity. ICE, the Department of Justice, and the IPR 

Center have stepped forward to carry out that mandate. Operation In Our Sites has not only put illegal 

sites out of business, but has raised public awareness about this specific form of crime on the Internet. 

Most importantly, these enforcement efforts have resulted in most of these entities ceasing their illegal 

activity. Movies and TV programs, some of the biggest draws on the Internet, are in many ways the 

"canary in the coal mine." Stealing and illegally selling this content may appear to be victimless crimes 

or a harmless form of theft, but they are neither. If it is not made clear that this kind of activity is illegal, 

it has the potential to become the harbinger of even more forms of illegal activity on the Internet. 

Last month, the IPEC released its first annual report to Congress, reiterating not only the detrimental 

impact of copyright infringement on the economy but also the need to work with Congress to update 

intellectual property law to improve law enforcement effectiveness. We fully endorse that proposal, as 

we endorse the actions of ICE and the IPR Center. 

We look forward to working with Congress and the Administration to support strong I P enforcement 

and to secure the additional resources that will protect our industry-and American jobs-from those 

who engage in the illegal activity of digital theft with disregard. 

Sincerely, 

American Federation of Television and Radio Artists (AFTRA) 

Deluxe Entertainment Services Group Inc. 

Directors Guild of America 

Independent Film & Television Alliance (IFTA) 

International Alliance of Theatrical Stage Employees (IATSE) 
248 

Mr. GOODLATTE. At this time, it is my pleasure to recognize the 

gentleman from California, Mr. Berman, for 5 minutes. 

Mr. BERMAN. Well, thank you very much, Mr. Chairman, and 

thank all of you for your testimony. 

Mr. Morton, I want to join with others in praising some very effective initiatives you are undertaking to deal with the problem we 

are discussing today. 


65186BB2-3.eps
249 

Mr. Walker, I appreciate your testimony and your comments 

about the Digital Millennium Copyright Act. I am sure the Chairman of the Subcommittee does. He spent a great deal of time negotiating that legislation, and a lot of us were involved in it. But if 

that legislation were really working, I don’t think we would be having this hearing. I don’t think there would be a Senate bill. I don’t 

think Customs would be undertaking the initiatives it is undertaking. 

Ms. Lofgren is right. This is a complicated subject. But there is 

one element that is quite simple, and that is truly billions of dollars and thousands of jobs are being lost because of digital theft. 

I think we are focused on trying to do something about it. 

In terms of a legislative approach, I wanted to take off on what 

you said. You said that Google doesn’t want to be the judge, jury, 

and executioner. But right now under the Digital Millennium Copyright, you are the judge, jury, and executioner. You don’t just take 

down anything that you are asked to take down. You go and try 

and go through some process to determine if it is a valid request, 

if in fact it is directed at infringing material. 

The legislative approach is an approach to try and create a process where a judge is the judge and all you have to do is be the executioner. I am wondering if in that sense this might be something 

you would be more enthusiastic about because it puts the onus of 

looking at the whole site and whether it is—I mean, nothing is 

going to be 100 percent infringing because some things will be in 

the public domain that could be on that site. But fundamentally it 

is a site that is marketing illegally placed content, content without 

permission of the copyright owner. 

So I guess I would like your thoughts. Let me ask a few questions and you can answer them. One is I would like your thoughts 

on whether having a judge rule that a site itself is dedicated to infringement and blocking that site may be a far more effective way 

of ensuring due process while actually making a difference, and 

also your reaction to the notion that the DMCA, as good as it is, 

in the context of today’s technology, yes, you get that takedown letter. 

You try to do it expeditiously, although there is testimony submitted for the record which says that it frequently takes as much 

as 20 days for you—or maybe that is an average of time before actually the link comes down. And I believe Google has said they are 

going to try and do this within 24 hours. But I do notice that the 

searches and the algorithms take a few seconds. And when you are 

talking about a newly released film or music, 24 hours on a site 

is disaster in terms of the millions of people who can then get it 

for free. 

But your notion of why a judge doing this isn’t more effective 

than putting all the onus on you. 

And correct me if I am wrong, but when you get such a letter, 

you take down the link to that site. I don’t even know if you have 

the legal ability or the functional ability to take down that site as 

a site. So all you are doing is taking out a link to one of what could 

be thousands of different works that are on that site. It is a little 

bit like trying to empty the ocean with a bucket. And I would like 

to get your reaction to some of those things. 

250 

Mr. WALKER. Sure. There were a lot of comments there, so let 

me try and address them all, and if I miss one, please let me know. 

I would say our fundamental position is that we agree that there 

is a way to complement the DMCA. The DMCA has been very effective for what it has done, but there are additional measures that 

can be taken to go after the money, to go after some of the advertising, to go after the payment processors that may reach some 

things that are outside the copyright domain, counterfeiting and 

the like. And we have indicated we are happy to work with the 

Subcommittee on that. 

There is a balance, obviously, because there are millions of dollars—billions of dollars on each side of the table. Google accounts 

for $54 billion in economic activity in the United States. 

Mr. BERMAN. Yes, that is important and innovation is important. 

But to the extent that some portion of that billions of dollars is 

coming from giving people access to copyrighted works that they 

didn’t have their permission to use, it is fruits of poisonous trees. 

Mr. WALKER. Sure. No, we understand and we don’t want money 

from illegal services and never have. But most of it, the vast majority is going to small businesses, small publishers, advertisers 

whose businesses actually exist because the Internet is out there. 

So we are trying to, again, separate the wheat from the chaff and 

do it in the most effective way we can. 

The DMCA has been a good model for what it has done. That notice and takedown has been very robust and the work of this Committee and Congress has been adopted around the world in Europe 

and elsewhere. So we want to be careful about doing something 

that would undercut that. But that is not to say we are opposed 

to additional sort of targeted measures that go after things. 

To your comments and Ms. Lofgren’s comments earlier, we are 

in fairly frequent conversations with the general counsels and representatives of the trade associations, of the major motion picture 

studios, the RIAA, et cetera to try and refine and improve and 

streamline our processes. In many cases it is challenging. It does 

take a long time—and we are hoping to make it a much shorter 

time—to go back and forth through the different DMCA notices we 

get. There are a lot of people out there who just don’t understand 

copyright law or are using them for abusive purposes to try and 

take down competitors’ sites without a legitimate legal claim. And 

we need to sort through those, but I think we can do it, especially 

with regard to some of the online tools that we are soon to be 

launching in a much faster way than we are doing now. 

You had asked also with regard to question of—there was one 

question about pre-release movies. We have actually talked to the 

studios about that and are there ways of being able to address that 

in an even more expedited fashion where there is real economic injury at issue there. 

And then lastly, I would say we do have—focusing on your question with regard to whether or not a court finding would be useful 

in this, before anyone takes significant steps of taking away a domain name or cutting off advertising to a site, I think it is appropriate for a court to weigh in with appropriate due process to review that. And the model of doing that in a way that is targeted 

on the truly bad sites—and I think for some reasons we have 

251 

talked with the staff on the Senate side with regard to the bill that 

was introduced in the last session. In some ways that definition 

was somewhat overbroad and created some of the free expression 

and due process issues we have talked about. But we are optimistic 

that we can work together to get to a more focused definition and 

we would be prepared to support that. 

Mr. BERMAN. Mr. Chairman, my time is quite expired. Could I 

squeeze one more in here, though? 

Mr. GOODLATTE. Without objection. 

Mr. BERMAN. In your testimony, you say the DMCA has practical 

and real effect on thwarting infringement, and legislation that targets the worst of the worst should not increase liability for online 

services that are playing by the rules. 

What if we maintained the level of liability, not increase the liability, but required more affirmative steps to be undertaken under 

that standard of liability? 

Mr. WALKER. Well, I think much of the proposal, again, on the 

Senate side would have required affirmative steps based on a finding that a given site was dedicated to illegal content by having us 

remove it from our search results. And we are—— 

Mr. BERMAN. But that doesn’t increase your liability. 

Mr. WALKER. No. I think generally not. Ms. Jones has raised concerns about needing to have a safe harbor on that side, but generally speaking, we have been able to terminate people for violating 

our policies without getting suits back from the bad guys in response. 

Our focus has been mostly on the collateral consequences of undermining the DMCA. For example, if a site is judged to be bad 

and that URL is out there and then somebody using our services 

posts that URL in a Google doc or in an email—I send you an 

email that includes that URL—well, Google is now hosting that 

content in a sense. Are we liable for including that URL? I think 

the common sense answer is no we shouldn’t be and that the 

DMCA insulates that from liability, but if just that sort of in rem 

order were deemed to be de facto red flag knowledge, there would 

at least be an open question. So we need to clarify those kinds of 

unintended consequences. 

Mr. BERMAN. Thank you. 

Mr. GOODLATTE. The gentleman from Florida, Mr. Deutch, is recognized for 5 minutes. 

Mr. DEUTCH. Thank you, Mr. Chairman. 

Director Morton, you and I have spoken many times about the 

recent ICE seizures of rogue websites, and I have been very open 

about my admiration for the way that your office took the absolute 

worst of the worst of these websites hosting illegal content. And I 

would just like to say publicly again that more agencies, I think, 

ought to take a look at their existing authorities and find new ways 

to use those clear and established powers to combat and recognize 

problems, and I hope that others will learn from your excellent example. 

Mr. Walker, I wanted to follow up on two online points and then 

shift slightly. 

You had spoken earlier about autocomplete and the fact that 

autocomplete really reflects what people are searching for. That is 

252 

how it actually works. Is there anything that you can do to change 

that? For example, drugs, pornography. Is there any way that you 

ever modify autocomplete so that it doesn’t show the list of search 

terms that might actually be a popular search term? 

Mr. WALKER. There are, in the pornography realm, for example, 

terms that are facially offensive to virtually every user of the site 

that are blocked. Yes. 

Mr. DEUTCH. So it is possible. It is not simply the will of the 

masses that will dictate what autocomplete shows. It is possible to 

actually—— 

Mr. WALKER. No. Absolutely, and we have already said that we 

are doing that in this context as well. 

Mr. DEUTCH. And then one other follow-up. The issue of searches 

and the efforts that you have taken on specific websites and specific searches where it is clear that they lead to pirated material, 

stolen material. In addition to those terms, do you also include specific websites that are provided to you? I mean, a lot of times people who search the Web who go on Google are fairly sophisticated. 

They know what they are looking for. They don’t need to search 

free movies or free music. They know the site that they heard 

about in their high school class. That is what they go to search for. 

So have you taken steps and can you take steps to stop so when 

someone starts typing in whatever that violating website is, that 

that website name won’t come up as well? 

Mr. WALKER. Yes, and that is consistent with the effort we have 

already announced. And we are working with the content industries to try and focus on that. 

Mr. DEUTCH. Great. 

And so I would like to just shift then and move on to really 

where the world is going and that is apps. There was a conversation earlier, an exchange that you had, where there was some discussion of this Grooveshark app that was removed from your marketplace. I just wanted to pursue that a little bit further. That was 

ultimately taken down. When were you first made aware that that 

site was available—that app was available in your marketplace? 

Mr. WALKER. I am not sure, Congressman. We can get back to 

you. 

I will tell you that the apps marketplace has probably been in 

existence for a little bit more than a year. During that period of 

time, we have removed something on the order of 2,000 different 

applications for a variety of reasons, including intellectual property 

infringement. 

Mr. DEUTCH. Okay, because I played around on one of my staff 

member’s Google phones and went to the App Store, and still when 

you type in ‘‘free,’’ the autocomplete on the phone will finish and 

you can find free music. And if you go to free music within the 

marketplace, you can still find what appears to me to be hundreds 

of sites that deal in stolen music, stolen movies as well, perhaps 

stolen books. I couldn’t quite tell. That wasn’t as easily identifiable. 

So if you could speak to the efforts being made to crack down. 

There is one example, this one app that you took down. But what 

steps are taken? What do you do to actually take them down? 

And if I can suggest, when you are in the store, there is an opportunity for you to flag as inappropriate the app that comes up. 

253 

and I would respectfully suggest that in addition to the reasons 

that you list already, sexual content, graphic violence, hateful or 

abusive content, and other objection, that it might be helpful for 

those of us who are concerned about these issues and who monitor 

this to include a specific check-off box for stolen content, pirated 

content, whatever you think is most helpful. I think that might 

help you investigate. 

