II 

Calendar No. 70 

112TH CONGRESS 

1ST SESSION S. 968 

To prevent online threats to economic creativity and theft of intellectual 

property, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 12, 2011 

Mr. LEAHY (for himself, Mr. HATCH, Mr. GRASSLEY, Mr. SCHUMER, Mrs. 

FEINSTEIN, Mr. WHITEHOUSE, Mr. GRAHAM, Mr. KOHL, Mr. COONS, 

Mr. BLUMENTHAL, Ms. KLOBUCHAR, Mr. FRANKEN, Mr. BLUNT, Mr. 

ALEXANDER, Mrs. GILLIBRAND, and Mr. RUBIO) introduced the following 

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

MAY 26, 2011 

Reported by Mr. LEAHY, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To prevent online threats to economic creativity and theft 

of intellectual property, 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 ‘‘Preventing Real Online 

5 Threats to Economic Creativity and Theft of Intellectual 


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1 Property Act of 2011’’ or the ‘‘PROTECT IP Act of 

2 2011’’. 

3 SEC. 2. DEFINITIONS. 

4 For purposes of this Act— 

5 (1) the term ‘‘domain name’’ has the same 

6 meaning as in section 45 of the Lanham Act (15 

7 U.S.C. 1127); 

8 (2) the term ‘‘domain name system server’’ 

9 means a server or other mechanism used to provide 

10 the Internet protocol address associated with a do11 main name; 

12 (3) the term ‘‘financial transaction provider’’ 

13 has the same meaning as in section 5362(4) of title 

14 31, United States Code; 

15 (4) the term ‘‘information location tool’’ has the 

16 same meaning as described in subsection (d) of sec17 tion 512 of title 17, United States Code; 

18 (5) the term ‘‘Internet advertising service’’ 

19 means a service that for compensation sells, pur20 chases, brokers, serves, inserts, verifies, or clears the 

21 placement of an advertisement, including a paid or 

22 sponsored search result, link, or placement that is 

23 rendered in viewable form for any period of time on 

24 an Internet site; 


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1 (6) the term ‘‘Internet site’’ means the collec2 tion of digital assets, including links, indexes, or 

3 pointers to digital assets, accessible through the 

4 Internet that are addressed relative to a common do5 main name; 

6 (7) the term ‘‘Internet site dedicated to infring7 ing activities’’ means an Internet site that— 

8 (A) has no significant use other than en9 gaging in, enabling, or facilitating the— 

10 (i) reproduction, distribution, or pub11 lic performance of copyrighted works, in 

12 complete or substantially complete form, in 

13 a manner that constitutes copyright in14 fringement under section 501 of title 17, 

15 United States Code; 

16 (ii) violation of section 1201 of title 

17 17, United States Code; or 

18 (iii) sale, distribution, or promotion of 

19 goods, services, or materials bearing a 

20 counterfeit mark, as that term is defined 

21 in section 34(d) of the Lanham Act; or 

22 (B) is designed, operated, or marketed by 

23 its operator or persons operating in concert 

24 with the operator, and facts or circumstances 

25 suggest is used, primarily as a means for enVerDate Mar 15 2010 00:29 May 27, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S968.RS S968

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1 gaging in, enabling, or facilitating the activities 

2 described under clauses (i), (ii), or (iii) of sub3 paragraph (A); 

4 (8) the term ‘‘Lanham Act’’ means the Act en5 titled ‘‘An Act to provide for the registration and 

6 protection of trademarks used in commerce, to carry 

7 out the provisions of certain international conven8 tions, and for other purposes’’, approved July 5, 

9 1946 (commonly referred to as the ‘‘Trademark Act 

10 of 1946’’ or the ‘‘Lanham Act’’); 

11 (9) the term ‘‘nondomestic domain name’’ 

12 means a domain name for which the domain name 

13 registry that issued the domain name and operates 

14 the relevant top level domain, and the domain name 

15 registrar for the domain name, are not located in the 

16 United States; 

17 (10) the term ‘‘owner’’ or ‘‘operator’’ when 

18 used in connection with an Internet site shall in19 clude, respectively, any owner of a majority interest 

20 in, or any person with authority to operate, such 

21 Internet site; and 

22 (11) the term ‘‘qualifying plaintiff’’ means— 

23 (A) the Attorney General of the United 

24 States; or 


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1 (B) an owner of an intellectual property 

2 right, or one authorized to enforce such right, 

3 harmed by the activities of an Internet site 

4 dedicated to infringing activities occurring on 

5 that Internet site. 

