II 

112TH CONGRESS 

1ST SESSION S. 2029 

To amend the Tariff Act of 1930 to deter unfair imports that infringe 

United States intellectual property rights, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 17, 2011 

Mr. WYDEN (for himself, Mr. MORAN, and Ms. CANTWELL) introduced the 

following bill; which was read twice and referred to the Committee on Finance 

A BILL 

To amend the Tariff Act of 1930 to deter unfair imports 

that infringe United States intellectual property rights, 

and for other purposes. 

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

3 SECTION 1. SHORT TITLE. 

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

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


srobinson on DSK4SPTVN1PROD with BILLS
2 

•S 2029 IS

1 SEC. 2. UNFAIR TRADE PRACTICES RELATING TO IN2 FRINGEMENT OF COPYRIGHTS AND TRADE3 MARKS BY CERTAIN INTERNET SITES. 

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

5 (19 U.S.C. 1304 et seq.) is amended by inserting after 

6 section 337 the following: 

7 ‘‘SEC. 337A. UNFAIR TRADE PRACTICES RELATING TO IN8 FRINGEMENT OF COPYRIGHTS AND TRADE9 MARKS BY CERTAIN INTERNET SITES. 

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

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

12 means a person who files a complaint with the Com13 mission under subsection (d). 

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

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

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

17 ‘‘(3) FINANCIAL TRANSACTION PROVIDER.— 

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

19 subparagraph (B), the term ‘financial trans20 action provider’ has the meaning given that 

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

22 States Code. 

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

24 transaction provider’ does not include an Inter25 net service platform or an affiliate of an Inter26 net service platform. 


srobinson on DSK4SPTVN1PROD with BILLS
3 

•S 2029 IS

1 ‘‘(4) INFRINGING ACTIVITY.—The term ‘infring2 ing activity’ means an activity that— 

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

4 punishable under section 506 of title 17, United 

5 States Code; 

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

7 United States Code; or 

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

9 punishable under section 34(d) of the Lanham 

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

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

12 term ‘Internet advertising service’ means a service 

13 that serves an online advertisement in viewable form 

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

15 owned or controlled by the Internet advertising serv16 ice. 

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

18 term ‘Internet service platform’ means an interactive 

19 digital service the provider of which— 

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

21 intermediary between a user and a supplier of 

22 goods or services; and 

23 ‘‘(B) provides additional services to facili24 tate interaction between users unrelated to pur25 chases from suppliers of goods and services. 


srobinson on DSK4SPTVN1PROD with BILLS
4 

•S 2029 IS

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

2 means the collection of digital assets, including links, 

3 indexes, or pointers to digital assets, accessible 

4 through the Internet that are addressed relative to 

5 a common domain name. 

6 ‘‘(8) INTERNET SITE DEDICATED TO INFRING7 ING ACTIVITY.— 

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

9 site dedicated to infringing activity’ means an 

10 Internet site that— 

11 ‘‘(i) is accessed through a non12 domestic domain name; 

13 ‘‘(ii) conducts business directed to 

14 residents of the United States; and 

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

16 other than engaging in infringing activity 

17 and whose owner or operator primarily 

18 uses the site— 

19 ‘‘(I) to willfully— 

20 ‘‘(aa) infringe a copyright in 

21 a manner punishable under sec22 tion 506 of title 17, United 

23 States Code; or 

24 ‘‘(bb) violate section 1201 of 

25 title 17, United States Code; or 


srobinson on DSK4SPTVN1PROD with BILLS
5 

•S 2029 IS

1 ‘‘(II) to use counterfeit marks in 

2 a manner punishable under section 

3 34(d) of the Lanham Act (15 U.S.C. 

4 1116(d)). 

5 ‘‘(B) BUSINESS DIRECTED TO RESIDENTS

6 OF THE UNITED STATES.—For purposes of de7 termining whether an Internet site conducts 

8 business directed to residents of the United 

9 States under subparagraph (A)(ii), the Commis10 sion may consider, among other indicators, 

11 whether— 

12 ‘‘(i) the Internet site is providing 

13 goods or services to users located in the 

14 United States; 

15 ‘‘(ii) there is evidence that the Inter16 net site is not intended to provide goods 

17 and services to such users or access to or 

18 delivery of goods and services to such 

19 users; 

20 ‘‘(iii) the Internet site has reasonable 

21 measures in place to prevent goods and 

22 services provided by the Internet site from 

23 being accessed from or delivered to the 

24 United States; 


srobinson on DSK4SPTVN1PROD with BILLS
6 

•S 2029 IS

1 ‘‘(iv) the Internet site offers services 

2 obtained in the United States; and 

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

4 provided by the Internet site are indicated 

5 in the currency of the United States. 

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

7 not an Internet site dedicated to infringing ac8 tivity— 

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

10 of expeditiously removing, or disabling ac11 cess to, material that is claimed to be in12 fringing or to be the subject of infringing 

13 activity after notification by the owner of 

14 the copyright or trademark alleged to be 

15 infringed or its authorized representative; 

16 ‘‘(ii) because the Internet site engages 

17 in an activity that would not make the op18 erator liable for monetary relief for infring19 ing a copyright under section 512 of title 

20 17, United States Code; or 

21 ‘‘(iii) because of the distribution by 

22 the Internet site of copies that were made 

23 without infringing a copyright or trade24 mark. 


srobinson on DSK4SPTVN1PROD with BILLS
7 

•S 2029 IS

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

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

3 registration and protection of trademarks used in 

4 commerce, to carry out the provisions of certain 

5 international conventions, and for other purposes’, 

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

7 (commonly referred to as the ‘Trademark Act of 

8 1946’ or the ‘Lanham Act’). 