But if you could speak a little bit about the steps that you do 

take. 

Mr. WALKER. It is a helpful suggestion, Congressman, and we 

are, across our products, trying to have a more standardized approach to Web forms that allow people to report all of the kinds of 

content that we are talking about here today and create cues for 

review and processing that in an expeditious way. 

We do have a team of people who review the apps in the App 

Store. It is sometimes challenging because any number of people 

have an incentive to get their app in there. In some cases those 

apps are camouflaged or difficult to determine. There are legitimate apps that will allow you to obtain free content, and there is 

a lot of legitimate free content out on the Web. And so we are trying to distinguish the apps that are well intentioned from the apps 

that are essentially designed to induce infringement. And that is 

the approach that we have taken there and continue to take as we 

review these, as well as apps that are trying to get malware out 

and various other sort of negative content. 

Mr. DEUTCH. And again, what I am concerned about is your marketplace. And if you could actually help me understand this a little 

better. Your marketplace functions essentially as an online mall, 

and stores open in this mall. In a traditional bricks and mortar 

mall, those stores would pay rent. Can you explain how Google is 

compensated by these apps that pop up in the marketplace? 

Mr. WALKER. Sure. It varies which is perhaps one of the reasons 

why it is not as clear as it could be. Many apps are free, so there 

is not compensation per se. Some of those are supported by advertisements; some of them are not. And then some of them where you 

actually pay for the app, and in that case, Google takes a small 

amount of money as a fee for its service in providing the platform. 

Mr. DEUTCH. On the free apps, the ones that are free to the consumer, is there any other way that Google is compensated for 

those? Are there advertisements that—— 

Mr. WALKER. Yes. They may choose to use advertisements or 

they may not. And they may use Google ads or other forms of ads. 

Mr. DEUTCH. I hope that you can understand my concern here. 

In a traditional shopping center, there would be no place for any 

store that opens that sells illegal goods. In this case, Mr. Morton 

and his good folks are effectively playing the role that the sheriffs 

in Palm Beach County would play if a shopping center opened in 

my district that wanted to sell illegal merchandise. And those 

stores would immediately be shut down as soon as they were notified. 

Just trying to bring this full circle, I would ask that you can provide the Committee with some details on the Grooveshark example 

since it has been touted as a great example of your efforts to try 

to crack down on these apps that merchandise in illegal goods. I 

254 

would like to understand when you were first notified and how long 

it took to investigate. If there is any way for you to determine how 

many songs might have been downloaded illegally during the period of that investigation, that would all be most helpful, I think, 

as we go about this. 

And finally, Mr. Chair, if I could also ask—I know you are going 

to be requesting some additional information as well. I hope that 

you can broaden your request to focus on the application world as 

well, given that this is really the direction that we are going. 

Mr. GOODLATTE. Yes. If the gentleman would yield. If the gentleman would work with the Committee staff, we will be happy to 

incorporate your question into the questions that we will submit to 

the members of the panel. 

Mr. DEUTCH. I appreciate it, Mr. Chairman, and I will yield back. 

Mr. GOODLATTE. I thank the gentleman. 

The gentlewoman from Florida, Ms. Wasserman Schultz, is recognized for 5 minutes. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. 

Mr. Chairman, Ranking Member Watt, who I know is not here 

at the moment, I really want to start off by thanking you for holding this hearing today and for officially opening this investigation 

into rogue websites here in the House. 

As our economy continues to recover, we really must take every 

action that we can to create jobs and meaningfully address intellectual property theft. It is a great place to start. 

That is why I have been having a conversation with Google about 

this for almost 3 years now. Mr. Walker, it is good to see you. 

In the last hearing, Mr. Chairman, I focused on the problem of 

advertising on rogue sites, advertising which not only lines the 

pockets of those who facilitate theft, but also advertising that 

makes many of these rogue sites seem legitimate to unwitting 

users. 

Today, Mr. Walker, I would like to talk with you about two related issues, as you have spent the morning doing talking about 

your autocomplete feature on search and your notice and takedown 

times under the DMCA. First I want to start with autocomplete. 

In your testimony, you say that Google is committed to prevent 

terms that are closely related with piracy from appearing in 

autocomplete. And you go on to say that you are working with the 

industry stakeholders to suggest specific terms that shouldn’t appear in autocomplete. 

And you were kind enough to come see me in my office almost 

a month ago, March 10th, and I raised this issue with you then. 

So I know you won’t be sandbagged by my raising it here now. I 

showed you—let me just grab it—this screen shot, and it was a 

screen shot that lists what comes up in a search when you type in 

the word ‘‘knock-off.’’ 

Then Google’s algorithm automatically filled in the suggested 

search terms that I described, some of which UGGs and Coach 

were the names of specific brands. I showed you this screen shot 

which showed all the suggested autofills when I typed in the word 

‘‘knock-off’’ into the search engine window. It showed knock-off 

handbags, knock-off UGGs, knock-off Coach handbags, knock-off 

shoes, knock-off watches, and knock-off sunglasses, among others. 

255 

*The information referred to was not received by the Subcommittee at the time this hearing 

was printed. 

Now, all I typed in was ‘‘knock-off.’’ I didn’t type in anything else, 

and that is the list that came up. These weren’t words that I typed. 

It is what your autofill automatically filled in. 

Mr. Chairman, I would like to ask unanimous consent to admit 

this screen shot into the record. 

Mr. GOODLATTE. Without objection.* 

Ms. WASSERMAN SCHULTZ. And then we searched the word ‘‘fake’’ 

and got similar results. Fake Rolexes and fake Louis Vuitton 

purses. 

Now, I realize—and from our conversation—fake can be attached 

to a lot of different kinds of things. As we discussed in my office, 

‘‘knock-off’’ doesn’t really conjure up anything other than trying to 

steal something that is someone else’s intellectual property. And I 

know you referenced that they sell knock-off dresses and other 

kinds of products in Nordstrom’s and Macy’s. It would be very simple to simply have your autofill put those search terms in after 

knock-off if that is really what someone is searching for. But instead, your autofill brings up things that are not appropriate and 

are, in fact, facilitating illegal content and illegal products. 

Now, I had my staff perform—this was a month ago that we had 

this conversation. I had my staff perform the same test yesterday, 

and they got the same results as they did before I shared these 

concerns with you a month ago. So nothing has changed since we 

talked. And I am concerned that your autocomplete feature continues to suggest that people visit websites with pirated content, 

that Google enables and facilitates theft by suggesting words that 

people haven’t even typed in yet. 

And I want to suggest to you, Mr. Walker, the word ‘‘knock-off,’’ 

as I just said, is probably a word you don’t need to get consensus 

on from the Nation’s designers of purses, handbags, watches, shoes, 

and furry boots. It is probably okay to eliminate those words after 

the word ‘‘knockoff.’’ What other meaning is there for the word 

‘‘knock-off’’ than a fake product that is meant to be passed off as 

the real thing? Couldn’t you instead redirect that traffic to legitimate sites? 

Now, Chairman Goodlatte brought up Taylor Swift earlier. Way 

back in 2008, Mr. Walker, I sat down with some of your colleagues. 

Several of them are here today. And way back then, I showed them 

screen shots of unauthorized Hannah Montana songs on Googlehosted blogger sites with Google’s ads on them on top of that. We 

talked about Google’s obligations under the DMCA and we asked 

for you to help rightsholders by designing a product that would 

help them identify infringing content and pull it down more quickly. You said you would try to work with us, but that was 3 years 

ago. I continue to hear from the rights community that it was taking too long for Google to pull down pirated content. 

So a year later, in November 2009, I facilitated a meeting between your lobbyist and RIAA President Cary Sherman. In that 

meeting, Google said you would try again to develop a product cooperatively. That was 2 years ago. Again, no real impact. 

256 

In May 2010, Google sent Rick Klau to meet with my staff, and 

I was so excited by what I believed was finally a new attitude at 

Google that I actually drafted a letter commending you for your 

leadership and your willingness to address these issues. Mr. Chairman, if I can ask that—well, is there a Chairman? [Laughter.] 

If I can ask unanimous consent to admit this into the record. 

Sorry. 

Mr. GOODLATTE. Yes, Virginia, there is a Chairman. [Laughter.] 

Ms. WASSERMAN SCHULTZ. Thank you. 

Mr. GOODLATTE. Without objection, so ordered. 

[The information referred to follows:] 

257 


65186CC-1.eps

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Chairman Bob Goodlatt. 

Subcommittee on Intellectual Property, 

April 13,2011 

Competition and the Internet House Judiciary Committee 

Committee on the Judiciary 

8-352 Rayburn House Office Building 

Washington, D.C. 20515 

Dear Chairman Goodlatte: 

Thank you for convening the Wednesday, April 6 hearing on "Promoting Investment and Protecting 

Commerce Online: Legitimate Sites v. Parasites." I share your frustration with the ease with which 

you conducted a Google search to find "free Taylor Swift MP3s" and welcomed your saying that you 

would "do the same search in a week, a month, three months, six months" to see if there is any change. 

I presented similar search results to Goog1e representatives in 2008 and again in 2009 and, therefore, 

believe that an ongoing assessment by the subcommittee is warranted and necessary. I believe 

members of the subcommittee from both sides of the aisle would agree that we need to follow the 

implementation of the promises made during Mr, Walker's testimony, 

Mr. Chairman, I suggest that as part of the subcommittee's ongoing study that we also ask rights 

holders to provide evidence of the speed with which Google responds to DMCA take down notices. 

Mr. Walker's testimony states that, "the critical foundation for [Google's] anti-piracy efforts remains 

the DMCA" and that, "through the DMCA, Congress established a notice and takedown process that 

provides copyright owners expeditious recourse when the discover infringement online .. ." Section 17 

USC SI2(c)(I)(C) requires that online service providers respond "expeditiously" to remove or disable 

access to, the infringing material. 

As I mentioned during the hearing, I am told by many copyright owners that Google often takes over a 

week to remove infringing material after it receives notice and was glad to read in the testimony that 

Google is, "designing new tools that will enable us to act on reliable copyright takedown requests 

within 24 hours." 

I suggest that the subcommittee ask both rights holders and Google to track the process and timeliness 

of DMCA take-downs and allegations that something violates Google's terms of service involving its 

search engine, Google Blogspot and Android Apps. 
258 

Ms. WASSERMAN SCHULTZ. Thank you. 

And I realize that my time has run out. If I can ask unanimous 

consent for just a couple of extra minutes, Mr. Chairman. I am 

wrapping up. 

That was a year ago. But I have learned since then that there 

still has been very little improvement on notice and takedown 

times. According to the IFPI, for the month of February 2011, the 

latest month for which they have records, 46 percent of the 


65186CC-2.eps
259 

blogspot infringement notices sent to Google remained active for 

longer than 7 days. 

So, Mr. Chairman, would it be possible to include notice and 

takedown times as part of your investigation? Chairman Goodlatte? 

Mr. GOODLATTE. Yes. The answer is yes. 

Ms. WASSERMAN SCHULTZ. That would be great. 

Mr. Walker, you really have an obligation to take those down 

within 24 hours. You know that you do. We have discussed it. But 

for a blogger in February, almost half were still up after a week. 

There really isn’t a question here, Mr. Walker. You are Google. You 

helped overthrow the head of an entire country in a weekend. I 

mean, really, you are Google. Okay? So really, to suggest that this 

is difficult, too difficult for Google to accomplish, it seems to me 

that it is more expression of a lack of will, and I think that is unacceptable. I know that you say your heart is in it. Prove to use that 

you want to go beyond the boundaries that the law requires you 

to do because that is the right thing to do. Short of that, you are 

essentially promoting trafficking of stolen property, and that is just 

unacceptable. 

Thank you, Mr. Chairman. 

Ms. LOFGREN. Will the gentlelady yield? 

Ms. WASSERMAN SCHULTZ. Oh, I would be happy to yield. 

Ms. LOFGREN. As you were talking, I just went on my little android and typed in ‘‘knock-off Coach purses,’’ for example, on 

Google search. The first one, if you go to it, there is a site from ICE 

saying it has been taken down. The second one, if you go to it, the 

site is not found. And the third one is how to spot a fake Coach 

bag. So I think we can get overwrought here. The World Wide Web 

is a great big place, and we need to make efforts to get these counterfeit goods taken down. 

Ms. WASSERMAN SCHULTZ. Reclaiming my time. I don’t really 

have any more. 