6 SEC. 3. ENHANCING ENFORCEMENT AGAINST ROGUE 

7 WEBSITES OPERATED AND REGISTERED 

8 OVERSEAS. 

9 (a) COMMENCEMENT OF AN ACTION.— 

10 (1) IN PERSONAM.—The Attorney General may 

11 commence an in personam action against— 

12 (A) a registrant of a nondomestic domain 

13 name used by an Internet site dedicated to in14 fringing activities; or 

15 (B) an owner or operator of an Internet 

16 site dedicated to infringing activities accessed 

17 through a nondomestic domain name. 

18 (2) IN REM.—If through due diligence the At19 torney General is unable to find a person described 

20 in subparagraphs (A) or (B) of paragraph (1), or no 

21 such person found has an address within a judicial 

22 district of the United States, the Attorney General 

23 may commence an in rem action against a non24 domestic domain name used by an Internet site dedi25 cated to infringing activities. 


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1 (b) ORDERS OF THE COURT.— 

2 (1) IN GENERAL.—On application of the Attor3 ney General following the commencement of an ac4 tion under this section, the court may issue a tem5 porary restraining order, a preliminary injunction, or 

6 an injunction, in accordance with rule 65 of the Fed7 eral Rules of Civil Procedure, against the non8 domestic domain name used by an Internet site dedi9 cated to infringing activities, or against a registrant 

10 of such domain name, or the owner or operator of 

11 such Internet site dedicated to infringing activities, 

12 to cease and desist from undertaking any further ac13 tivity as an Internet site dedicated to infringing ac14 tivities, if— 

15 (A) the domain name is used within the 

16 United States to access such Internet site; and 

17 (B) the Internet site— 

18 (i) conducts business directed to resi19 dents of the United States; and 

20 (ii) harms holders of United States in21 tellectual property rights. 

22 (2) DETERMINATION BY THE COURT.—For pur23 poses of determining whether an Internet site con24 ducts business directed to residents of the United 


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1 States under paragraph (1)(B)(i), a court may con2 sider, among other indicia, whether— 

3 (A) the Internet site is providing goods or 

4 services described in section 2(7) to users lo5 cated in the United States; 

6 (B) there is evidence that the Internet site 

7 is not intended to provide— 

8 (i) such goods and services to users 

9 located in the United States; 

10 (ii) access to such goods and services 

11 to users located in the United States; and 

12 (iii) delivery of such goods and serv13 ices to users located in the United States; 

14 (C) the Internet site has reasonable meas15 ures in place to prevent such goods and services 

16 from being accessed from or delivered to the 

17 United States; 

18 (D) the Internet site offers services ob19 tained in the United States; and 

20 (E) any prices for goods and services are 

21 indicated in the currency of the United States. 

22 (c) NOTICE AND SERVICE OF PROCESS.— 

23 (1) IN GENERAL.—Upon commencing an action 

24 under this section, the Attorney General shall send 

25 a notice of the alleged violation and intent to proVerDate Mar 15 2010 00:29 May 27, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S968.RS S968

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1 ceed under this Act to the registrant of the domain 

2 name of the Internet site— 

3 (A) at the postal and e-mail address ap4 pearing in the applicable publicly accessible 

5 database of registrations, if any and to the ex6 tent such addresses are reasonably available; 

7 (B) via the postal and e-mail address of 

8 the registrar, registry, or other domain name 

9 registration authority that registered or as10 signed the domain name, to the extent such ad11 dresses are reasonably available; and 

12 (C) in any other such form as the court 

13 finds necessary, including as may be required 

14 by Rule 4(f) of the Federal Rules of Civil Pro15 cedure. 

16 (2) RULE OF CONSTRUCTION.—For purposes of 

17 this section, the actions described in this subsection 

18 shall constitute service of process. 

19 (d) REQUIRED ACTIONS BASED ON COURT OR20 DERS.— 

21 (1) SERVICE.—A Federal law enforcement offi22 cer, with the prior approval of the court, may serve 

23 a copy of a court order issued pursuant to this sec24 tion on similarly situated entities within each class 


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1 described in paragraph (2). Proof of service shall be 

2 filed with the court. 