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

10 term ‘nondomestic domain name’ means a domain 

11 name for which the domain name registry that 

12 issued the domain name and operates the relevant 

13 top level domain, the domain name registrar for the 

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

15 Internet site associated with the domain name, are 

16 not located in the United States. 

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

18 used in connection with an Internet site, includes 

19 any person with authority to operate the Internet 

20 site. 

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

22 in connection with an Internet site, includes any 

23 owner of a majority interest in the Internet site. 


srobinson on DSK4SPTVN1PROD with BILLS
8 

•S 2029 IS

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

2 the meaning given that term in section 45 of the 

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

4 ‘‘(b) APPLICABILITY OF SECTION.—It shall be a vio5 lation of this section, and an unfair practice in import 

6 trade, for an Internet site dedicated to infringing activity 

7 to facilitate imports into the United States. If the Com8 mission determines that there has been a violation of this 

9 subsection, that violation shall be dealt with as provided 

10 in this section. 

11 ‘‘(c) INVESTIGATION OF VIOLATIONS BY COMMIS12 SION.— 

13 ‘‘(1) IN GENERAL.—The Commission— 

14 ‘‘(A) may investigate an alleged violation 

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

16 ‘‘(B) shall investigate any alleged violation 

17 of subsection (b) upon receiving a complaint 

18 filed under subsection (d). 

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

20 under paragraph (1) shall be subject to the require21 ments of section 337(b)(1) with respect to notice of 

22 investigations and timing of determinations. 

23 ‘‘(3) CONSULTATIONS.—In conducting an inves24 tigation initiated under paragraph (1), the Commis25 sion shall consult with, and seek advice and informaVerDate Mar 15 2010 22:22 Dec 22, 2011 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2029.IS S2029

srobinson on DSK4SPTVN1PROD with BILLS
9 

•S 2029 IS

1 tion from, the Attorney General, the Secretary of 

2 State, the Secretary of Homeland Security, the Sec3 retary of Commerce, the Intellectual Property En4 forcement Coordinator, the United States Trade 

5 Representative, and such other officials as the Com6 mission considers appropriate. 

7 ‘‘(4) TERMINATION OF INVESTIGATIONS; RE8 FERRAL.—If the Commission has reason to believe, 

9 based on information before the Commission, that 

10 the domain name associated with an Internet site 

11 that is the subject of a complaint filed under sub12 section (d) is not a nondomestic domain name, the 

13 Commission shall terminate, or not initiate, an in14 vestigation with respect to the complaint, and shall 

15 refer the matter, including any evidentiary record 

16 that the Commission has developed, to the Attorney 

17 General for such further proceedings as the Attorney 

18 General determines appropriate. 

19 ‘‘(5) LIMITATION ON INVESTIGATIONS OF DO20 MAIN NAMES; CONSENT TO JURISDICTION.—Not21 withstanding any other provision of this section, the 

22 Commission shall terminate, or not initiate, an in23 vestigation under paragraph (1) with respect to a 

24 domain name— 


srobinson on DSK4SPTVN1PROD with BILLS
10 

•S 2029 IS

1 ‘‘(A) if the operator of the Internet site as2 sociated with the domain name provides in a 

3 legal notice on the site accurate information 

4 consisting of— 

5 ‘‘(i) the name of an individual author6 ized to receive process on behalf of the site; 

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

8 be served; 

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

10 individual described in clause (i) may be 

11 contacted; and 

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

13 the site— 

14 ‘‘(I) consents to the jurisdiction 

15 and venue of the United States dis16 trict courts with respect to a violation 

17 punishable under section 506 of title 

18 17, United States Code, a criminal of19 fense under section 1204 of title 17, 

20 United States Code, for a violation of 

21 section 1201 of such title, or a viola22 tion of section 2320 of title 18 of such 

23 Code; and 

24 ‘‘(II) will accept service of proc25 ess from the Attorney General with 


srobinson on DSK4SPTVN1PROD with BILLS
11 

•S 2029 IS

1 respect to those violations and the of2 fense set forth in subclause (I); and 

3 ‘‘(B) provided that, in the event of the fil4 ing of any civil action in the appropriate United 

5 States district court— 

6 ‘‘(i) for infringement of copyright 

7 under section 501 of title 17, United 

8 States Code, 

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

10 United States Code, for a violation of sec11 tion 1201 of such title, or 

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

13 Lanham Act, 

14 accepts service and waives, in a timely manner, 

15 any objections to jurisdiction as set forth in the 

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

17 ‘‘(d) COMPLAINTS.— 

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

19 oath, that an Internet site dedicated to infringing 

20 activity is being operated or maintained in violation 

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

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

23 subject of the infringing activity alleged in the com24 plaint. 


srobinson on DSK4SPTVN1PROD with BILLS
12 

•S 2029 IS

1 ‘‘(2) NOTICE TO REGISTRANT OF DOMAIN NAME

2 OF INTERNET SITE ALLEGED TO BE VIOLATING THIS

3 SECTION.— 

4 ‘‘(A) IN GENERAL.—Upon filing a com5 plaint under paragraph (1), the complainant 

6 shall send a notice of the violation alleged in 

7 the complaint to the registrant of the domain 

8 name of the Internet site alleged to be operated 

9 or maintained in violation of subsection (b)— 

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

11 appearing in the applicable publicly acces12 sible database of registrations, if any, to 

13 the extent such addresses are reasonably 

14 available; 

15 ‘‘(ii) via the postal and e-mail ad16 dresses of the registrar, registry, or other 

17 domain name registration authority that 

18 registered or assigned the domain name, to 

19 the extent such addresses are reasonably 

20 available; and 

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

22 Commission finds necessary. 

23 ‘‘(B) RULE OF CONSTRUCTION.—For pur24 poses of this subsection, the actions described 


srobinson on DSK4SPTVN1PROD with BILLS
13 

•S 2029 IS

1 in this paragraph shall constitute service of 

2 process. 