Mr. GOODLATTE. The gentlewoman’s time has expired, and I 

think it would be only fair to allow Mr. Walker to respond to both 

comments. 

Ms. WASSERMAN SCHULTZ. Thank you very much. 

Mr. GOODLATTE. Mr. Walker is recognized to respond, and then 

we will move on to the next Members of the Committee. 

Mr. WALKER. Thank you very much, Mr. Chairman. I will look 

forward to addressing both of those points. Thank you. 

And congratulations, Congresswoman, on your appointment yesterday. 

Let me do it in reverse order, if I can, because the most important thing to me and to us is that you do believe and recognize that 

we are actually making progress here. 

Over the last 6 months or so, we have announced commitments 

to this 24-hour turnaround time. It is about to be unveiled in the 

next week or 2. We actually have it up and running now in a test 

mode, and that goes to both copyright and the counterfeiting materials that we have talked about. So that is a dramatic change and 

streamlining with the sort of key tools that we have been able to 

implement. There is engineering work there and there is also 

partnering work there with the key companies we are working 

with. 

260 

Beyond that, in the last month or so, we have unveiled a Web 

tool, a Web form that goes across many of our products because one 

of the problems we were having was that we were getting so many 

low quality notices from people who didn’t understand copyright. In 

some cases things were abusive, meaning one competitor was taking down another competitor’s materials, fans of one football team 

were trying to take down the websites or links on another football 

team’s listings using the DMCA. These are the kinds of things we 

need to sort out. The Web tool replaces a lot of the old paper and 

faxes and emails we were getting with a more standardized process. 

And as a result of that, the good news is it is much easier for 

rights owners to be able to file material. The bad news is we have 

had blip in terms of being able to respond as quickly as we would 

like to, but we are looking forward to getting those response times 

down as we go forward. And that is above and beyond the 24-hour 

commitments we have talked about with the express tools. 

So I think we are seeing progress. I recognize it has been a continuing conversation with you and your office. But judge us on— 

as we are going forward, I think we are making really material 

progress. 

And to Congresswoman Lofgren’s earlier comment, we spent a lot 

of time working with the content industry on this. I have talked 

to most of the general counsels of most of the MPAA and RIAA and 

their trade association. We understand where they are coming 

from. While there may always be some difference with regard to 

scope of fair use and these sorts of issues, there is no reason for 

grit in the system to be slowing down the operation of the DMCA, 

and we are trying to really make sure it is an efficient tool for everybody. 

Ms. WASSERMAN SCHULTZ. Mr. Chairman, I realize I am yielding 

back time I don’t have, but I do appreciate your willingness and expression that there is will. And I will just point out that when I 

did type in ‘‘knock-off,’’ it was simply ‘‘knock-off’’ and those other 

words came up in your autofill. 

Mr. GOODLATTE. This discussion is going to go on for quite a 

while. 

Ms. WASSERMAN SCHULTZ. Thank you very much. I yield back 

the time I don’t have. 

Mr. GOODLATTE. I have been very generous. 

And now we will recognize the gentlewoman from California, Ms. 

Sa ́nchez. 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. I want to begin by 

thanking Mr. Morton for the initiative you have shown in being 

proactive in going after infringers. I do have some questions for you 

that I will come back to, but I want to start with Mr. Walker. 

Mr. Walker, I want to address your AdSense program, if I may. 

In your written testimony, you stated that you respond swiftly 

when notified by rightsholders that an ad is being placed on an infringing site. And I am just curious to know on average how long 

does it take Google to comply with a DMCA notice. 

Mr. WALKER. It varies dramatically, Congresswoman, based on 

the different products and the different nature of the request. We 

261 

get requests in foreign languages, paper, they are incomplete, et 

cetera. 

Ms. SA ́ NCHEZ. Ball park figure? 

Mr. WALKER. Our gold standard right now is YouTube where we 

are typically able to process DMCA requests in a matter of minutes, and we have a very sophisticated system. That is above and 

beyond the content ID system that we have already talked about 

that automates the process for rightsholders. 

With regard to other products, our goal is to move that within 

24 hours for people able to use our sort of advanced and sophisticated tools. There will always be some cases that take longer, in 

some cases days, as we go back and forth with the rightsholders 

to clarify or correct defective DMCA notices, DMCA notices that 

aren’t really about copyright, for example, and the like. 

Ms. SA ́ NCHEZ. Okay. So there really isn’t a typical time that you 

can say a ball park figure that it takes? 

Mr. WALKER. Unfortunately, it is very different for different 

products. 

Ms. SA ́ NCHEZ. Okay. Let us start this way then. What is the 

shortest length of time it takes Google to respond? 

Mr. WALKER. I would say it is the YouTube example, a matter 

of minutes. 

Ms. SA ́ NCHEZ. And the longest amount of time? 

Mr. WALKER. Well, some notices—— 

Ms. SA ́ NCHEZ. I am just trying to get a scope here of time. 

Mr. WALKER. I don’t mean to be evasive. Many notices are actually never processed because they are incorrect. 

Ms. SA ́ NCHEZ. But for a correct notice. Let’s qualify that and say 

for a correct notice. What is the longest amount of time it has 

taken? 

Mr. WALKER. You know, I think it is certainly in days and might 

even be in weeks depending on the nature of the notice, if it is in 

a foreign language, if it is submitted in a way that is difficult for 

us to process or we have questions. 

Ms. SA ́ NCHEZ. Let’s leave that topic 

Let me ask you what happens to the ad revenue that was generated by that site while it was hosting infringing material. Does 

the ad revenue go to the rightsholder? 

Mr. WALKER. There are different scenarios with regard to our 

AdSense product which is the product that puts ads up against 

publisher websites and our AdWords product which are ads on 

Google essentially or hosted ads that go out. But when we discover 

somebody who is infringing, we stop payments to them if they are 

on the publisher side of it, and we refund money to the advertisers 

if money has been paid out. 

Ms. SA ́ NCHEZ. But none of that money goes to the rightsholder 

who is being infringed upon. 

Mr. WALKER. It is in many cases difficult for us to determine who 

the rightsholder is in some of these situations. In the case of music, 

as you know, there are labels and publishers and artists. 

Ms. SA ́ NCHEZ. Sure. So somebody is making money off of these 

sites, but it is almost like the rightsholder is—it is sort of a double 

whammy. They are being infringed upon by somebody else who is 

using their content in a way that isn’t authorized, and then someVerDate Aug 31 2005 11:30 Jan 02, 2013 Jkt 000000 PO 00000 Frm 00269 Fmt 6601 Sfmt 6601 H:\WORK\IP\COMBINE\65186.001 HJUD1 PsN: 65186
262 

body who is selling ad revenue then on those sites is also making 

money and that is not going to the rightsholder. 

Mr. WALKER. I want to be clear. We are not making money really 

because we are refunding the money back to the advertiser when 

we discover that the site that the ad was appearing on was infringing. So it is not as though Google is holding that money. 

Ms. SA ́ NCHEZ. Well, you and I will have to disagree on whether 

or not there is profit to be made in advertising on infringing sites. 

I want to go back to Mr. Morton and your public education efforts. Now, you mentioned a successful symposium that you had 

last year and you talked about one that is also planned for this 

year. And the question that I have for you—and I am not trying 

to be impertinent here, but it seems like symposiums, which are a 

great idea—it is sort of like preaching to the converted because the 

folks that are attending those symposiums are probably the most 

informed or at least the most aware of the problem of IP theft. And 

I am talking specifically about industry leaders, Government officials, and congressional staffs. And reinforcing information to those 

folks may be beneficial, but if we are talking about the vast scope 

of IP theft, I would think that probably education efforts are probably better aimed toward a younger audience and the people who 

are actually doing the infringing. 

So I want to know if you are taking any steps to inform, say, 

teenage kids who are looking for the new album of their favorite 

artist or a college student who is looking to watch a movie online 

or that type of crowd. Are there any efforts that you are dedicating 

toward making them more aware of the issue? 

Mr. MORTON. It is an excellent question. The Government has 

not typically been expert in the public education arena in this area, 

but it is exactly where we need to be. 

So one of the things that we have been thinking about is the seizure banners that we use right now are static, and they just say 

we have seized this site. One of the things we have been contemplating is when we actually forfeit a site that was dedicated to infringing or counterfeiting, can we use the fact that so many people 

are going to see our banners. I mean, they have become a sort of 

unanticipated Internet phenomenon. Can we use those as an educational opportunity and instead of them just being static, have a 

public service announcement? 

The other thing that we need to do and work on is working with 

the rightsholders so that we have—let’s take the entertainment industry—updated public service announcements in the movie or 

maybe it is on iTunes or using the platforms that already exist that 

people are going to that are legitimate to help preach the gospel 

as it were. So we are very much focused on that. It is a need. It 

is a work in progress. 

Ms. SA ́ NCHEZ. Great. Thank you. 

And I thank the Chairman and I yield back. 

Mr. GOODLATTE. I thank the gentlewoman. 

The gentlewoman from California, Ms. Waters, is recognized for 

5 minutes. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

And to our Ranking Member, all of the Members of this Committee, this is a fascinating discussion and one that is very much 

263 

needed, and I am really appreciative for the opportunity to engage 

our folks who have come here today to help us to learn about this 

problem of rogue sites and infringers, et cetera. 

And while I thank everyone, I am particularly drawn to Ms. 

Christine Jones of Go Daddy Group who is so confident about what 

she is attempting to do and your description of the volunteer effort 

that you are attempting to get everyone involved in. 

I notice in your testimony, I think you said you had identified 

36,000 infringers or websites and that you told Google about them, 

and you expected them to take them down. Is that what you 

meant, or did you mean something else that you didn’t have time 

to discuss about what you expected of Google? Would you elaborate 

a bit on that? 

Ms. JONES. Sure. In 2010, we disabled 36,000 websites that were 

engaged in selling drugs illegally online. We worked together with 

the Intellectual Property Enforcement Coordinator from the White 

House and Google who has co-led this effort with me the entire 

way to form a group that would address those sorts of things. So 

if I suggested that I gave them a list that they did not act on, I 

misspoke and let’s correct the record on that. 

Ms. WATERS. Okay. 

Ms. JONES. What I am saying is that is exactly the sort of thing 

that voluntary cooperative group is designed to address, and I 

think it can be done effectively and successfully in other contexts 

as well. 

Ms. WATERS. Is there some way that we could be helpful 

incentivizing everyone so that there is more cooperation and that 

people are looking out for each other? Is there something that we 

can do legislatively? 

Ms. JONES. Well, one of the things that we have heard from some 

of our brethren in the industry is that, look, we are not as big as 

Google and we are not as big as Go Daddy. You guys have scale. 

You have resources to effort against these problems. We don’t. 

Some registrars have 10 employees in the entire company. We have 

thousands. So one of the things that they have specifically asked 

for—and I think I can speak on their behalf here—is help them 

know when a site is engaged in illicit activity. Don’t leave it to 

them to decide. And frankly, we would like to have that too. It is 

just that we might have some experts on our staff who have some 

knowledge and some judgment. So I think help them know. Don’t 

threaten them with a lawsuit if they take action against a website. 

Give them a safe harbor if they do what they are supposed to do 

and then provide a consequence for the people that refuse to do it. 

I mean, I think we have to keep in mind here we are vilifying 

Google because they are big, and they have the ability to influence 

a whole lot of what happens on the Internet. And some people vilify 

us because we are big and we have the most domain names under 

management of anybody in the whole world. But we don’t engage 

in infringing other people’s intellectual property. Right? So I think 

you have to be a little careful about throwing the spears against 

the people who are trying to make it better. And that is my one 

single defense of Mr. Walker today. [Laughter.] 

Mr. WALKER. And for the record, Mr. Chairman, I don’t feel particularly vilified here. 

264 

Ms. WATERS. Well, let me turn to Mr. Walker. I am glad you 

don’t feel that you have been vilified. Perhaps you don’t know it 

when you see it. [Laughter.] 

But I would like to know what you think you can do better. You 

obviously have identified ways that you have tried and the complications of that. What else can you do? 

Mr. WALKER. I think we can continue to work with the content 

industry to make the process faster. We have a common goal on 

that and we are in the late stages of actually being able to deliver 

in a big way on that. And that has been an initiative that we announced in December and has been universally applauded, I think, 

by the folks on that side of the aisle. 