3 (2) REASONABLE MEASURES.—After being 

4 served with a copy of an order pursuant to this sub5 section: 

6 (A) OPERATORS.— 

7 (i) IN GENERAL.—An operator of a 

8 nonauthoritative domain name system 

9 server shall take the least burdensome 

10 technically feasible and reasonable meas11 ures designed to prevent the domain name 

12 described in the order from resolving to 

13 that domain name’s Internet protocol ad14 dress, except that— 

15 (I) such operator shall not be re16 quired— 

17 (aa) other than as directed 

18 under this subparagraph, to mod19 ify its network, software, sys20 tems, or facilities; 

21 (bb) to take any measures 

22 with respect to domain name 

23 lookups not performed by its own 

24 domain name server or domain 


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1 name system servers located out2 side the United States; or 

3 (cc) to continue to prevent 

4 access to a domain name to 

5 which access has been effectively 

6 disable by other means; and 

7 (II) nothing in this subparagraph 

8 shall affect the limitation on the liabil9 ity of such an operator under section 

10 512 of title 17, United States Code. 

11 (ii) TEXT OF NOTICE.—The Attorney 

12 General shall prescribe the text of the no13 tice displayed to users or customers of an 

14 operator taking an action pursuant to this 

15 subparagraph. Such text shall specify that 

16 the action is being taken pursuant to a 

17 court order obtained by the Attorney Gen18 eral. 

19 (B) FINANCIAL TRANSACTION PRO20 VIDERS.—A financial transaction provider shall 

21 take reasonable measures, as expeditiously as 

22 reasonable, designed to prevent, prohibit, or 

23 suspend its service from completing payment 

24 transactions involving customers located within 

25 the United States and the Internet site associVerDate Mar 15 2010 00:29 May 27, 2011 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\S968.RS S968

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1 ated with the domain name set forth in the 

2 order. 

3 (C) INTERNET ADVERTISING SERVICES.— 

4 An Internet advertising service that contracts 

5 with the Internet site associated with the do6 main name set forth in the order to provide ad7 vertising to or for that site, or which knowingly 

8 serves advertising to or for such site, shall take 

9 technically feasible and reasonable measures, as 

10 expeditiously as reasonable, designed to— 

11 (i) prevent its service from providing 

12 advertisements to the Internet site associ13 ated with such domain name; or 

14 (ii) cease making available advertise15 ments for that site, or paid or sponsored 

16 search results, links or other placements 

17 that provide access to the domain name. 

18 (D) INFORMATION LOCATION TOOLS.—An 

19 information location tool shall take technically 

20 feasible and reasonable measures, as expedi21 tiously as possible, to— 

22 (i) remove or disable access to the 

23 Internet site associated with the domain 

24 name set forth in the order; or 


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1 (ii) not serve a hypertext link to such 

2 Internet site. 

3 (3) COMMUNICATION WITH USERS.—Except as 

4 provided under paragraph (2)(A)(ii), an entity tak5 ing an action described in this subsection shall de6 termine whether and how to communicate such ac7 tion to the entity’s users or customers. 

8 (4) RULE OF CONSTRUCTION.—For purposes of 

9 an action commenced under this section, the obliga10 tions of an entity described in this subsection shall 

11 be limited to the actions set out in each paragraph 

12 or subparagraph applicable to such entity, and no 

13 order issued pursuant to this section shall impose 

14 any additional obligations on, or require additional 

15 actions by, such entity. 

16 (5) ACTIONS PURSUANT TO COURT ORDER.— 

17 (A) IMMUNITY FROM SUIT.—No cause of 

18 action shall lie in any Federal or State court or 

19 administrative agency against any entity receiv20 ing a court order issued under this subsection, 

21 or against any director, officer, employee, or 

22 agent thereof, for any act reasonably designed 

23 to comply with this subsection or reasonably 

24 arising from such order, other than in an action 

25 pursuant to subsection (e). 


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1 (B) IMMUNITY FROM LIABILITY.—Any en2 tity receiving an order under this subsection, 

3 and any director, officer, employee, or agent 

4 thereof, shall not be liable to any party for any 

5 acts reasonably designed to comply with this 

6 subsection or reasonably arising from such 

7 order, other than in an action pursuant to sub8 section (e), and any actions taken by customers 

9 of such entity to circumvent any restriction on 

10 access to the Internet domain instituted pursu11 ant to this subsection or any act, failure, or in12 ability to restrict access to an Internet domain 

13 that is the subject of a court order issued pur14 suant to this subsection despite good faith ef15 forts to do so by such entity shall not be used 

16 by any person in any claim or cause of action 

17 against such entity, other than in an action 

18 pursuant to subsection (e). 

19 (e) ENFORCEMENT OF ORDERS.— 

20 (1) IN GENERAL.—In order to compel compli21 ance with this section, the Attorney General may 

22 bring an action for injunctive relief against any 

23 party receiving a court order issued pursuant to this 

24 section that knowingly and willfully fails to comply 

25 with such order. 