3 ‘‘(3) IDENTIFICATION OF, AND NOTICE TO, EN4 TITIES THAT MAY BE REQUIRED TO TAKE ACTION

5 PURSUANT TO THIS SECTION.— 

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

7 under paragraph (1) shall identify any financial 

8 transaction provider or Internet advertising 

9 service that may be required to take measures 

10 described in subsection (g)(2) if the Commis11 sion issues an order under subsection (f) with 

12 respect to the complaint and the order is served 

13 on the provider or service pursuant to sub14 section (g)(1). 

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

16 under paragraph (1), the complainant shall pro17 vide notice to any financial transaction provider 

18 or Internet advertising service identified in the 

19 complaint pursuant to subparagraph (A) or any 

20 amendments to the complaint. 

21 ‘‘(C) INTERVENTION.— 

22 ‘‘(i) IN GENERAL.—A financial trans23 action provider or Internet advertising 

24 service identified in a complaint pursuant 

25 to subparagraph (A) may intervene upon 


srobinson on DSK4SPTVN1PROD with BILLS
14 

•S 2029 IS

1 timely request filed with the Commission 

2 in— 

3 ‘‘(I) an investigation initiated 

4 under subsection (c) pursuant to the 

5 complaint; or 

6 ‘‘(II) pursuant to subsection 

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

8 or vacate an order issued pursuant to 

9 the complaint. 

10 ‘‘(ii) RULE OF CONSTRUCTION.—Fail11 ure to intervene under clause (i) in an in12 vestigation under subsection (c) does not 

13 preclude a financial transaction provider or 

14 Internet advertising service notified of the 

15 investigation from subsequently seeking an 

16 order to modify, suspend, or vacate an 

17 order issued by the Commission under sub18 section (f). 

19 ‘‘(e) DETERMINATIONS.— 

20 ‘‘(1) IN GENERAL.—The Commission shall de21 termine, with respect to each investigation initiated 

22 under subsection (c) alleging that an Internet site 

23 dedicated to infringing activity is operated or main24 tained in violation of subsection (b), whether or not 


srobinson on DSK4SPTVN1PROD with BILLS
15 

•S 2029 IS

1 the Internet site is operated or maintained in viola2 tion of subsection (b). 

3 ‘‘(2) EXCEPTIONS AND PROCEDURES RELATING

4 TO DETERMINATIONS.—Except as specifically pro5 vided in this subsection, the provisions of the first, 

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

7 of section 337 providing for exceptions and proce8 dures relating to determinations of the Commission 

9 under that section shall apply with respect to a de10 termination under paragraph (1) to the same extent 

11 and in the same manner as those provisions apply 

12 to determinations under section 337. 

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

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

15 which the Commission publishes the determination 

16 in the Federal Register. 

17 ‘‘(4) REFERRALS TO PRESIDENT; TERMINATION

18 FOR DISAPPROVAL.— 

19 ‘‘(A) IN GENERAL.—If the Commission de20 termines under paragraph (1) that an Internet 

21 site dedicated to infringing activity is operated 

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

23 Commission shall promptly submit to the Presi24 dent a copy of a determination, the record upon 

25 which the determination is based, and any order 


srobinson on DSK4SPTVN1PROD with BILLS
16 

•S 2029 IS

1 issued under subsection (f) pursuant to the de2 termination. 

3 ‘‘(B) TERMINATION OF DETERMINATION

4 BASED ON DISAPPROVAL OF PRESIDENT.—If 

5 the President disapproves of a determination of 

6 the Commission for policy reasons and notifies 

7 the Commission of that disapproval not later 

8 than 60 days after the determination is made, 

9 the determination and any order issued pursu10 ant to the determination shall cease to have 

11 force or effect on the date on which the Presi12 dent notifies the Commission of that dis13 approval. 

14 ‘‘(5) ELECTRONIC SUBMISSION OF INFORMA15 TION AND PROCEEDINGS.—The Commission may, in 

16 making any determination under this section— 

17 ‘‘(A) allow the submission of information 

18 electronically; and 

19 ‘‘(B) hold hearings electronically or obtain 

20 testimony or other information electronically or 

21 by such means as the Commission determines 

22 allows participation in proceedings under this 

23 section at as low a cost as possible to partici24 pants in the proceedings. 


srobinson on DSK4SPTVN1PROD with BILLS
17 

•S 2029 IS

1 ‘‘(6) ADDITIONAL PROCEDURES RELATING TO

2 REVIEW OF CERTAIN DETERMINATIONS.—Notwith3 standing the provisions of this subsection or any 

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

5 Commission under this section with respect to the 

6 appropriate remedy provided by the Commission, a 

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

8 to the forfeiture of a bond, and a determination 

9 under subsection (i) with respect to the imposition 

10 of sanctions for abuse of discovery or abuse of proc11 ess, shall be reviewable in accordance with section 

12 706 of title 5, United States Code. 

13 ‘‘(f) CEASE AND DESIST ORDERS.— 

14 ‘‘(1) IN GENERAL.—If the Commission deter15 mines under subsection (e) that an Internet site 

16 dedicated to infringing activity is operated or main17 tained in violation of subsection (b), the Commission 

18 may— 

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

20 infringing activity of the Internet site against 

21 the Internet site and to the owner and the oper22 ator of the Internet site; and 

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

24 owner and the operator. 


srobinson on DSK4SPTVN1PROD with BILLS
18 

•S 2029 IS

1 ‘‘(2) TEMPORARY AND PRELIMINARY CEASE

2 AND DESIST ORDERS.— 

3 ‘‘(A) PETITION BY COMPLAINANT.—A 

4 complainant may file with the chairperson of 

5 the Commission (or the designee of the chair6 person) a petition, in accordance with this para7 graph, for the issuance of a temporary or pre8 liminary order against the Internet site and to 

9 the owner and the operator of the Internet site 

10 to cease and desist the infringing activity al11 leged in the complaint filed under subsection 

12 (d). 