Also as we have said, we are open to working on the advertising 

side, which is really the right complement to the DMCA process, 

to try and cut off advertisements to sites that courts have adjudicated to be illegal essentially and dedicated to infringing content. 

That makes sense to us as a complement. 

We are also doing a lot of things to try and make life easier for 

rightsholders. We have hundreds of people working on this problem 

now. We spend, as I have told you, tens of millions of dollars to 

try and address it in a better way. We are trying to take the friction out of the system. And there are a lot of ways of doing that. 

Having a simplified Web form is one. Faster turnaround time is another. Working on the advertising system is a third. 

Ms. WATERS. Thank you. 

I yield back the balance of my time. 

Mr. GOODLATTE. I thank the gentlewoman. 

The gentlewoman from Texas, Ms. Jackson Lee, is recognized for 

5 minutes. 

Ms. JACKSON LEE. Let me thank you very much, and I think you 

can just look at the activity on the dais of Members coming in and 

out that this is an important hearing. And Mr. Chairman and 

Ranking Member, I thank you for holding this hearing. Many of us 

are in a number of different hearings, and so we are very appreciative of this particular meeting. 

I would like to focus on some of the issues that you have addressed but allow me the benefit of just trying to delve in it further. 

I don’t take ownership of this, but what I will take ownership of 

is the very interesting and important byline here, ‘‘Fight Online 

Theft.’’ And I think each and every witness here, from the Government on, would say that you are unanimously in support of fighting online theft. I think I need yeses so it will be audible. 

Ms. JONES. Yes, Congresswoman. 

Mr. WALKER. Yes. 

Mr. ABRAMS. Yes. 

Mr. MORTON. Yes. 

Ms. JACKSON LEE. In the course of that, the documentation notes 

2.5 million jobs lost to counterfeiting, $135 billion total global sales 

of counterfeit goods—I have seen it as I have traveled—$75 billion, 

cost of global piracy of copyright, $1.77 trillion by 2015. I think 

that is an enormous dent in the genius of America and the creation 

of jobs. I really think we are talking about jobs. 

265 

Let me just go right to Google because I frankly think it is important that you are here. I feel that there is going to be legislation, but it will not be punitive and it should not be punitive. It 

should be collaborative, and I encourage the collaborative process. 

I will use the term ‘‘web crawling’’ to identify—and I want to 

know the difficulty that Google would have in identifying and 

working with better site placement and, as well, the taking down. 

You are committed, know that there is a job issue here. But I want 

you to know there is a genius issue here. We are proud of Google. 

We are proud of all of the witnesses that are here as it relates to 

their input into this economy, into the new job creator of the 21st 

century into the 22nd century. We are discovering something every 

single minute. The better discoveries we make—or as my son explains to me, the development side of the business and, if you will, 

the programmer or the person who is coming up with the ideas— 

the better off we are. 

But can you tell me what would be the challenge for a greater 

engagement in the work of taking these sites down? 

Mr. WALKER. Sure. Congresswoman, thank you. 

The key issue is the need for collaboration and identification of 

who the bad guys are, sorting out the baby from the bath water. 

We already do a lot of that on the DMCA side. We hear from the 

content industry. 

Ms. JACKSON LEE. So do you have a team? Do you have a department, a section that deals with that? 

Mr. WALKER. Yes, we do. 

Ms. JACKSON LEE. That has the expertise. 

Mr. WALKER. Yes. 

Ms. JACKSON LEE. So those individuals could give us input into 

the crafting of the legislation, to be honest with you. 

Mr. WALKER. No, absolutely, and we would be delighted to work 

with both this Subcommittee and the folks over at the Senate to 

try and make sure that we are coming up with a refined definition 

of who the bad guys really are. 

Ms. JACKSON LEE. So I get to other witnesses, just quickly what 

do they do in the pulldown? You are pulling down now. What can 

you do better to pull it down even more? 

Mr. WALKER. Sure. We can do it faster. We can do it with less 

friction. We can make it easier for rightsholders, and we are working on all three of those things. 

Ms. JACKSON LEE. Mr. Morton, you need help. Your staff is 

dwarfed by the employees that are in these companies that are sitting with you, but behind you I know are people in different industries. Musicians are being impacted. People with unique, inventive 

talents—their products are being taken. In the old days, you would 

go to a certain country and find people’s pocketbooks were labeled 

and weren’t the correct pocketbooks that you thought you were 

purchasing. 

What tools do you need? I think you need an expanded team in 

ICE, to be frank with you, that is dedicated solely to this issue. But 

give us a point that we can hang our hats on. 

Mr. MORTON. A couple of things. Just a real focus on additional 

tools for foreign actors where there really isn’t much based here in 

the United States, particularly either the defendants or the server. 

266 

Help from Congress understanding that the challenge here is so 

much broader than simply the traditional entertainment industry. 

This has gotten to a point where it is an assault on U.S. industry. 

Ms. JACKSON LEE. So the foreign element is something we need 

to include in the legislation and give you tools to reach. Is that 

what I am understanding? 

Mr. MORTON. It is really a collaborative one. It is not just Government. It is again allowing Government to work with the people 

to my left and to encourage the people to my left to work on this 

in a collaborative way. They can do so much more on a grander 

scale than we do. We are a specialized tool in the toolbox. It is important to have us, but we are not the end all and be all. 

Ms. JACKSON LEE. Let me just quickly, Mr. Chairman, if I could. 

Mr. Abrams, the First Amendment. This whole question of 

cyberlocking, this whole question of these parasite sites, your leadership on the First Amendment. And I am thinking about people 

stealing people’s ideas. We have got to do a statutory fix I believe. 

Is there a comment that you want to expand on? 

Mr. ABRAMS. All I would say is that I agree with you that you 

need to do something which involves additional methods, that enforcement of the copyright law that already exists. We have a copyright law. We are talking about entities that are already routinely 

and increasingly violating our copyright law by taking, stealing intellectual property that doesn’t belong to them. And I think one of 

the main things that you can do which would be constitutional is 

to come up with a definition, difficult as it is, but a definition of 

a site or a domain that by its nature is so overwhelmingly dedicated to copyright infringement that a court can enter an order so 

designating it and that that order can be used and is available to 

entities such as, but not limited to, Google but the whole range of 

intermediaries in this area who, once they have it, can at least not 

be in the position of having to decide for themselves on an ad hoc 

basis all the time whether this is too much taking or that is too 

much taking. If we can get a judge, if we can get a magistrate to 

play that role—and I think a properly drafted statute can—I think 

that would be a very, very big step. 

Mr. GOODLATTE. And with that, the time of the gentlewoman has 

expired. 

Ms. JACKSON LEE. I thank the Chairman. 

Mr. GOODLATTE. Mr. Abrams’ comments are a good note to end 

the hearing on with one exception. We are going to submit many 

questions to the panel for you to answer in writing and any other 

Members who wish to do so will have an opportunity to do so. 

Mr. Watt wants to pose one of those questions which you can answer in writing, but he wants to pose it verbally. So we are going 

to yield to him for that purpose and then we will conclude the hearing. 

Mr. WATT. I thank the Chairman for providing me this opportunity. I do this not to get a response today. It is addressed to Mr. 

Walker and Ms. Jones, but it is also addressed to people in the audience who are invested in this issue in various ways. 

It has occurred to me that one of the areas we are going to have 

to look more aggressively at is this safe harbor notion. I am not 

sure I understand how it is being applied, but it seems to me that 

267 

one possibility might be to impose some of the greater obligation 

and risk on the people who are requesting these takedowns, rather 

than just you having potential liability. The people who are best 

positioned to identify the culprits are the owners of these intellectual property, songs, materials that are being counterfeited. And 

when they request you to take something down, what I need to 

know is there some viable way to structure something that would 

put them at risk, in addition to putting you at risk, as opposed to 

just providing an absolute safe harbor here because safe harbors, 

it seems to me, are subject to being more abused than if somebody 

has some skin in the game, so to speak. 

Ms. LOFGREN. Would the gentleman yield? 

Mr. WATT. Well, I am not sure the Chairman is going to let me 

yield. 

Ms. LOFGREN. Just on the point. One of the things we worried 

about when we wrote the DMCA—at least I worried about and expressed at the time—was that when you have notice and takedown 

request, who is going to stand up for the First Amendment. If it 

is somebody who has a different agenda, you know, the smartest 

thing for the person who it is directed to is just to comply. I think 

that gets to the issue you are talking about. 

Mr. WATT. All I am trying to do is get all of these issues out. So 

I would welcome written comments from anybody on this whole notion of how the safe harbor works, whether it could work more effectively if we put some additional incentives in for people to put 

something on the line when they assert that they ought to be given 

a safe harbor. 

And with that, Mr. Chairman—my, you have changed. [Laughter.] 

Instantly you changed. 

With that, I yield back. 

Mr. MARINO [presiding]. And I am not going to touch that statement. 

Thank you, Mr. Watt. 

Mr. MARINO. I think I am the one left that has some questions, 

and I apologize for running in and out of here, but it is one of those 

days where several Committees are going at the same time. Actually I will be brief. 

First, there was a statement made earlier, and I think it was by 

Attorney Jones, and Attorney Walker responded to it to a certain 

extent on giving notice. And I liked that idea of people within the 

industry giving each other notice of rogue websites and getting 

them shut down. 

Does anyone on the panel—and I will start with you, Mr. Walker—have any problem with that? 

Mr. WALKER. The challenge, Mr. Chairman, is the verification of 

what is legitimate and what is illegitimate. Some of the bills that 

are being talked about here would have appropriate due process 

and a court review, and that is, I think, where we are most comfortable before we are talking about something like taking down 

somebody’s website or cutting off access to their services or advertising. 

There have been other examples in the pharma case and the like 

where there are a limited number of authorized websites out there. 

268 

You know, there may be only 20 people who are allowed to buy ads 

for pharmaceuticals. That is somewhat different than in the content industry where there are a million different people. Everybody 

who posts something on YouTube, including their home movies— 

that is a copyrighted act, copyrighted work. So we have to be a little careful about that. 

That said, we are delighted to work with the rest of the industry 

to share information. We have worked, in fact, with ICE. We have 

somebody down at the IPR Center today helping them get up to 

speed on some of the technology issues at play here, and we are 

delighted to do that. 

Mr. MARINO. Does anyone else care to respond to that? 

Ms. JONES. I will briefly. I mean, I suggested it. We like getting 

information from people and we like sharing information with 

other people. 

I think it might be slightly disingenuous to suggest that somebody can’t verify that a pharmacy is selling drugs without a prescription. That is a pretty easy case. I will agree that it is much 

more difficult to determine a genuine Louis Vuitton bag or a song 

recording that has been authorized by the production company, the 

distributor, or the writer, and so on and so forth. So the issue is 

very complicated, but the sharing of information is really, really 

important. 

Mr. MARINO. Attorney Walker, you noted that defining a rogue 

site is not simple. Would you be able to come up with at this moment a definition of what you would propose? 

Mr. WALKER. Absolutely, at least at a level of principle. Because 

we thought the comment may come up, forgive me as I refer to my 

notes here. 

Mr. MARINO. Sure. 

Mr. WALKER. I think we are in the process of actually sharing 

specific statutory language we propose, but at a high level, we 

would say there are four key principles to be looked at. One is that 

the site is knowingly violating copyright law. Second is that it contains complete copies of works or counterfeit goods. Third is it has 

a commercial purpose. And four is that it refuses to respond when 

notified by rights owners. Within that construct, I think we are 

comfortable with a notion of a site that is dedicated to infringement. 

Mr. MARINO. Would you agree with me—and see if my research 

is right. You were an Assistant United States Attorney. 

Mr. WALKER. That is correct. 

Mr. MARINO. And I was a United States Attorney. Many times 

we have prosecuted people for omission, turning a blind eye. A scenario I could use is when I made a drug arrest and went into a 

crack house, and there were several individuals who were not particularly selling the drugs but they were facilitating the dealers 

and knew that it was going on. Would you agree with me that 

those individuals could be prosecuted for aiding and abetting? 

Mr. WALKER. So long as there is a finding of specific knowledge 

and intent to have the transaction proceed, yes, sir. 

Mr. MARINO. Sure. I would think a specific knowledge is here I 

have the cocaine in my pocket and I am going to give it to the guy 

at the door so he can sell it. So I think we get over that hurdle. 