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1 (2) RULE OF CONSTRUCTION.—The authority 

2 granted the Attorney General under paragraph (1) 

3 shall be the sole legal remedy for enforcing the obli4 gations under this section of any entity described in 

5 subsection (d). 

6 (3) DEFENSE.—A defendant in an action under 

7 paragraph (1) may establish an affirmative defense 

8 by showing that the defendant does not have the 

9 technical means to comply with the subsection with10 out incurring an unreasonable economic burden, or 

11 that the order is inconsistent with this Act. This 

12 showing shall serve as a defense only to the extent 

13 of such inability to comply or to the extent of such 

14 inconsistency. 

15 (f) MODIFICATION OR VACATION OF ORDERS.— 

16 (1) IN GENERAL.—At any time after the 

17 issuance of an order under subsection (b), a motion 

18 to modify, suspend, or vacate the order may be filed 

19 by— 

20 (A) any person, or owner or operator of 

21 property, bound by the order; 

22 (B) any registrant of the domain name, or 

23 the owner or operator of the Internet site sub24 ject to the order; 


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1 (C) any domain name registrar or registry 

2 that has registered or assigned the domain 

3 name of the Internet site subject to the order; 

4 or 

5 (D) any entity that has received a copy of 

6 an order pursuant to subsection (d) requiring 

7 such entity to take action prescribed in that 

8 subsection. 

9 (2) RELIEF.—Relief under this subsection shall 

10 be proper if the court finds that— 

11 (A) the Internet site associated with the 

12 domain name subject to the order is no longer, 

13 or never was, an Internet site dedicated to in14 fringing activities; or 

15 (B) the interests of justice require that the 

16 order be modified, suspended, or vacated. 

17 (3) CONSIDERATION.—In making a relief deter18 mination under paragraph (2), a court may consider 

19 whether the domain name has expired or has been 

20 re-registered by a different party. 

21 (g) RELATED ACTIONS.—The Attorney General, if al22 leging that an Internet site previously adjudicated to be 

23 an Internet site dedicated to infringing activities is acces24 sible or has been reconstituted at a different domain 

25 name, may commence a related action under this section 


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1 against the additional domain name in the same judicial 

2 district as the previous action. 

3 SEC. 4. ELIMINATING THE FINANCIAL INCENTIVE TO STEAL 

4 INTELLECTUAL PROPERTY ONLINE. 

5 (a) COMMENCEMENT OF AN ACTION.— 

6 (1) IN PERSONAM.—A qualifying plaintiff may 

7 commence an in personam action against— 

8 (A) a registrant of a domain name used by 

9 an Internet site dedicated to infringing activi10 ties; or 

11 (B) an owner or operator of an Internet 

12 site dedicated to infringing activities accessed 

13 through a domain name. 

14 (2) IN REM.—If through due diligence a quali15 fying plaintiff is unable to find a person described 

16 in subparagraphs (A) or (B) of paragraph (1), or no 

17 such person found has an address within a judicial 

18 district of the United States, the Attorney General 

19 may commence an in rem action against a domain 

20 name used by an Internet site dedicated to infring21 ing activities. 

22 (b) ORDERS OF THE COURT.— 

23 (1) IN GENERAL.—On application of a quali24 fying plaintiff following the commencement of an ac25 tion under this section, the court may issue a temVerDate Mar 15 2010 00:29 May 27, 2011 Jkt 099200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6401 E:\BILLS\S968.RS S968

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1 porary restraining order, a preliminary injunction, or 

2 an injunction, in accordance with rule 65 of the Fed3 eral Rules of Civil Procedure, against the domain 

4 name used by an Internet site dedicated to infring5 ing activities, or against a registrant of such domain 

6 name, or the owner or operator of such Internet site 

7 dedicated to infringing activities, to cease and desist 

8 from undertaking any further activity as an Internet 

9 site dedicated to infringing activities, if— 

10 (A) the domain name is registered or as11 signed by a domain name registrar or domain 

12 name registry that located or doing business in 

13 the United States; or 

14 (B)(i) the domain name is used within the 

15 United States to access such Internet site; and 

16 (ii) the Internet site— 

17 (I) conducts business directed to resi18 dents of the United States; and 

19 (II) harms holders of United States 

20 intellectual property rights. 