13 ‘‘(B) ISSUANCE OF ORDER.—If, upon re14 ceiving a petition under subparagraph (A) and 

15 after providing an opportunity to be heard 

16 under subparagraph (C), the chairperson of the 

17 Commission (or the designee of the chair18 person) determines that there is reason to be19 lieve that an Internet site dedicated to infring20 ing activity is operated or maintained in viola21 tion of subsection (b), the chairperson of the 

22 Commission (or the designee of the chair23 person) may issue a temporary or preliminary 

24 cease and desist order against, and cause the 


srobinson on DSK4SPTVN1PROD with BILLS
19 

•S 2029 IS

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

2 owner and the operator of the Internet site. 

3 ‘‘(C) OPPORTUNITY TO BE HEARD.— 

4 ‘‘(i) IN GENERAL.—Before issuing a 

5 temporary or preliminary cease and desist 

6 order under this paragraph, the chair7 person of the Commission (or the designee 

8 of the chairperson) shall provide to the 

9 owner and the operator of the Internet site 

10 alleged to be operated or maintained in 

11 violation of subsection (b) an opportunity 

12 to be heard and to submit relevant infor13 mation to the chairperson of the Commis14 sion (or the designee of the chairperson). 

15 ‘‘(ii) ELECTRONIC SUBMISSION OF IN16 FORMATION AND PROCEEDINGS.—The 

17 chairperson of the Commission (or the des18 ignee of the chairperson) may provide an 

19 opportunity to be heard and to submit in20 formation under clause (i) electronically or 

21 in such other manner as the chairperson of 

22 the Commission (or the designee of the 

23 chairperson) determines appropriate. 

24 ‘‘(D) STANDARD FOR RELIEF.—If the 

25 chairperson of the Commission (or the designee 


srobinson on DSK4SPTVN1PROD with BILLS
20 

•S 2029 IS

1 of the chairperson) issues a temporary or pre2 liminary cease and desist order under this para3 graph, the order shall be issued in a manner 

4 consistent with the provisions of rule 65 of the 

5 Federal Rules of Civil Procedure, or any suc6 cessor thereto, relating to preliminary injunc7 tions and temporary restraining orders. 

8 ‘‘(E) PROCEDURES FOR TEMPORARY

9 CEASE AND DESIST ORDER.— 

10 ‘‘(i) EXPEDITED CONSIDERATION.— 

11 Upon a showing of extraordinary cir12 cumstances by the complainant filing a pe13 tition for a temporary cease and desist 

14 order under subparagraph (A), the chair15 person of the Commission (or the designee 

16 of the chairperson) may make a determina17 tion with respect to the petition on an ex18 pedited basis. 

19 ‘‘(ii) EXPIRATION OF ORDER.— 

20 ‘‘(I) IN GENERAL.—Except as 

21 provided in subclause (II), a tem22 porary cease and desist order issued 

23 under this paragraph shall expire at a 

24 time determined by the chairperson of 

25 the Commission (or the designee of 


srobinson on DSK4SPTVN1PROD with BILLS
21 

•S 2029 IS

1 the chairperson) that is not later than 

2 14 days after the issuance of the 

3 order. 

4 ‘‘(II) EXTENSION OF ORDER.— 

5 The chairperson of the Commission 

6 (or the designee of the chairperson) 

7 may extend a temporary cease and de8 sist order issued under this paragraph 

9 for additional periods of not more 

10 than 14 days for good cause or with 

11 the consent of the entity against 

12 which the order is issued. 

13 ‘‘(F) PROCEDURES FOR PRELIMINARY

14 CEASE AND DESIST ORDER.— 

15 ‘‘(i) IN GENERAL.—Except as pro16 vided in clause (ii), the chairperson of the 

17 Commission (or the designee of the chair18 person) shall make a determination with 

19 respect to a petition for a preliminary 

20 cease and desist order not later than 30 

21 days after the Commission publishes notice 

22 of the initiation of an investigation under 

23 subsection (c) in the Federal Register. 

24 ‘‘(ii) EXTENSIONS OF TIME FOR DE25 TERMINATION.—The chairperson of the 


srobinson on DSK4SPTVN1PROD with BILLS
22 

•S 2029 IS

1 Commission (or the designee of the chair2 person) may extend the date by which the 

3 chairperson of the Commission (or the des4 ignee of the chairperson) is required to 

5 make a determination under clause (i) with 

6 respect to a petition for a preliminary 

7 cease and desist order for an additional 30 

8 days if the chairperson of the Commission 

9 (or the designee of the chairperson)— 

10 ‘‘(I) determines that the petition 

11 presents a more complicated case; and 

12 ‘‘(II) publishes in the Federal 

13 Register an explanation of why the 

14 chairperson of the Commission (or the 

15 designee of the chairperson) deter16 mined that the case is more com17 plicated under subclause (I). 

18 ‘‘(G) BONDING REQUIREMENT.— 

19 ‘‘(i) IN GENERAL.—For purposes of 

20 discouraging the filing of frivolous peti21 tions under subparagraph (A) for the 

22 issuance of a temporary or preliminary 

23 cease and desist orders, the chairperson of 

24 the Commission (or the designee of the 

25 chairperson) may require a complainant 


srobinson on DSK4SPTVN1PROD with BILLS
23 

•S 2029 IS

1 that files a petition under subparagraph 

2 (A) to post a bond before issuing a tem3 porary or preliminary cease and desist 

4 order. 