269 

But not equating the industry with that, but don’t you think 

there could be a situation where it may appear that industry is 

turning an eye and simply saying because of cost or other reasons, 

this is just too much for us to address? 

Mr. WALKER. I want to be very clear that we are not saying that. 

I recognize it is a growing problem, and as I say, it is a frustration 

for us, as it is for the content industry. When the bad guys’ sites 

proliferate or change their identity or Congressman Issa earlier referred to a site that changed its name to avoid detection, we have 

that problem too. And it is important to not confuse the message 

with the messenger. It is a difficult problem and we work on it 

hard every day. 

Mr. MARINO. And please continue. 

One more question I have for the Director. How would enforcement be affected if prior notice of seizure blocking orders was given 

to parasites before they were shut down, and how easy is it for 

websites to change domain names or redirect traffic to other 

websites? 

Mr. MORTON. The answer to your question depends on whether 

or not we are in a civil or criminal context. I think the Government’s view in the criminal context would be that we shouldn’t 

alter basic criminal procedure which doesn’t provide notice in most 

instances to Government search warrants or arrests prior, obviously, to the execution of the search or the arrest. 

In the civil context, it is a different story, and I think there is 

plenty of room for prior notice. That is a common hallmark of civil 

enforcement, and I don’t see why it would be any different than it 

is in other areas of the law. 

Mr. MARINO. Anyone else wish to make a comment pursuant to 

my questions to the Director? 

[No response.] 

Mr. MARINO. No? Well, I think that concludes our hearing today. 

I would like to thank our witnesses for their testimony, and I really 

appreciate your being here. I certainly want to thank my colleagues 

for the in-depth questions. 

And without objection, all Members will have 5 legislative days 

to submit to the Chair additional written questions which we will 

forward to the witnesses and ask them to respond to as promptly 

as possible so their answers may be part of the record. 

Without objection, all Members will have 5 legislative days to 

submit additional materials for inclusion in the record. 

With that, I again thank the witnesses. 

This hearing is adjourned. 

[Whereupon, at 2 p.m., the Subcommittee was adjourned.] 

(271) 

SUBMISSIONS FOR THE RECORD 

Prepared Statement of the Honorable Darrell Issa, a Representative in 

Congress from the State of California, and Member, Subcommittee on Intellectual Property, Competition, and the Internet 


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There are many different ways that legitimate web-based 

companies have unintentionally supported the efforts of 

counterfeiters and online pirates; whether through providing them 

with ad based revenue, or facilitating financial transactions to theIr 

overseas locations. 

I look fOrNard to hearing recommendations from our panel of 

witnesses today as to how we can deal with illegitimate online 

sites versus legitimate ones. It is my hope that some thoughtful 

ideas will come from this discussion that can be incorporated into 

a balanced piece of legislation. 

Whatever actions we end up taking on this important issue we 

must make sure that they do not tread upon individual's legitimate 

usage of the internet. 

Thank you Mr. Chairman and I yield back. 
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Congressman Tim Griffin (AR-02) 

Statement for the Record 

Subcommittee on Intellectual Property, Competition, and the Internet 

"Promoting investment and Protecting Commerce Online: 

Legitimate Sites v. Parasites, Pari II" 

April 7, 20i1 

I conmlend Chairman Bob Goodlatte for convening this important hearing 

as Congress reviews past efforts to enforce copyright law and considers legislation 

to protect the intellectual property rights of our nation's innovators. The need for 

this hearing and for legislation to address copyright infringement on the lntemet is 

clear: copyright infringement costs American jobs, and creators have and will 

continue to lose billions of dollars every year unless Congress acts. The Intemet is 

a dynamic system, and Congress should recognize tlus fact by passing adaptive 

legislation that protects copyright holders in the digital age. 

US. Immigration and Customs Enforcement (ICE) has taken a positive step 

toward stronger copyright enforcement by implementing "Operation in Our Sites." 

This first-of-its-kind program protects American jobs by providing aggressive 

enforcement of copyright law on the Intemet. I applaud the leadership ofICE 

Director John Morton and look forward to the continued success ofthis program. 

Copyright protection is first and foremost a jobs issue. From the sale of 

counterfeit software to CDs to DVDs, and pharmaceuticals, copyright infringement 

lmdemunes job growth and weakens our Nation's constitutionally guaranteed 

respect for intellectual property rights. As the Intemet continues to reinvent itself, 

Congress is duty-bound to pass legislation that keeps current our ability to take 

down rogue sites and to protect copyright law in America. 1 stand ready to work 

with my colleagues on the Committee to pass legislation that addresses this urgent 

need. 
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The Register of C..opyrights of the United Slalt!s of America 

l;aited Statt'~ CopyrighT Office Hll1nucpenddI({' Avenue Sr \V,lshiugtpn, DC l(i"i59-600n . (~()).} 707 K3S0 

April I, 2011 

The Honorable Zoe Lofgren 

U.S. House of Representatives 

140 I Longworth House Office Building 

Washington, D.C. 20515 

Re: Hearing of the Subcommittee on Intellectual Property, Competition, and the Internet on 

'"Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites, Part I" 

Dear Representative Lofgren: 

During the Subcommittee hearing, you requested information regarding the Copyright 

Office's discussions with stakeholders about the rogue website issue. As I described during my 

testimony, our legal and policy staff are immersed in an ongoing series of meetings with a large 

number of diverse stakeholders. To date, we have had discussions with content owners, 

Internet service providers, payment processors, companies that provide search engines, public 

interest groups, and various additional players in the Internet ecosystem. We are continuing 

these meetings to further expand our knowledge of the legal and technical considerations 

relevant to rogue websites and to support the work of the Subcommittee. 

I have enclosed here a list ofthe fifty-four stakeholders we have seen thus far in thirtyseven meetings. Thank you for your request and please do not hesitate to contact us if you 

need additional information. 

Respectfully submitted, 

?7~~~~ Maria A. Pallante 

Acting Register of Copyrights 

Enclosure 

cc: Hon. Robert Goodlatte 

Chairman, House Judiciary Subcommittee 

on Intellectual Property, Competition, and the Internet 

Hon. Mel Watt 

Ranking Member, House Judiciary Subcommittee 

on Intellectual Property, Competition, and the Internet 
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u.s. Copyright Office 

Rogue Websites Stakeholder Meetings 

Aprilt,2011 

American Express 

2 American Federation of Television and Radio Artists (AFTRA) 

3 American Society of Composers, Authors, and Publishers (ASCAP) 

4 Association of American Publishers (AAP) 

The Authors Guild, Inc. 

6 Broadcast Music, Inc. (BM I) 

7 Business Software Alliance (BSA) 

Center for Democracy & Technology (CDT) 

9 Computer & Communications Industry Association (CCIA) 

10 Com cast 

11 Directors Guild of America (DGA) 

12 Disney 

13 Doxpara 

14 eBay 

15 Entertainment Software Association (ESA) 

16 Electronic Frontier Foundation (EFF) 

17 Facebook 

18 Federal Communications Commission (FCC) 

19. G2 

20. Go Daddy 

21 Google 

22 information Technology and innovation Foundation (iTiF) 

23 Interactive Advertising Bureau (lAB) 

24 international Alliance of Theatrical Stage Employees (IATSE) 

25 internet Corporation for Assigned Names and Numbers (iCANN) 

26. Major League Baseball (M LB) 

27 MasterCard Worldwide 

28 The McGraw-Hili Companies 

29 Microsoft 

30 Motion Picture Association of America, Inc. (MPAA) 

31 MovieLabs 

32 National Basketball Association (NBA) 

33 National Football League (NFL) 

34 National Music Publishers' Association (NMPA) 

35 NBC Universal 

36 News Corporation 

37 N etCoalition 

38 Paramount Pictures 

39. PayPal 

40 Policy Bandwidth 

41 Public Knowledge 
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42 Recording Industry Association of America (RIAA) 

43 Reed Elsevier and Elsevier 

44 RosettaStone 

45. Screen Actors Guild (SAG) 

46 Sony Music 

47 Software & Information Industry Association (SIIA) 

48 TimeWarner 

49 U.S. Chamber of Commerce 

50 U.S. Immigration and Customs Enforcement (ICE) 

51 Veri Sign 

52 Verizon 

53 Via com 

54 Visa 
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• macmillan 

'Ht n' sIIbmiUf'd b)' Brian Na ~l. , 'rcs ;d ~,,' , Mam,ilian 

1.lollst Subcom",iUu 00 Inlellf cl"all'r OPfrt, ', COmpt l;"O" , Rod the Intern" 

Hu ring on " Promoting ..... 6 Ime'l! and I'rol« ,;" g COOllutrU O"lint: 

l <"giri"'at. Sill'!j Y. P~ .... , iWi, Pa r, 11M 

Wtd"", riay, Allril 6 2011 

Mr. Ch.;m,an;md Member. of the Cun"n;n..,. 

We applilld the wor~ Ih.llhe IQUseJudki:llyCommi n.., ~15 dont 1() pn:~",()lC and protect the 

work or Amenc,"" author!: .nd pobli.h"~ and T appreci .. e thi. opportunity t" ""bmi. wrl1ten 

lesti"",,,y tn lheCommillctl as i( S<.'e~s to addre!<S the critica l probltm ofdi~ al piracy and 

coonll'l'f'ci6Qg. 

Macmillan is 00 .. ofoo, nalion's leading publishers wilh well·known impliols such as SI, 

Martin', Pre.s., F.",u $mUi .. &: Giroux, Henry Hoh, Picador, Tor, Macmillan Audio. SeMmd 

Froeman &. Wonh. i,."licler, and Hayden 1>JcNeil As publilhrn. we create boob. te~lbool.;s . 

and , myriad of digital prooucts and interactive selVkes Ihat contribute direcrl y to oor n~liOfl ' S 

CI,hore, 10 our cducatjonaI5y~tclll . and 10 thc asset base ofinl~HectUli I prO?l!ny lhat is theen)Oinc 

of the American eoonomy. 

0", industry is built upon Ihe CTeBli"e driv~ ofmnily thou~fUld sofili llhOl1i . eduClltOfS and 

technolO!fi s r OJ!ethe;r, "'C are el\,brac;nll the incr«lible opportunity Ih3t le<:lwolollY pre.-;""ts 10 

crtole I"'" • .,{ul new coolenl Iha1 inspires and educales. and 10 ~t hi. cOnlenl;n Ihe hand. of 

",ore re3dcr. and !earners as their reading gQe, digital Ullfof1unately. Ih~ rise- of the new diS".i 

book formars. diwihuti\lll chann~i, and devices Ihal n,ake such i"no"aliOI) possible has also 

broo~t wilh il a st«p the in digilal piracy 

Today, we.be i~'Velhatlheecooomit ecosystem Ihat supI',...ns the Cl'earivc outl'''! of publiiihin8C i. 

de.ol'ly thrt'atel1ed by I compet; ns. illicit economic ",,<>system, OfIe fueled by Iht wholoule Ihen 

of American intellectual pmpeny 

We, like tl' O;ie i~ Ih ~ OInercr(a(ive ;',duslries. loo ~ forward to woni~g wilh Cun~"ess to craft 

~oIulions Ihallake a comprehensive appfOlOch 10 reigning in piracy by cunailing the acti..ilie. of 

rogue website~ 3~d by disrupting their ability to proi;t lfont Ihefl. 

T nt "roblt m hring th e U.S. IJ.ook ""blil ni"l1 In,llIslry 

Allhis very mom<!r1r. a IKrgl! ponion ofMRcmillan '§ catalog of copyrighted books aod t~~tbook,. 

are easily foond !nd f~\y aVlilable for dO"'nload from llnauthooz.-d websit'" all (WeT Iht. 

Imemel n,eM: web<ite:'l. which indude some of the "1(''it heavily traft"tcked ",m~ t.,. in Ihe 

~ISI 1oI#'~\ I""" ~.~ "'"' r""' ,.l .... IIin"'~ ...... O;O", (.~"".""" o;, lMf'"'''-·l .. · ..... \I ft_ ... · \· ............... . 

• 1~~38IIIr",., hoIoM.1II '00'" J 2t2!i7e'fo6e 1 ~lt~~43'&ln I bI.,,_D .. __ I . ... __ 
278 


65186GG-2.eps

macmillan 

world, operate out in the open They carry advertisements from well-known companies, they 

accept major credit cards, and at tirst blush appear perfectly legitimate. And consumers are 

downloading copyrighted books from them by the millions. 