21 (2) DETERMINATION BY THE COURT.—For pur22 poses of determining whether an Internet site con23 ducts business directed to residents of the United 

24 States under paragraph (1)(B)(ii)(I), a court may 

25 consider, among other indicia, whether— 


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1 (A) the Internet site is providing goods or 

2 services described in section 2(7) to users lo3 cated in the United States; 

4 (B) there is evidence that the Internet site 

5 is not intended to provide— 

6 (i) such goods and services to users 

7 located in the United States; 

8 (ii) access to such goods and services 

9 to users located in the United States; and 

10 (iii) delivery of such goods and serv11 ices to users located in the United States; 

12 (C) the Internet site has reasonable meas13 ures in place to prevent such goods and services 

14 from being accessed from or delivered to the 

15 United States; 

16 (D) the Internet site offers services ob17 tained in the United States; and 

18 (E) any prices for goods and services are 

19 indicated in the currency of the United States. 

20 (c) NOTICE AND SERVICE OF PROCESS.— 

21 (1) IN GENERAL.—Upon commencing an action 

22 under this section, the qualifying plaintiff shall send 

23 a notice of the alleged violation and intent to pro24 ceed under this Act to the registrant of the domain 

25 name of the Internet site— 


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1 (A) at the postal and e-mail address ap2 pearing in the applicable publicly accessible 

3 database of registrations, if any and to the ex4 tent such addresses are reasonably available; 

5 (B) via the postal and e-mail address of 

6 the registrar, registry, or other domain name 

7 registration authority that registered or as8 signed the domain name, to the extent such ad9 dresses are reasonably available; and 

10 (C) in any other such form as the court 

11 finds necessary, including as may be required 

12 by Rule 4(f) of the Federal Rules of Civil Pro13 cedure. 

14 (2) RULE OF CONSTRUCTION.—For purposes of 

15 this section, the actions described in this subsection 

16 shall constitute service of process. 

17 (d) REQUIRED ACTIONS BASED ON COURT OR18 DERS.— 

19 (1) SERVICE.—A qualifying plaintiff, with the 

20 prior approval of the court, may, serve a copy of a 

21 court order issued pursuant to this section on simi22 larly situated entities within each class described in 

23 paragraph (2). Proof of service shall be filed with 

24 the court. 


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1 (2) REASONABLE MEASURES.—After being 

2 served with a copy of an order pursuant to this sub3 section: 

4 (A) FINANCIAL TRANSACTION PRO5 VIDERS.—A financial transaction provider shall 

6 take reasonable measures, as expeditiously as 

7 reasonable, designed to prevent, prohibit, or 

8 suspend its service from completing payment 

9 transactions involving customers located within 

10 the United States and the Internet site associ11 ated with the domain name set forth in the 

12 order. 

13 (B) INTERNET ADVERTISING SERVICES.— 

14 An Internet advertising service that contracts 

15 with the Internet site associated with the do16 main name set forth in the order to provide ad17 vertising to or for that site, or which knowingly 

18 serves advertising to or for such site, shall take 

19 technically feasible and reasonable measures, as 

20 expeditiously as reasonable, designed to— 

21 (i) prevent its service from providing 

22 advertisements to the Internet site associ23 ated with such domain name; or 

24 (ii) cease making available advertise25 ments for that site, or paid or sponsored 


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1 search results, links, or placements that 

2 provide access to the domain name. 

3 (3) COMMUNICATION WITH USERS.—An entity 

4 taking an action described in this subsection shall 

5 determine how to communicate such action to the 

6 entity’s users or customers. 

7 (4) RULE OF CONSTRUCTION.—For purposes of 

8 an action commenced under this section, the obliga9 tions of an entity described in this subsection shall 

10 be limited to the actions set out in each paragraph 

11 or subparagraph applicable to such entity, and no 

12 order issued pursuant to this section shall impose 

13 any additional obligations on, or require additional 

14 actions by, such entity. 

15 (5) ACTIONS PURSUANT TO COURT ORDER.— 

16 (A) IMMUNITY FROM SUIT.—No cause of 

17 action shall lie in any Federal or State court or 

18 administrative agency against any entity receiv19 ing a court order issued under this subsection, 

20 or against any director, officer, employee, or 

21 agent thereof, for any act reasonably designed 

22 to comply with this subsection or reasonably 

23 arising from such order, other than in an action 

24 pursuant to subsection (e). 