5 ‘‘(ii) FORFEITURE OF BOND.—If, 

6 after issuing a temporary or preliminary 

7 cease and desist order under this para8 graph, the Commission determines that the 

9 Internet site against which the order was 

10 issued was not an Internet site dedicated 

11 to infringing activity operated in violation 

12 of subsection (b), the Commission may, 

13 pursuant to such terms and conditions as 

14 the Commission prescribes, require the for15 feiture of the bond posted by the complain16 ant under clause (i) and the provision of 

17 the bond to the owner or the operator of 

18 the Internet site. 

19 ‘‘(H) APPLICABILITY OF ADMINISTRATIVE

20 PROCEDURE ACT.—The provisions of section 

21 554 of title 5, United States Code, shall not 

22 apply with respect to the issuance of prelimi23 nary or temporary cease and desist orders 

24 under this paragraph. 


srobinson on DSK4SPTVN1PROD with BILLS
24 

•S 2029 IS

1 ‘‘(3) MODIFICATION OR REVOCATION OF OR2 DERS.— 

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

4 issuance of an order under this subsection, a 

5 motion to modify, suspend, or vacate the order 

6 may be filed by— 

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

8 of property, bound by the order; 

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

10 Internet site subject to the order; 

11 ‘‘(iii) any domain name registrar or 

12 registry that has registered or assigned the 

13 domain name of the Internet site subject 

14 to the order; or 

15 ‘‘(iv) a financial transaction provider 

16 or Internet advertising service on which a 

17 copy of an order has been served pursuant 

18 to paragraph (1) of subsection (g) requir19 ing the provider or service to take action 

20 described in paragraph (2) of that sub21 section. 

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

23 modify, suspend, or vacate an order, as appro24 priate, if the Commission determines that— 


srobinson on DSK4SPTVN1PROD with BILLS
25 

•S 2029 IS

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

2 order is no longer, or never was, an Inter3 net site dedicated to infringing activity; or 

4 ‘‘(ii) the interests of justice require 

5 that the order be modified, suspended, or 

6 vacated. 

7 ‘‘(C) CONSIDERATION.—In making a de8 termination under subparagraph (B), the Com9 mission may consider whether the domain name 

10 of the Internet site subject to the order has ex11 pired or has been re-registered by a different 

12 entity. 

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

14 may petition the Commission to amend an order 

15 issued under this subsection if an Internet site de16 termined under subsection (e) to be an Internet site 

17 dedicated to infringing activity is accessible or has 

18 been reconstituted at a different domain name. 

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

20 ENTITIES.—Before the Commission issues an order 

21 under this subsection or modifies, suspends, vacates, 

22 or amends such an order under paragraph (3) or 

23 (4), a financial transaction provider or Internet ad24 vertising service that intervened pursuant to sub25 section (d)(3) in an investigation or action relating 


srobinson on DSK4SPTVN1PROD with BILLS
26 

•S 2029 IS

1 to the order shall have an opportunity to be heard 

2 before the Commission with respect to whether the 

3 Commission should issue the order and the scope of 

4 relief available under the order or whether the Com5 mission should modify, suspend, vacate, or amend 

6 the order, as the case may be. 

7 ‘‘(6) EXPIRATION OF ORDERS WITH RESPECT

8 TO INTERNET SITE.—An order issued under this 

9 subsection against an Internet site shall cease to 

10 have any force or effect upon expiration of the reg11 istration of the domain name of the Internet site. 

12 ‘‘(g) REQUIRED ACTIONS BASED ON COMMISSION

13 ORDERS.— 

14 ‘‘(1) IN GENERAL.—If the Commission reason15 ably believes that a financial transaction provider or 

16 an Internet advertising service identified in a com17 plaint pursuant to subsection (d)(3), or any amend18 ment to the complaint, supplies services to the Inter19 net site that is subject to the order issued under 

20 subsection (f) with respect to the complaint— 

21 ‘‘(A) the Commission may give permission 

22 to the complainant to serve a copy of the order 

23 on the financial transaction provider or Internet 

24 advertising service, as the case may be; 


srobinson on DSK4SPTVN1PROD with BILLS
27 

•S 2029 IS

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

2 the complainant under subparagraph (A), the 

3 complainant shall file proof of service with the 

4 Commission; and 

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

6 pursuant to subparagraph (A), the financial 

7 transaction provider or Internet advertising 

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

9 measures described in paragraph (2). 

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

11 described in this paragraph are the following: 

12 ‘‘(A) MEASURES TO BE IMPLEMENTED BY

13 FINANCIAL TRANSACTION PROVIDERS.— 

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

15 (ii), a financial transaction provider shall 

16 take reasonable measures, as expeditiously 

17 as reasonable, designed to prevent or pro18 hibit the completion of payment trans19 actions by the provider that involve cus20 tomers located in the United States and 

21 the Internet site subject to the order 

22 issued under subsection (f). 

23 ‘‘(ii) LIMITATIONS ON MEASURES.—A 

24 financial transaction provider may not be 

25 required pursuant to clause (i)— 


srobinson on DSK4SPTVN1PROD with BILLS
28 

•S 2029 IS

1 ‘‘(I) to implement measures that 

2 are not commercially reasonable; 

3 ‘‘(II) to modify services or facili4 ties of the provider to comply with the 

5 order issued under subsection (f); or 

6 ‘‘(III) to prevent or prohibit the 

7 completion of a payment transaction 

8 if the provider could not reasonably 

9 determine in advance whether the en10 tity was using the Internet site sub11 ject to the order. 

12 ‘‘(B) INTERNET ADVERTISING SERVICES.— 

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

14 (ii), an Internet advertising service shall, 

15 as expeditiously as reasonable, take tech16 nically feasible measures intended to cease 

17 serving advertisements to the Internet site 

18 subject to the order issued under sub19 section (f) in situations in which the serv20 ice would directly share revenues generated 

21 by the advertisements with the operator of 

22 the Internet site. 