Although the problem of digital piracy is relatively new to the book business, its contours and 

scale have quickly become clear and appear quite familiar to those that have watched the recent 

history of the music and movie businesses 

At Macmillan, we have seen a rapid rise in the availability of our titles on pirate sites 

worldwide. We currently issue well over 3,000 takedown notices every month under the 

provisions of the Digital Millennium Copyright Act and this number is rising. 

In October of20 I 0, the anti-piracy firm Attributor found that there were between 1.5 and 

3 million daily searches online for pirated e-books and that this figure is increasing 50 

percent annually.' 

An earlier study released by Attributor tracked 914 book titles over a three month period 

and found that 9 million individual copies these books had been downloaded from pirate 

sites in just a three month period2 

A study by Verso Digital in January 20 10 found that 28% of eReader owners had used 

file-sharing sites to download free eBooksJ 

A story entitled "Digital Piracy hits the e-book industry" by CNN in January 2010 

tracked best-selling author Dan Brown's latest novel "The Lost Symbol" as it was 

illegally downloaded over 100,000 times on pirate sites within the first few days of its 

release.' 

Not surprisingly, free is a very compelling value proposition And, of course, each pirated 

version online can translate into many lost sales as they are downloaded repeatedly and passed 

around from reader to reader, even accounting for the probability that not every free download 

will equate to a lost sale. 

Making our content available in digital formats is a vital part of our business model, allowing us 

to deliver content to readers when, where, and how they want it. But just as we look to innovate 

using devices such as Barnes & Noble's Nook, Amazon's Kindle, and Apple's iPad, pirates look 

at these new devices as new opportunities to expand their lucrative businesses. We have, in fact, 

seen sharp rise in activity on pirate websites in the year since the introduction of the iPad. We 

have also seen the advent of widely distributed tools that facilitate the removal of anti-piracy 

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macmillan 

protection from our eBooks so that they can be freely distributed. Unfortunately, the opportunity 

to distribute pirated materials will only accelerate as the new platforms proliferate. 

Looking across the sectors of copyright-intensive industries, a dark picture of the future emerges 

for anyone whose livelihood depends on the creation and distribution of books: 

Rogue sites engaged in copyright piracy receive over 53 billion visits a year' 

Nearly one quarter of all Internet traffic worldwide is reportedly associated with 

infringing activity6 

The value of digitally pirated products is as much at $75 billion and appears to be rising 

very rapidly7 

How Books are Being Stolen 

Books are being pirated online today through a wide variety of web sites, each of which presents 

unique challenges. Today, the primary concerns of publishing are the following: 

Cyberlocker sites are currently the venue of choice for book pirates. These personal file 

storage sites are known to host countless individual pirated book files and are easily 

searchable by consumers looking for tree tiles using major search engines. They otler 

little protection for copyrighted works. To attract users and pirated content, these sites 

often offer payments and other incentives in exchange for uploads of content files. Not 

surprisingly, popular copyrighted books wind up being popular downloads on these 

serVlces 

Peer-to-peer (P2P) sites and services play matchmaker for uploaders and downloaders 

who can share tiles directly between using technologies that eliminate the need for a 

central server. Due to the distributed nature of this model, there is no central server. This 

renders the notice and takedown procedure ofthe DMCA oflimited application and 

ineffecti ve. 

Pirate stores are online retailers that offer large collections of infringing eBooks for free 

or at deep discount. Often the works are available on pirate stores before publication, 

which severely damages the potential sale of a book. These sites are among the most 

nefarious infringers since they often appear to be legitimate online retailers, promoting 

products, talcing sales, and carrying advertising. 

~ MarkMonitor, "TraffIC Report: Online Piracy imd Counterfeiting'·, 2011. 

(, Em'isionaL A~1 Estimate of Infrint!ing Use of the Intcmet, ,. 2011 

~ the Global Economic and Soci.al Impacts of Counterfeiting and Pime;-," )011 
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macmillan 

Feeder sites, also known as link sites, are web sites that do not host infringing files, but 

rather provide links that enable downloads trom cyberlocker sites. They exist in order to 

attract large volumes oftraific that they can monetize through means such as advertising 

and "referrar' commissions from cyberlockers which pay them a percentage oftheir 

premium subscription revenues. 

While there can certainly be legitimate uses for some of these sites, a great many of them engage 

in, condone, and even encourage massive trafficking of stolen!P. These sites are real businesses 

that are supported by common commercial models such as the sale of advertising, premium 

subscriptions, and unauthorized versions of products such as our books. They have robust 

economic models yet they provide no compensation to the creators of the IP that sustains their 

businesses. Increasingly, they have located themselves outside the reach of U.S. law and 

enforcement agencies. 

From our perspective as publishers, it is as ifthere was a chain of beautiful bookstores, well-lit 

and fully stocked, located on prime sections of Main Street everywhere, sitting right next to 

Barnes and Noble or Borders superstores. The only difference is that the books in the first store 

are actually stolen and ofTered for free or close to free. If you were walking by, which one 

would you walk into? 

In the physical world, we would have no qualms about shutting down the store engaged in the 

sale of stolen goods. Yet, today there is currently little that we can do stop the illegal activity of 

these obviously bad actors. 

What Macmillan is Doing to Confront Digital Piracy 

At Macmillan, we consider protecting the work of our authors one of our top priorities Thus, we 

are taking aggressi ve steps to contront digital piracy: 

We devote a signiticant amount of time and money to searching the Internet for 

unauthorized and infringing versions of our books and then issuing takedown notices 

under the DMCA. We now issue thousands of takedown notices every month, only to 

see such materials reappear almost immediately on the same sites. Unfortunately, the 

volume of works found online continues to io"OW despite these efforts. 

Where possible, we and other publishers have taken legal action against leading filesharing sites overseas. While this has had some limiting effect on the infringing activities 

of the specitic targets, much of the pirate traffic appears to simply shift to other intiinging 

sites. 

We work diligently to protect our content throughout the publishing process to prevent 

our pre-publication books from winding up online. To this end, we have invested 

considerable sums in sophisticated systems and processes to track and protect our content 

4 
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macmillan 

as it works its way through the publishing process. Of course, once a book is published, 

it is easily copied or scanned and distributed. 

We work closely with our business partners to implement practices and technologies that 

can limit piracy. Just this week, a leading tablet manufacturer agreed to pull the app of 

one of the leading pirate cyberlocker sites from their app store. In another case, our work 

led to the same device manufacturer refusing to accept the app of a significant facilitator 

of eBook piracy for distribution in their app store. As a result, the intringing company 

decided to "go legit" A year later, they remain "legit" In yet another case, a major USbased online book community decided to implement content tiltering in response to 

pressure from publishers. This filtering technology, while admittedly imperfect, is 

allowing the site to identify infringing content and prevent its upload before it appears on 

the site, available for public consumption. This action is paving the way for commencing 

commercial relationships with publishers such as Macmillan. 

Above all, we work to make the vast majority of our content widely available at fair 

prices and in the formats that consumers want. Although the existence of piracy could 

motivate us to keep our content omine, we believe that broadly restricting the availability 

of digital books would limit market innovation and would only serve to increase a 

consumer's motivation to steal our content, and for pirate sites to fill the void. 

Despite all of these actions, digital piracy of books continues to grow very rapidly, largely fueled 

by the existence oflarge commercial websites and services that profit from the creative output of 

our industry. As has occurred in other IP-based industries, rampant online piracy threatens to 

undermine our ability to nurture creativity, to develop new technologies that will enhance 

knowledge development and education, and to create a publishing platfonn for the next 

generation of great American authors. 

For these reasons, we must now pursue strong legislation. Our simple goal is to begin to shut 

down the very worst offenders and choke off the economic incentive that they now have to steal 

and trade in the work of authors and publishers 

A Comprehensive Legislative Approach 

Macmillan strongly supports the introduction oflegislation that enables us to address the "worst 

of the worst" infringers. Further, we believe that any such legislation must address the problem 

in all of its forms, including all categories of infringing sites as mentioned above. 

From our perspective as publishers, this would mean that any legislation must specitically 

include cyberlocker sites due to the massive and flagrant book piracy they are facilitating today. 

We recognize that the inclusion of cyberlockers presents a challenge because they can, in theory, 

be used for legitimate purposes. To address this concern, we propose a rubric that enumerates 

criteria that may be indicative of whether a site is legitimate or is primarily disseminating pirated 

or counterfeit goods and services. Proposed criteria could include: 
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macmillan 

Does unauthorized copyrighted content comprise a substantial portion of the material 

publicly offered by or through the site such that the operators ofthe site must know of 

and acquiesce to this activity? 

Does the site have substantial, repeated, and persistent features that directly enable 

trafficking in unauthorized copyrighted content? 

Does the site take reasonable steps, including well-known technologies such as filtering, 

to prevent the distribution or sharing of infringing content? 

Does the site take reasonable steps to remove or disable access to infringing content in an 

expeditious and reasonable manner upon notification by or on behalf of the copyright 

owner, and are reasonable eflorts made to keep such inliinging content ollofthe site? 

Does the site market itselfas a source of free, copyrighted content and prominently 

feature verbiage that is associated with pirated or counterfeit product distribution? 

Does the site's domain name incorporate a trademark or service mark that indicates the 

availability of pirated or counterfeit products or services? 

Does the site offer financial or other incentives to upload and broadly share stored 

content? 

This list is certainly not exhaustive, but it does encompass key characteristics that define the 

bright line between legitimate sites and those that are aggressively pursuing business models 

primarily based on piracy and counterfeiting. 

Engaging Key Industry Partners 

A second critical element of any eflective legislation must be the engagement of key members of 

the legitimate Internet economy whose services are unwittingly used to enable the piracy-based 

business models. These players include ISPs, search engines, payment processors, and 

advertising service providers, each of whom is responsible for a key piece of the rogue website 

economic ecosystem. 

Said differently, consumers cannot lind rogue sites without search engines and cannot go to these 

web sites without ISP' s who manage internet traffic. Further, the rob'lle sites cannot sell 

illegitimate product without the services of credit cards processors and cannot sell adds without 

ad networks. Thus, we need the help of these key players, and any legislation should not contain 

substantial carve-outs that would otherwise allow some entities to be part of the solution only 

when it is convenient for them. 

Specifically, it has become clear that search engines provide a vital link to rogue sites for 

consumers. It is also clear that the search engines can quite effectively remove and/or block 

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macmillan 

specific websites from their search results. We have seen search engines make ongoing iterative 

changes to their search algorithm to decrease rankings of web sites that capitalize on loopholes, 

or that otTer generally low quality content.' Presumably, these companies could do the same for 

other sites that blatantly traffic in pirated content. 

To date, we have made progress working with some of these industry partners. However, it is 

clear that legislation is needed to lay the appropriate legal framework that will allow ISPs, search 

engines, payment processors and ad service companies to fully tackle this problem alongside 

rights holders. For instance, some intemlediaries may require immunization from liability, along 

with clear direction from judicial authorities, in order to take concerted action against rogue sites. 

Conclusion 

For the book publishing industry, the obvious end result of continued, unfettered growth of rogue 

websites will be simple: the large scale loss of sales, profits, and jobs. From our point of view as 

publishers, a more dangerous effect lies behind the simple economics. 

As book sales evaporate the incentive for writers to write and publishers to publish will decay. It 

is truly demoralizing for authors to see their work, which may have taken many years to create, 

online for free the instant it is published. Moreover, for many authors and publishers the 

migration of a small share of sales from "paid" to "pirated" will be the difference between 

continuing to create books and having to find another line of work. 

As publishers, we believe that this outcome will result in long term damage to our knowledgebased economy, our culture, and our standing in the world. Thus, while the direct effect of 

piracy can be quantified but the cost to our nation's future will be immeasurable. 

Again, Mr. Chainnan, we appreciate this opportunity to share our views with the Committee and 

would look forward to the opportunity to work with you and your colleagues as you continue to 

address the important issue of protecting American intellectual property. 

R http://goog1cblog.blogspot.comI2011/01/googlc-scarch-<-lnd-scarch-cnginc-spam.html 

7 
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65186HH-1.eps

~iIIIIi1~:"'iIIII""""® 

MOnoN I'Il11JIIEASSOOIIfIIII OF AlERIIlA. Ute. 

STATEMENT OF THE MOTION PICTURE ASSOCIATION 

OF AMERICA, INC. 