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1 (B) IMMUNITY FROM LIABILITY.—Any en2 tity receiving an order under this subsection, 

3 and any director, officer, employee, or agent 

4 thereof, shall not be liable to any party for any 

5 acts reasonably designed to comply with this 

6 subsection or reasonably arising from such 

7 order, other than in an action pursuant to sub8 section (e), and any actions taken by customers 

9 of such entity to circumvent any restriction on 

10 access to the Internet domain instituted pursu11 ant to this subsection or any act, failure, or in12 ability to restrict access to an Internet domain 

13 that is the subject of a court order issued pur14 suant to this subsection despite good faith ef15 forts to do so by such entity shall not be used 

16 by any person in any claim or cause of action 

17 against such entity, other than in an action 

18 pursuant to subsection (e). 

19 (e) ENFORCEMENT OF ORDERS.— 

20 (1) IN GENERAL.—In order to compel compli21 ance with this section, the qualifying plaintiff may 

22 bring an action for injunctive relief against any 

23 party receiving a court order issued pursuant to this 

24 section that knowingly and willfully fails to comply 

25 with such order. 


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1 (2) RULE OF CONSTRUCTION.—The authority 

2 granted a qualifying plaintiff under paragraph (1) 

3 shall be the sole legal remedy for enforcing the obli4 gations under this section of any entity described in 

5 subsection (d). 

6 (3) DEFENSE.—A defendant in an action com7 menced under paragraph (1) may establish an af8 firmative defense by showing that the defendant 

9 does not have the technical means to comply with 

10 the subsection without incurring an unreasonable 

11 economic burden, or that the order is inconsistent 

12 with this Act. This showing shall serve as a defense 

13 only to the extent of such inability to comply or to 

14 the extent of such inconsistency. 

15 (f) MODIFICATION OR VACATION OF ORDERS.— 

16 (1) IN GENERAL.—At any time after the 

17 issuance of an order under subsection (b), a motion 

18 to modify, suspend, or vacate the order may be filed 

19 by— 

20 (A) any person, or owner or operator of 

21 property, bound by the order; 

22 (B) any registrant of the domain name, or 

23 the owner or operator of the Internet site sub24 ject to the order; 


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1 (C) any domain name registrar or registry 

2 that has registered or assigned the domain 

3 name of the Internet site subject to the order; 

4 or 

5 (D) any entity that has received a copy of 

6 an order pursuant to subsection (d) requiring 

7 such entity to take action prescribed in that 

8 subsection. 

9 (2) RELIEF.—Relief under this subsection shall 

10 be proper if the court finds that— 

11 (A) the Internet site associated with the 

12 domain name subject to the order is no longer, 

13 or never was, dedicated to infringing activities 

14 as defined in this Act; or 

15 (B) the interests of justice require that the 

16 order be modified, suspended, or vacated. 

17 (3) CONSIDERATION.—In making a relief deter18 mination under paragraph (2), a court may consider 

19 whether the domain name has expired or has been 

20 re-registered by a different party. 

21 (g) RELATED ACTIONS.—A qualifying plaintiff, if al22 leging that an Internet site previously adjudicated to be 

23 an Internet site dedicated to infringing activities is acces24 sible or has been reconstituted at a different domain 

25 name, may commence a related action under this section 


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1 against the additional domain name in the same judicial 

2 district as the previous action. 

3 SEC. 5. VOLUNTARY ACTION AGAINST WEBSITES STEALING 

4 AMERICAN INTELLECTUAL PROPERTY. 

5 (a) IN GENERAL.—No financial transaction provider 

6 or Internet advertising service shall be liable for damages 

7 to any person for voluntarily taking any action described 

8 in section 3(d) or 4(d) with regard to an Internet site if 

9 the entity acting in good faith and based on credible evi10 dence has a reasonable belief that the Internet site is an 

11 Internet site dedicated to infringing activities. 

12 (b) INTERNET SITES ENGAGED IN INFRINGING AC13 TIVITIES THAT ENDANGER THE PUBLIC HEALTH.— 

14 (1) REFUSAL OF SERVICE.—A domain name 

15 registry, domain name registrar, financial trans16 action provider, information location tool, or Inter17 net advertising service, acting in good faith and 

18 based on credible evidence, may stop providing or 

19 refuse to provide services to an infringing Internet 

20 site that endangers the public health. 

21 (2) IMMUNITY FROM LIABILITY.—An entity de22 scribed in paragraph (1), including its directors, offi23 cers, employees, or agents, that ceases or refused to 

24 provide services under paragraph (1) shall not be 


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1 liable to any party under any Federal or State law 

2 for such action. 