23 ‘‘(ii) LIMITATIONS ON MEASURES.— 

24 An Internet advertising service may not be 

25 required pursuant to clause (i)— 


srobinson on DSK4SPTVN1PROD with BILLS
29 

•S 2029 IS

1 ‘‘(I) to implement measures that 

2 are not commercially reasonable; 

3 ‘‘(II) to modify the services or fa4 cilities of the service to comply with 

5 the order issued under subsection (f); 

6 or 

7 ‘‘(III) to cease serving an adver8 tisement to an Internet site if the 

9 service could not reasonably determine 

10 before serving the advertisement that 

11 the advertisement was being served to 

12 the Internet site subject to the order. 

13 ‘‘(3) COMMUNICATION WITH USERS.—A finan14 cial transaction provider or an Internet advertising 

15 service required to implement measures described in 

16 paragraph (2) shall determine how to communicate 

17 with the users or customers of the provider or serv18 ice, as the case may be, with respect to those meas19 ures. 

20 ‘‘(4) RULES OF CONSTRUCTION.— 

21 ‘‘(A) LIMITATION ON OBLIGATIONS.—A fi22 nancial transaction provider or an Internet ad23 vertising service required to implement meas24 ures described in paragraph (2) shall not be re25 quired to take measures or actions in addition 


srobinson on DSK4SPTVN1PROD with BILLS
30 

•S 2029 IS

1 to the measures described in paragraph (2) pur2 suant to this section or an order issued under 

3 this section. 

4 ‘‘(B) MANNER OF COMPLIANCE.—A finan5 cial transaction provider or an Internet adver6 tising service required to implement measures 

7 described in paragraph (2) shall be in compli8 ance with this subsection if the provider or 

9 service, as the case may be, implements the 

10 measures described in that paragraph with re11 spect to accounts of the provider or service, as 

12 the case may be, as of the date on which a copy 

13 of an order is served under paragraph (1) or, 

14 if applicable, the date on which the order is 

15 modified or amended under paragraph (3) or 

16 (4) of subsection (f). 

17 ‘‘(5) ACTIONS PURSUANT TO COMMISSION

18 ORDER.— 

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

20 cause of action shall lie in any court against a 

21 financial transaction provider or an Internet ad22 vertising service on which a copy of an order is 

23 served under paragraph (1), or against any di24 rector, officer, employee, or agent thereof, other 


srobinson on DSK4SPTVN1PROD with BILLS
31 

•S 2029 IS

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

2 for— 

3 ‘‘(i) any act reasonably designed to 

4 comply with this subsection or reasonably 

5 arising from the order; or 

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

7 meet the obligations under this subsection 

8 of the provider or service if the provider or 

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

10 faith effort to comply with such obliga11 tions. 

12 ‘‘(B) IMMUNITY FROM LIABILITY.—A fi13 nancial transaction provider or an Internet ad14 vertising service on which a copy of an order is 

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

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

17 liable to any person for any acts reasonably de18 signed to comply with this subsection or reason19 ably arising from the order, other than in an 

20 action pursuant to subsection (h). 

21 ‘‘(C) IMMUNITY FROM ACTIONS OF THIRD

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

23 circumvent any measures implemented pursuant 

24 to an order served on a financial transaction 

25 provider or Internet advertising service under 


srobinson on DSK4SPTVN1PROD with BILLS
32 

•S 2029 IS

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

2 in any claim or cause of action against the pro3 vider or service, as the case may be, other than 

4 in an action pursuant to subsection (h). 

5 ‘‘(h) ENFORCEMENT OF ORDERS.— 

6 ‘‘(1) IN GENERAL.—In order to compel compli7 ance with this section, the Attorney General may 

8 bring an action for injunctive relief against any per9 son subject to an order issued under subsection (f) 

10 or on which such an order is served under subsection 

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

12 the order. 

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

14 granted to the Attorney General under paragraph 

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

16 obligations under subsection (g) of a financial trans17 action provider or Internet advertising service on 

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

19 that subsection. 

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

21 an action commenced under paragraph (1) may es22 tablish an affirmative defense by showing that the 

23 defendant does not have the technical means to com24 ply with this section without incurring an unreason25 able economic burden or that the order is inconVerDate Mar 15 2010 22:22 Dec 22, 2011 Jkt 019200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S2029.IS S2029

srobinson on DSK4SPTVN1PROD with BILLS
33 

•S 2029 IS

1 sistent with this section. That showing shall serve as 

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

3 defendant to comply or to the extent of the incon4 sistency. 

5 ‘‘(i) SANCTIONS FOR ABUSE OF PROCESS AND DIS6 COVERY.—The Commission may, by rule, prescribe sanc7 tions for abuse of process in a manner consistent with the 

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

9 of Civil Procedure. 

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

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

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

13 damages to any person shall be granted, against a finan14 cial transaction provider or Internet advertising service for 

15 taking any action pursuant to subsection (g)(2) with re16 spect to an Internet site, or otherwise declining to serve 

17 or terminating transactions with an Internet site, in the 

18 reasonable belief based on credible evidence that— 

19 ‘‘(1) the Internet site is an Internet site dedi20 cated to infringing activity; and 

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

22 service and other contractual obligations of the pro23 vider or service, as the case may be. 

24 ‘‘(k) IMMUNITY FOR TAKING VOLUNTARY ACTION

25 AGAINST SITES THAT ENDANGER PUBLIC HEALTH.— 


srobinson on DSK4SPTVN1PROD with BILLS
34 

•S 2029 IS

1 ‘‘(1) REFUSAL OF SERVICE.—A financial trans2 action provider or Internet advertising service, act3 ing in good faith and based on credible evidence, 

4 may cease providing or refuse to provide services to 

5 an Internet site the provider or service determines to 

6 be an Internet site that endangers the public health. 