BEFORE THE HOUSE JUDICIARY COMMITTEE'S 

INTELLECTUAL PROPERTY, COMPETITION, AND THE 

INTERNET SUBCOMMITTEE HEARING: 

"PROMOTING INVESTMENT AND PROTECTING 

COMMERCE ONLINE: LEGITIMATE SITES V. PARASITES, 

PART ll" 

RAYBURN HOUSE OFFICE BUILDING, ROOM 2141 

WASHINGTON, D.C. 

APRIL 6, 2011, 10 AM 

A. Background and Introduction 

We want to thank the Committee for holding a second hearing on promoting 

legitimacy online and addressing the economic impact to our industry by parasitic 

websites that traffic in stolen content. We appreciate the opportunity to submit this 

Statement on behalf of the Motion Picture Association of America, Tnc. 1 and its 

member companies regarding the serious and growing threat of Internet sites that 

profit from the then and unauthorized dissemination of creative content. As the 

primary voice and advocate for the American motion picture, home video and 

television industries in the U.S. and around the world, we have witnessed the 

1'1118 "'-lotion Picture A~sociation of America and its international counterpart, the \1otion Picture Association (lvlPA) serve as the voice and 

au vocate o[Lhe A..J.nerican moLion picture. home video anu television indllstries. domestically through the MPA ... -'\. am! internationally through the 

:OvfPA. :OvfP AA. members ~ Paramount Pic111~S Corporatioo, Sony Pictures Ln1erLall1lllenl hlC .. TwenLieLh CenluI}' fox film Corporation. 

Universal City SLudios LLC. '·~lalt Disney Studios :Ovfolion Pic111~S. and V,.Tamer Uros. Enlerlaillluenl Inc 
285 


65186HH-2.eps

proliferation of web-based enterprises dedicated solely to stealing the product of 

our industry's workforce and are gravely concerned about the detrimental impact 

that digital then has on the millions of American men and women who work in our 

industry. 

The US. motion picture and television industry plays a unique role in today's 

American economic infrastructure, providing high-paying jobs to workers in all 50 

states; fueling small business growth; injecting capital into local, state, and national 

revenue pool and consistently generating a positive balance of trade. Of the 2.4 

million American workers who depend on the entertainment industry for their jobs, 

about 12 percent are directly employed in motion picture and television production 

and distribution-from behind-the-scenes production technicians to make-up 

artists and set-builders-across all 50 states. These are high-paying jobs, paying 

an average salary of nearly $76,000, 72 percent higher than the average salary 

nationwide. More than 95,000 small businesses-93 percent of which employ 

fewer than 10 people-are involved in the production and distribution of movies 

and television. On-location filmed productions infuse, on average, $223,000 per 

day into a local economy. Nationwide, our industry generates more than $15 

billion in public revenue. As one of the few industries that return a positive 

balance oftrade, our industry is critical to the US. export economy. 

B. Websites Peddling Stolen Digital Content Create Consumer Confusion, 

Harm the Online Marketplace and Damage the Motion Picture and 

Television Industry 

High-speed broadband networks present tremendous opportunities for 

exchanging infonnation and ideas; lmfortlmately, the laws and regulations put in 

place to protect consumers and innovation in the physical marketplace have not 

kept pace with the growth of illegal conduct online. The illicit use of online 

networks can facilitate the anonymous then and rapid, ubiquitous illegal 

distribution of copyrighted works. The key foundation of American industry-the 

expectation that hard work and innovation is rewarded-is imperiled when thieves, 

whether online or on the street, are allowed to steal America's creative products 

and enrich themselves along the way. 

Rampant then of American intellectual property puts at risk the livelihoods 

of the workers who invest time, energy and fortune to create the filmed 

entertainment enjoyed by millions. To these men and women and their families, 

digital theft means declining incomes, lost jobs and reduced health and retirement 

benefits. 
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Currently, the most pernicious forms of digital theft occur through the use of 

so-called "rogue" websites. The sites, whose content is hosted and whose 

operators are located throughout the world, take many forms, but all materially 

contribute to, facilitate and/or induce the distribution of copyrighted works, such as 

movies and television programming. 

These websites present a two-pronged threat: They simultaneously weaken 

the film and TV industry by LUldercutting, eliminating or reducing the market for, 

and thus the financial support for, film and television production, which millions 

rely on for jobs, bringing down the U.S. economy as a whole, as well as 

undennining the online marketplace. In addition, these websites expose consumers 

to criminals who routinely pilfer personal and financial information from 

unsuspecting targets, putting consumers at risk to identity theft. Furthermore, 

legitimate companies that want to usher in new business models and provide highquality content and more consumer choice online, have a limited potential for 

growth when they are forced to compete with entities that are distributed the exact 

same content through illicit means. 

Rogue websites typically engage in one or more of the following forms of 

online theft of copyrighted content: 

o Streaming an unauthorized copy of a copyrighted video; 

o Downloading an LUlauthorized copy of a copyrighted video; 

o Streaming or downloading of an unauthorized copy of a copyrighted 

video by linking to a torrent or other metadata file that initiates piracy; 

o Linking to a specific offer to sell an unauthorized copy of a copyrighted 

video; 

o Hosting an unauthorized copy of a copyrighted video. 

These rogue websites are increasingly sophisticated in appearance and take 

on many attributes ofiegitimate content delivery sites, creating additional 

enforcement challenges and feeding consumer confusion. Among the steps taken 

by rogue websites to deceive conSLllllers into believing they are legitimate are: 

o The use of credit card companies, such as Visa and MasterCard, to 

facilitate payments to rogue websites; 

o The use of "e-wallet" or altemative payment methods such as PayPal, 

Moneybrokers, AlertPay and Gate2Shop to allow for the receipt of 
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payment from the public for subscriptions, donations, purchases and 

memberships; 

o The use of advertising, often for mainstream, Blue Chip companies, on 

the websites; 

o Reward programs for frequent purchasers. 

The impact of this nefarious activity is documented in a recently published 

report by Envisional, an independent Internet consulting company. Envisional's 

"Technical Report: An Estimate oflnfringing Use of the Internet" estimates that 

almost a quarter (23.8 percent) of global Internet traffic and over 17 percent of 

U.S. Internet traffic is copyright infringing. This staggering level oftheft cannot 

be sustained without significant damage to the motion picture industry and the 

workforce it supports. 

Our studios are not alone in grappling with this threat. According to Deluxe 

Entertainment Services Group, the leading provider of post-production creative 

services for the film industry, hackers from around the world attempt to penetrate 

Deluxe's network 20 million times a month on average, seeking financial gain by 

stealing movies and television content while it is in their possession. Four million 

attempts-a quarter of the hacker hits---come from Chinese TP addresses. These 

criminal networks are undennining U.S. competition abroad and hanning 

American workers. 

Unfortunately, American companies-knowingly or not---often provide the 

financial fuel that enriches the criminals profiting from these rogue sites. Online 

advertisement brokers such as Google's AdSense advertise their clients on these 

sites, paying the website operators for the right to do so. Online pay processors 

and credit card companies similarly operate on these websites, tLmling a blind eye 

to the willful infringement of copyrights that they are facilitating. Internet service 

providers (ISPs) allow these websites to operate on their networks. Search engines 

present a menu of illicit materials with a few strokes of the keyboard, while 

demonstrating over the past few months that they are, in fact, able and willing to 

change their search algorithms as they see fit. These American businesses are 

contributing to the problem 

C. Legislative Action and Administration Enforcement Is Effective and 

Necessary to Address the Assault of Online Theft 
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We are encouraged by the strong commitment this Committee and this 

Administration have shown to protecting intellectual property and the American 

workers who create it. The positive effects of government's willingness to 

intervene have been palpable: Since U.S. Intellectual Property Enforcement 

Coordinator (IPEC) Victoria Espinel was confinned by the Senate, we have seen 

increasing cooperation from our partners in the private sector intermediarieswhether pay processors, ad brokers, or ISPs. To combat online infringement of 

copyrighted material, many industries must work together to exert reasonable 

efforts to prevent, detect and deter infringement. This is a shared responsibility for 

all intermediaries and third parties, including search engines. 

D. Motion Picture Industry Efforts to Address Online Copyright Theft 

In recent months, industry efforts to address online copyright theft have been 

called into question. It is important to point out that private litigation has its limits, 

with suits left unresolved for years. This is particularly damaging since swift 

action is paramount to our industry. Most films make the bulk of their box office 

returns in the first few weeks ofrelease. By the time a lawsuit is even filed, the 

damage is already done. 

Nevertheless, the MPAA and member studios have filed over 25 copyright 

infringement lawsuits in the last five years against owner/operators of rogue 

websites or "parasites," or other companies infringing our copyrights. 

The MPAA and member studios spend an enonnous amOlUlt oftime and 

financial resources on identifying and seeking removal of unauthorized, 

copyrighted content online or links to such content. On average, a motion picture 

studio identifies several hundred thousand pieces of, or links to infringing content 

online per month. In addition, a number of companies must hire private vendors to 

assist in locating and responding to additional hundreds of thousands incidences of 

unauthorized content. Unfortunately, not all content owners have the resources to 

protect themselves. 

To respond to such illegal activity, a content owner must file countless 

copyright infringement notices pursuant to the Digital MillennilUll Copyright Act 

(DMCA). For those sites that are responsive to notices, it can still take days or 

weeks before the content is removed. With sites that are dedicated to providing 

unauthorized copyrighted content online, it is a virtually fruitless exercise. [n one 

exanlple, a piece of infringing content was re-posted by the sanle individual over 
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40 times on the same website before finally giving up. Furthermore, many of these 

sites will not even respond to take down notices submitted pursuant to the DMCA. 

The MP AA and member studios also invest substantial financial resources to 

generate digital fingerprints and watennarking of their copyrighted content. 

Fingerprints are provided to cooperative online user-generated content sites, such 

as YouTube, MySpace, and Daily Motion, in order to provide for identification and 

removal of unauthorized copyrighted content that a user might seek to upload. 

Watermarking is used to protect film content in theatrical release; where a device 

manufacturer is willing to install watermark detection technology, a bootleg DVD 

copy of a film camcorded in a theater will be disabled from playback on such a 

device. These measures only have a limited impact given the small number of sites 

or entities willing to cooperate with us. 

E. Effective Enforcement by the U.S. Government 

Last week MP AA and member studios joined our colleagues in the filmed 

entertainment business to express our strong support for the Immigration and 

Customs Enforcement (ICE) agency in a letter to all Members of Congress. We 

commend their efforts to combat digital theft and counterfeiting for not only our 

industry but also a range of U.S. industries dependent upon intellectual property 

protection. 

The combined efforts ofICE and the Intellectual Property Rights (IPR) Center 

have not only put llLunerous rogue sites out of business but have also raised 

awareness with the public, deterred bad actors, and resulted in many websites 

volLUltarily ceasing criminal activity or becoming legal platfomls for online 

content. 

Recently, the Oftlce ofthe IPEC released its first annual report to Congress 

pursuant to the PRO-IP Act, as well as a white paper outlining intellectual property 

enforcement legislative recommendations. Both the report and white paper 

emphasized the detrimental impact of copyright infringement on the economy and 

the need to work with the Congress to update intellectual property laws to improve 

law enforcement effectiveness. 

We believe that rogue sites legislation, combined with the Administration's 

work with intennediaries and enforcement by the IPR Center, will go a long way 

towards shutting down the LUlauthorized distribution of copyrighted works and 

close a gap in the intellectual property law. 
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Again, we thank the COlmnittee on behalf of our member companies for the 

opportunity to provide this Statement to underscore the severity of the pemicious 

threat posed by digital theft to our workers, whose jobs, pensions and benefits are 

most vulnerable to its impact. We look forward to working with you, Chairman 

Goodlatte, Ranking Member Watt, and other Members of the Subcommittee on 

crafting legislation to deal with this crilninal activity. 
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MTMTTD 

April 1, 2011 

Tile HOllordbk Lamar Smith 

Cllairman. C()IIlmiul'C on the Judiciary 

213R Kay"um liouse Oni<X' lluikling 

Washill!;\(IIl. D,C. 20515 

Th~ liollumbJc Juhn Conyers 

Commilloo I'" Ihe Judiciary 

Jl-35 I Rayburn Hou,;i.' OllieI.' lluildin,g 

Washington D,C. 2U515 

Subject: IIrorlng " Promoting In ~:s ulI l' nl uud P,'Ulecllng Coml1lertl" Online: 

l.l'giliI1l9Ie Sites " , Pllnlsitrs, I'Rl1 lr 

Dear Chainnan Smith and R!l.nking M.cmOCr Conyers: 

The prooucli()f1 and di.mibulion Or acaliw '''(lrk~. such as l~lcvi~iun couter!!. mOlion pk:lurcs 

nnd mu~ic. h:1:j 1)(:<:0 :111 ul1:~~sailablc slfl.:nglh (If our Nou;nn. al1l.l the prmccli<J 11 uf tbis "merican 

imcllcc\uuJ property i.., nnw more th un cI'er absolutely crilicallO (IUr fllm~ ~"Co rJUmic growth. 