3 (3) DEFINITIONS.—For purposes of this sub4 section— 

5 (A) the term ‘‘adulterated’’ has the same 

6 meaning as in section 501 of the Federal Food, 

7 Drug, and Cosmetic Act (21 U.S.C. 351); 

8 (B) an ‘‘infringing Internet site that en9 dangers the public health’’ means— 

10 (i) an Internet site dedicated to in11 fringing activities for which the counterfeit 

12 products that it offers, sells, dispenses, or 

13 distributes are controlled or non-controlled 

14 prescription medication; or 

15 (ii) an Internet site that has no sig16 nificant use other than, or is designed, op17 erated, or marketed by its operator or per18 sons operating in concert with the oper19 ator, and facts or circumstances suggest is 

20 used, primarily as a means for— 

21 (I) offering, selling, dispensing, 

22 or distributing any controlled or non23 controlled prescription medication, 

24 and does so regularly without a valid 

25 prescription; or 


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1 (II) offering, selling, dispensing, 

2 or distributing any controlled or non3 controlled prescription medication, 

4 and does so regularly for medication 

5 that is adulterated or misbranded; 

6 (C) the term ‘‘misbranded’’ has the same 

7 meaning as in section 502 of the Federal Food, 

8 Drug, and Cosmetic Act (21 U.S.C. 352); and 

9 (D) the term ‘‘valid prescription’’ has the 

10 same meaning as in section 309(e)(2)(A) of the 

11 Controlled Substances Act (21 U.S.C. 

12 829(e)(2)(A)). 

13 SEC. 6. SAVINGS CLAUSES. 

14 (a) RULE OF CONSTRUCTION RELATING TO CIVIL

15 AND CRIMINAL REMEDIES.—Nothing in this Act shall be 

16 construed to limit or expand civil or criminal remedies 

17 available to any person (including the United States) for 

18 infringing activities on the Internet pursuant to any other 

19 Federal or State law. 

20 (b) RULE OF CONSTRUCTION RELATING TO VICARI21 OUS OR CONTRIBUTORY LIABILITY.—Nothing in this Act 

22 shall be construed to enlarge or diminish vicarious or con23 tributory liability for any cause of action available under 

24 title 17, United States Code, including any limitations on 

25 liability under section 512 of such title 17, or to create 


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1 an obligation to take action pursuant to section 5 of this 

2 Act. 

3 (c) RELATIONSHIP WITH SECTION 512 OF TITLE

4 17.—Nothing in this Act, and no order issued or served 

5 pursuant to sections 3 or 4 of this Act, shall serve as a 

6 basis for determining the application of section 512 of title 

7 17, United States Code. 

8 SEC. 7. GUIDELINES AND STUDIES. 

9 (a) GUIDELINES.—The Attorney General shall— 

10 (1) publish procedures developed in consultation 

11 with other relevant law enforcement agencies, includ12 ing the United States Immigration and Customs En13 forcement, to receive information from the public 

14 about Internet sites dedicated to infringing activi15 ties; 

16 (2) provide guidance to intellectual property 

17 rights holders about what information such rights 

18 holders should provide law enforcement agencies to 

19 initiate an investigation pursuant to this Act; 

20 (3) provide guidance to intellectual property 

21 rights holders about how to supplement an ongoing 

22 investigation initiated pursuant to this Act; 

23 (4) establish standards for prioritization of ac24 tions brought under this Act; 


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1 (5) provide appropriate resources and proce2 dures for case management and development to af3 fect timely disposition of actions brought under this 

4 Act; and 

5 (6) develop a deconfliction process in consulta6 tion with other law enforcement agencies, including 

7 the United States Immigration and Customs En8 forcement, to coordinate enforcement activities 

9 brought under this Act. 

10 (b) REPORTS.— 

11 (1) REPORT ON EFFECTIVENESS OF CERTAIN

12 MEASURES.—Not later than 1 year after the date of 

13 enactment of this Act, the Secretary of Commerce, 

14 in coordination with the Attorney General, the Sec15 retary of Homeland Security, and the Intellectual 

16 Property Enforcement Coordinator, shall conduct a 

17 study and report to the Committee on the Judiciary 

18 of the Senate and the Committee on the Judiciary 

19 of the House of Representatives on the following: 

20 (A) An assessment of the effects, if any, of 

21 the implementation of section 3(d)(2)(A) on the 

22 accessibility of Internet sites dedicated to in23 fringing activity. 

24 (B) An assessment of the effects, if any, of 

25 the implementation of section 3(d)(2)(A) on the 


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1 deployment, security, and reliability of the do2 main name system and associated Internet 

3 processes, including Domain Name System Se4 curity Extensions. 