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

8 transaction provider or Internet advertising service 

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

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

11 to provide services under that paragraph shall not be 

12 liable to any person under any Federal or State law 

13 for ceasing or refusing to provide such services. 

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

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

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

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

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

19 ‘‘(B) INTERNET SITE THAT ENDANGERS

20 THE PUBLIC HEALTH.—The term ‘Internet site 

21 that endangers the public health’ means an 

22 Internet site that is primarily designed or oper23 ated for the purpose of, has only limited pur24 pose or use other than, or is marketed by its 

25 operator or another person acting in concert 


srobinson on DSK4SPTVN1PROD with BILLS
35 

•S 2029 IS

1 with that operator for use in offering, selling, 

2 dispensing, or distributing any prescription 

3 medication, and does so regularly without a 

4 valid prescription. 

5 ‘‘(C) PRESCRIPTION MEDICATION.—The 

6 term ‘prescription medication’ means a drug 

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

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

9 353(b)). 

10 ‘‘(D) VALID PRESCRIPTION.—The term 

11 ‘valid prescription’ has the meaning given that 

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

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

14 ‘‘(l) SAVINGS CLAUSES.— 

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

16 shall be construed to limit or expand civil or criminal 

17 remedies available to any person (including the 

18 United States) for activities that infringe intellectual 

19 property rights on the Internet pursuant to any 

20 other Federal or State law. 

21 ‘‘(2) RULE OF CONSTRUCTION RELATING TO VI22 CARIOUS OR CONTRIBUTORY LIABILITY.—Nothing in 

23 this section shall be construed— 

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

25 contributory liability for any cause of action 


srobinson on DSK4SPTVN1PROD with BILLS
36 

•S 2029 IS

1 available under title 17, United States Code, or 

2 the Lanham Act, including any limitations on 

3 liability under section 512 of such title 17; or 

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

5 pursuant to subsection (k). 

6 ‘‘(3) RULE OF CONSTRUCTION RELATING TO

7 LIMITATIONS, EXCEPTIONS, AND DEFENSES.—Noth8 ing in this section shall be construed to affect, limit, 

9 or deny application of any limitation, exception, or 

10 defense to copyright or trademark causes of action, 

11 including fair use and other exceptions, limitations, 

12 or defenses available to any person pursuant to any 

13 other Federal or State law. 

14 ‘‘(4) RULE OF CONSTRUCTION RELATING TO

15 CIVIL ACTIONS.—The issuance of an order and ac16 tions taken or not taken pursuant to this section 

17 shall be inadmissible as evidence in any civil action 

18 (other than an action under this section to enforce 

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

20 party who has received, or is otherwise made aware 

21 of, such an order has knowledge regarding any in22 fringing activities relating to the Internet site sub23 ject to the order, including under section 512 of title 

24 17, United States Code, in determining whether any 


srobinson on DSK4SPTVN1PROD with BILLS
37 

•S 2029 IS

1 service provider had actual knowledge or should have 

2 known of the infringing activity.’’. 

3 (b) DISCLOSURE OF CONFIDENTIAL INFORMA4 TION.—Section 337(n) of the Tariff Act of 1930 (19 

5 U.S.C. 1337(n)) is amended— 

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

7 337A’’ after ‘‘this section’’; and 

8 (2) in paragraph (2)— 

9 (A) in subparagraph (A)— 

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

11 inserting ‘‘(j) of this section’’; 

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

13 cease and desist order issued pursuant to 

14 subsection (f), or a consent order issued 

15 pursuant to subsection (c)’’ and inserting 

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

17 order issued pursuant to subsection (f) of 

18 this section or subsection (f) of section 

19 337A, or a consent order issued pursuant 

20 to subsection (c) of this section or sub21 section (d) of section 337A’’; and 

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

23 a consent order issued under this section’’ 

24 and inserting ‘‘(i) of this section or sub25 section (f) of section 337A, or a consent 


srobinson on DSK4SPTVN1PROD with BILLS
38 

•S 2029 IS

1 order issued under this section or sub2 section (d) of section 337A’’; 

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

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

5 (e)(5) of section 337A’’; and 

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

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

8 SEC. 3. APPOINTMENT OF HEARING OFFICERS FOR PRO9 CEEDINGS UNDER SECTIONS 337 AND 337A OF 

10 THE TARIFF ACT OF 1930. 

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

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

13 inserting after section 337A the following: 

14 ‘‘SEC. 337B. SECTION 337 JUDGES. 

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

16 of title 5, United States Code, the Commission may ap17 point hearing officers, other than administrative law 

18 judges appointed under section 3105 of title 5, United 

19 States Code, to preside at the taking of evidence at hear20 ings required by sections 337 and 337A and to make ini21 tial and recommended decisions in accordance with sec22 tions 554, 556, and 557 of such title in investigations 

23 under sections 337 and 337A. The hearing officers ap24 pointed under this subsection shall be known as ‘section 

25 337 judges’. 


srobinson on DSK4SPTVN1PROD with BILLS
39 

•S 2029 IS

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

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

3 minimum of 7 years of legal experience and be licensed 

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

5 Columbia, the Commonwealth of Puerto Rico, or any terri6 torial court established under the Constitution of the 

7 United States. The Commission may promulgate such 

8 other regulations as the Commission considers necessary 

9 with respect to the qualifications of section 337 judges, 

10 including technical expertise and experience in patent, 

11 trademark, copyright, and unfair competition law. 

12 ‘‘(c) ROTATION.—Section 337 judges shall be as13 signed to cases in rotation to the extent practicable or as 

14 otherwise provided for in the rules of the Commission. 