!iackg[Quod po Mil"'JTlD and OMC A_CODIDI!llnl Inkr !)own NoUn'!! 

Our ,,·ompany. MiMTil) Curp .. aCls as s ~opyrjglll cnfnn:cm~m agcm ror S<!llll0 !If lhc worlo'S 

Icadin~ mOliun picture. telcvisiun/spuns jlnl.[!mmming. U1l0 mu~ic compi.nics. On u mumhly 

basis. MiMTiD seoos to vonuns wt:b:sitCS several thousanO infringement 1lI)litcs demanoing. tMt 

inrringing COment on thOse wct>site ~ toe removed. 

l3a.:h t:lke lIn",n nOliCl: s.:m by Mi~\fnO un behalf 01" ":(lpyright owners e(lmplieS wilh thl· 

rigorous l"I.'ljuin!nlClllS set rnnh in the Digital Mill..:nniulII Copyrig.ht Act ("J)MCI\·"). This 1l1cans 

lhal. IlnHm~ mh(:r things. each of thCl;(: notices cumain.' itlcnliti~ali()n or ttll: ~upyril1hl owner (lr 
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the work infringed; an attestation to the copyright owner's good faith belief that the identified 

links arc infringing and not authOlized by the copyright holder or by law; a sworn statement 

under penalty of perjury that the issuer is authorized to act on behalf of the relevant copyright 

holder; and an attestation that the information provided in the notice is accurate. Accordingly. 

before a notice is submitted. the copyright owner and/or its agent must undertake an appropriate 

investigation confirming the accuracy of the inflingement allegation and the other information 

provided in the notice. 

MiMTiD sends DMCA-compliant notices ("take down notices") to sites that host (store) 

inflinging files, torrent sites that facilitate peer-to-peer infringement, streaming sites that link to 

and stream infringing content. and to search engines that provide links to infringing content. l'or 

instance, over the past two months (February I, 20 II through March 30. 20 II), MiMTiD has 

issued 4.701 take down notices to hosting. torrent. and streaming sites offering infringing 

content. and 19.237 notices to all search engines we monitor that are linking to infringing 

content. 13.219 of those search engine notices were to ()oogle in particular. Over the past 6 

months (September 20lO through March 2(11). MiMTiD has issued over 262.722 take down 

notices in total. For perspective. this work was conducted on behalf of a small number of 

copyright owners for a limited number of titles; it constitutes an accurate representative sample 

but it should be noted that it is a merc fraction of the intiingement perpetuated by these sites and 

on the Internet in general. 

Monitoring of popular search engines for links to infringing content. and sending take down 

notices to the search engines. is a specialty of our company. MiMTiD is one of the largest. if not 

the largest. submitter of such take down notices to search engines. Consumers regularly utilize 

search engines to identify sources for content online. and the search engines' prompt compliance 

with our take down notices through the removal of identified infringing search results. would 

help to prevent countless consumers from knowingly or unknowingly accessing infringing 

content. 

2 
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Data on Search Engine Compliance with DMCA-Complaint Take Down Notices 

Unfortunately. in most cases. the take down notices we send to search engines on behalf of 

copyright owners are not complied with expeditiously. For example. over the past two months 

(February I, 20 I I through March 30. 20 I I). Google has delayed for an average of 20 days 

before taking action on our notices. and many notices are not actioned by Google for more than 

45 days. During this delay. the Google links to infringing COl1lent (with Googlc ads running next 

to the infringing search resnlts) remain live. which causes irreparable harm to the copyright 

owners that created and own the valuable content that continues to be stolen in the interim. By 

comparison. over the same period. Yahoo and Bing took 4 days and 5 days. respectively, to act 

on our take down notices. which we believe is several days longer th,m necessary or appropriate 

for the simple task of removing an infringing link. but still in a different category of delay than 

Google. Moreover. Google willfully refuses to comply at all with a significant subset of take 

down notices; indeed. over the past two months, Google refused to remove 39% of the links 

idel1lified in the take down notices we submitted. By comparison. over the same period. Yahoo 

and 13ing have complied with 9S% of our notices by removing the infringing links. 

Why the material difference in search engine responses and response time? From what we 

understand. Google takes it upon itself to conduct a manual investigation of each infringing link 

identified and ulLimately decides, using unpublished criteria. whether or not Googlc agrees with 

the copyright owner that the link is indeed an infringement of the relevant copyright owner's 

rights. As noted above, all notices sent by MiMTiD on behalf of copyright owners are DMCAcompliant. so they satisfy the extensive, carefully-crafted criteria that Congress established for a 

notice to be valid. The DMCA also provides other built-in safeguards and checks and balances. 

such as a counter-notice process for a pany to object to the removal of its content and penalties 

against copyright owners that abuse the notice process. N onethc1ess, ()oogle insel1s itself as an 

extra-statutory. self-appointed arbiter of the validity of DMCA-compliant notices that Congress 
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has already determined as valid under the statute. If Google does not unilaterally agree that the 

links submitted in a take down notices are inflinging. under whatever standard it chooses to use. 

Google informs the copyright owner or its agent as follows: "In accordance with the Digital 

Millennium Copy tight Act, we have completed processing your infringement complaint. ", At 

this time, Google has decided not to take action on these URLs: [list of ignored linksl". We 

believe Google's seli-appointed arbiter role is improper because it interferes with the cm'efullycrafted and balanced statutory process. causes undue delay, and deprives copyright owners of 

their right to have inti"inging content removed expeditiously on the basis of their valid take down 

notices, as expressly contemplated by the DMCA statute. It is our position that any website that 

intentionally delays processing DMCA-compliant inftingement notices for any reason cannot be 

said to be acting "expeditiously" and therefore does not satisfy the requirements for safe harbor 

eligibility set forth in the Digital Millennium Copyright Act. 

The Role of Egregiously Infringing Sites 

An additional challenge with the DMCA take down notice process is that all search engines 

currently choose to remove only tlle specific infringing link that the copy tight owner or its agent 

detects and includes in a take down notice. This may make sense with respect to an occasional 

link to a legitimate site that has incidental infringements. However, our data shows that a 

significant number of the specific infringing links detected and noticed are for a small number of 

egregious, repeat infringing sites that are dedicated exclusively to infringement. Over the past 6 

months, the top 10 infringing sites monitored by MiMTiD have accounted for 6'i'k of the total 

take down notices we have submitted. Presently, the search engines do not consider these 

egregiously infringing sites to be "repeat inti'ingers" under the DMCA and therefore choose to do 

nothing to stop the intlux of infringing links from these sites in their search engines. For 

example, even after receiving dozens or even hundreds of infringement notices about a particular 

egregiously infringing website, the search engines do not deindex these infringing sites as whole. 

To the contrary, the search engines continue to frequently and affirmatively "crawl" these 

egregiously infringing sites for more links to display in their search engine results. 

4 
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CopYlight owners arc forced to try to constantly and reactively respond to new inflingements 

from these egregionsly inflinging sites that appear before the old ones arc even removed. It is an 

impossible task, and this is one reason we strongly support legislation that would establish 

procedures for obtaining a Court determination that a specific egregiously infringing website is 

dedicated to infringing activity and include sem'Ch engines as parties bound by such a Court 

detennination. Once a Court determines a site to be dedicated to infringing activity, the search 

engines should be required to deindex the site, including by removing existing links and by not 

crawling the egregiously infringing site for more links, 

The Role of Advertising 

In the course of our monitoring and enforcement work, MiMTiD also captures evidence of the 

advertising networks that are monetizing our customers' inflinged content by placing ads 

alongside those inflingements. Many of the websites that we notice to search engines repeatedly 

for copyright infringement are dedicated to inti"inging activity and are among the top several 

hundred most populm sites in the world. Publicly available data suggests that many millions, if 

not billions, of dollars are being monetized annually through advertisements appeming on sites 

dedicated to copyright infringement. I'or instance, available tools for estimating website 

advertising revenue (websiteoutlook,colTI and cubestat.colTI). indicate that the top I Il infringing 

sites monitored by MiMTiD alone earn over $71lM in advertising revenue annually. 

Our data also shows that Google is the principal ad verLising net work, or is pm·ticipating with the 

advertising networks, appearing on many websites dedicated to copyright infringement. 

Specifically, Google is a direct or indirect advertising network for 29% of the top 100 repeatedly 

infringing websites most frequently identified in t1ke down notices sent by MiMTiD. 

For instance, one repeat infringing site that we have recently noticed to Google over 2,000 times 

for 137 separate inflinging links on behalf of a diverse set of content owners is TORRI ~NTZ.l \U 

(http://www.torrentz.eu). TORRENTZ.EU is ranked as the 173rd most popular site in the world 

by Alexa, the world's leading company that ranks a website's global polarity (by comparison 
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REUTERS.COM is ranked #172). The advertising networks that MiMTiD detected as 

monetizing the inti'inging content on TORRENTZ.EU include: Adperium, ()oogle Syndication 

and Google Doubleclick. Of 137 TORRENTZ.EU links included in our notices, Google has 

taken an average of 26 days to process only 37 of these infringement notices. The other 100 

links remain active in Google search results. 

Another such site that we have recently noticed to Google over 300 times for 163 separate 

infringing links is TARlNGA.NET (http://www.taringa.net).TARINGA.NETis ranked as the 

127fh most popular site in the world by Alexa (by comparison Google's GOOGLE.eN (Google 

China) is ranked #128). The adveltising networks that MiMTiD detected as monetizing the 

inflinging content on TARINCJA.NET include: Google Syndication and CJoogle Doub1cdick. 

Of 163 TARINGA.NET links included in our notices. Google has taken an average of 24 days to 

process 131 of these infringement notices. The other 32 links remain active in Google search 

results. 

Go ogle. through a direct relationship with TORRUNTZ.DU and TARTNGANDT or through its 

relationship with the other advertising networks that are present on those sites, is necessarily 

receiving a tangible tinancial benetit from these sites' inti'inging activity. Google continues to 

maintain direct and indirect advertising relationships with these sites and includes these sites in 

its search database. despite recent notice of over 100 separate instances of inflingement on each 

site. As long as the infringing websites and the specific infringing links remain included in the 

Google search database. Google also continues to profit off of keyword advertising associated 

with consumer searches fhat include links to those sites in fhe search results. The continued 

inclusion of egregiously intiinging sites in search results also materially helps the inflinging sites 

by generating traffic to those sites. This traffic generates additional advertising revenue for the 

sites and fheir advertising networks. Increased traffic tends to elevate sites in search engine 

results, giving them even greater visibility. All of this results in a perpetual cycle of 

infringement, generating traffic and revenue, which can then be applied by the infringing sites 

back into the business of infringement. 
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In our opinion. search engines that also run advertising networks are disincentivized ii'om taking 

action to stop the now of consumer traffic to. or advertising revenue ii·om. even the most 

egregious sites dedicated to infringement. It remains in their financial interest to continue to 

enable the cycle or commercial inftinging activities. including by delaying action on specific 

infringing links noticed by content holders and refusing to deindex egregiously infringing sites. 

I 'or this reason. we strongly support legislation establishing procedures for obtaining a Court 

detennination that a specific egregious repeat inflinging website is dedicated to infringing 

activity and. specifically. the inclusion of search engines and advertising networks within that 

legislation's framework as parties obligated to cut 0[[ their support of such sites. 

Sincerely. 

David Wallace Cox 

President and Chief Enforcement Officer 

MiMTiD Corp. 

7 
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lAD l-aunches firM and o.~~ Qulli!)' A .... ranceCenifiCll;on for Ad Network.&: E.occ","ni"S 

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lAB Launches First and Only Quality Assurance Certification for Ad 

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