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

16 perform duties inconsistent with the duties and respon17 sibilities of a section 337 judge. 

18 ‘‘(e) REMOVAL.—A section 337 judge may be re19 moved only for good cause shown upon a hearing con20 ducted on the record by the Merit Systems Protection 

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

22 or recommended decision of a section 337 judge shall not 

23 constitute good cause. 

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

25 provided, the laws, rules, and regulations applicable to poVerDate Mar 15 2010 22:22 Dec 22, 2011 Jkt 019200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\S2029.IS S2029

srobinson on DSK4SPTVN1PROD with BILLS
40 

•S 2029 IS

1 sitions in the competitive service apply to section 337 

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

3 paid in accordance with the pay rates provided for in sec4 tion 5372 of title 5, United States Code, commensurate 

5 with the pay rate of an administrative law judge with simi6 lar time in service. Section 337 judges shall not be Senior 

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

8 of title 5, United States Code). 

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

10 judges shall not receive performance evaluations and shall 

11 not be compensated based on performance.’’. 

12 SEC. 4. INFORMATION SHARING WITH RESPECT TO THE IM13 PORTATION OF INFRINGING MERCHANDISE. 

14 (a) MERCHANDISE THAT INFRINGES TRADE15 MARKS.— 

16 (1) IN GENERAL.—Notwithstanding section 

17 1905 of title 18, United States Code, if the Commis18 sioner responsible for U.S. Customs and Border 

19 Protection suspects that merchandise is being im20 ported into the United States in violation of section 

21 42 of the Lanham Act, and subject to any applicable 

22 bonding requirements, the Secretary of Homeland 

23 Security may, for purposes of determining whether 

24 the merchandise is being imported in violation of 


srobinson on DSK4SPTVN1PROD with BILLS
41 

•S 2029 IS

1 that section, share with the holder of the trademark 

2 suspected of being infringed— 

3 (A) information about the merchandise or 

4 packaging or labels of the merchandise; or 

5 (B) unredacted samples, or photographs 

6 of, the merchandise or packaging or labels of 

7 the merchandise. 

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

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

10 Act to provide for the registration and protection of 

11 trademarks used in commerce, to carry out the pro12 visions of certain international conventions, and for 

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

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

15 ‘‘Lanham Act’’). 

16 (b) MERCHANDISE THAT CIRCUMVENTS COPY17 RIGHTS.— 

18 (1) IN GENERAL.—Notwithstanding section 

19 1905 of title 18, United States Code, if the Commis20 sioner seizes merchandise that the Commissioner 

21 suspects of being imported into the United States in 

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

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

24 Homeland Security may notify a copyright owner deVerDate Mar 15 2010 22:22 Dec 22, 2011 Jkt 019200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\S2029.IS S2029

srobinson on DSK4SPTVN1PROD with BILLS
42 

•S 2029 IS

1 scribed in paragraph (2) of the seizure of the mer2 chandise. 

3 (2) COPYRIGHT OWNER DESCRIBED.—A copy4 right owner described in this paragraph is the owner 

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

6 merchandise seized on the suspicion of being im7 ported in violation of subsection (a)(2) or (b) of sec8 tion 1201 of title 17, United States Code— 

9 (A) is primarily designed or produced for 

10 the purpose of circumventing, has only limited 

11 commercially significant purpose or use other 

12 than to circumvent, or is marketed for use in 

13 circumventing, a technological measure that ef14 fectively controls access to a work protected by 

15 that copyright; or 

16 (B) is primarily designed or produced for 

17 the purpose of circumventing, has only limited 

18 commercially significant purpose or use other 

19 than to circumvent, or is marketed for use in 

20 circumventing, protection afforded by a techno21 logical measure that effectively protects the 

22 rights of the copyright owner in a work or a 

23 portion of a work. 


srobinson on DSK4SPTVN1PROD with BILLS
43 

•S 2029 IS

1 SEC. 5. REGULATIONS. 

2 Not later than 270 days after the date of the enact3 ment of this Act, the United States International Trade 

4 Commission shall prescribe regulations— 

5 (1) to provide for procedures for receiving infor6 mation from the public about Internet sites dedi7 cated to infringing activity (as defined in section 

8 337A(a) of the Tariff Act of 1930 (as added by sec9 tion 2 of this Act)); 

10 (2) to provide guidance to intellectual property 

11 rights holders about— 

12 (A) what information those rights holders 

13 should provide to initiate an investigation pur14 suant to section 337A(c) of the Tariff Act of 

15 1930 (as added by section 2 of this Act); and 

16 (B) how to supplement an ongoing inves17 tigation initiated pursuant to that section; 

18 (3) to establish standards for the prioritization 

19 of investigations initiated under that section; and 

20 (4) to provide appropriate resources and proce21 dures for case management and development to af22 fect timely disposition of investigations initiated 

23 under that section. 

24 SEC. 6. STUDY AND REPORTS. 

25 The President shall— 

26 (1) conduct a study on— 


srobinson on DSK4SPTVN1PROD with BILLS
44 

•S 2029 IS

1 (A) the enforcement and effectiveness of 

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

3 added by section 2 of this Act); and 

4 (B) any modifications to the authorities 

5 provided in that section necessary to address 

6 emerging technologies; and 

7 (2) not later than 2 years after the date of en8 actment of this Act, submit to the Committee on Fi9 nance and the Committee on the Judiciary of the 

10 Senate, and to the Committee on the Ways and 

11 Means and the Committee on the Judiciary of the 

12 House of Representatives, a report containing the 

13 results of the study conducted under paragraph (1) 

14 and any recommendations that the President may 

15 have as a result of the study. 

Æ 


srobinson on DSK4SPTVN1PROD with BILLS