5 (C) Recommendations, if any, for modi6 fying or amending this Act to increase effective7 ness or ameliorate any unintended effects of 

8 section 3(d)(2)(A). 

9 (2) REPORT ON OVERALL EFFECTIVENESS.— 

10 The Register of Copyrights shall, in consultation 

11 with the appropriate departments and agencies of 

12 the United States and other stakeholders— 

13 (A) conduct a study on— 

14 (i) the enforcement and effectiveness 

15 of this Act; and 

16 (ii) the need to modify or amend this 

17 Act to apply to emerging technologies; and 

18 (B) not later than 2 years after the date 

19 of enactment of this Act, submit a report to the 

20 Committee on the Judiciary of the Senate and 

21 the Committee on the Judiciary of the House of 

22 Representatives on— 

23 (i) the results of the study conducted 

24 under subparagraph (A); and 


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1 (ii) any recommendations that the 

2 Register may have as a result of the study. 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Preventing Real Online 

5 Threats to Economic Creativity and Theft of Intellectual 

6 Property Act of 2011’’ or the ‘‘PROTECT IP Act of 2011’’. 

7 SEC. 2. DEFINITIONS. 

8 For purposes of this Act— 

9 (1) the term ‘‘domain name’’ has the same mean10 ing as in section 45 of the Lanham Act (15 U.S.C. 

11 1127); 

12 (2) the term ‘‘domain name system server’’ 

13 means a server or other mechanism used to provide 

14 the Internet protocol address associated with a do15 main name; 

16 (3) the term ‘‘financial transaction provider’’ 

17 has the same meaning as in section 5362(4) of title 

18 31, United States Code; 

19 (4) the term ‘‘information location tool’’ has the 

20 same meaning as described in subsection (d) of sec21 tion 512 of title 17, United States Code; 

22 (5) the term ‘‘Internet advertising service’’ 

23 means a service that for compensation sells, pur24 chases, brokers, serves, inserts, verifies, or clears the 

25 placement of an advertisement, including a paid or 


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1 sponsored search result, link, or placement that is 

2 rendered in viewable form for any period of time on 

3 an Internet site; 

4 (6) the term ‘‘Internet site’’ means the collection 

5 of digital assets, including links, indexes, or pointers 

6 to digital assets, accessible through the Internet that 

7 are addressed relative to a common domain name; 

8 (7) the term ‘‘Internet site dedicated to infring9 ing activities’’ means an Internet site that— 

10 (A) has no significant use other than engag11 ing in, enabling, or facilitating the— 

12 (i) reproduction, distribution, or public 

13 performance of copyrighted works, in com14 plete or substantially complete form, in a 

15 manner that constitutes copyright infringe16 ment under section 501 of title 17, United 

17 States Code; 

18 (ii) violation of section 1201 of title 

19 17, United States Code; or 

20 (iii) sale, distribution, or promotion of 

21 goods, services, or materials bearing a coun22 terfeit mark, as that term is defined in sec23 tion 34(d) of the Lanham Act; or 

24 (B) is designed, operated, or marketed by its 

25 operator or persons operating in concert with the 


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1 operator, and facts or circumstances suggest is 

2 used, primarily as a means for engaging in, ena3 bling, or facilitating the activities described 

4 under clauses (i), (ii), or (iii) of subparagraph 

5 (A); 

6 (8) the term ‘‘Lanham Act’’ means the Act enti7 tled ‘‘An Act to provide for the registration and pro8 tection of trademarks used in commerce, to carry out 

9 the provisions of certain international conventions, 

10 and for other purposes’’, approved July 5, 1946 (com11 monly referred to as the ‘‘Trademark Act of 1946’’ or 

12 the ‘‘Lanham Act’’); 

13 (9) the term ‘‘nondomestic domain name’’ means 

14 a domain name for which the domain name registry 

15 that issued the domain name and operates the rel16 evant top level domain, and the domain name reg17 istrar for the domain name, are not located in the 

18 United States; 

19 (10) the term ‘‘owner’’ or ‘‘operator’’ when used 

20 in connection with an Internet site shall include, re21 spectively, any owner of a majority interest in, or 

22 any person with authority to operate, such Internet 

23 site; and 

24 (11) the term ‘‘qualifying plaintiff’’ means— 


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1 (A) the Attorney General of the United 

2 States; or 

3 (B) an owner of an intellectual property 

4 right, or one authorized to enforce such right, 

5 harmed by the activities of an Internet site dedi6 cated to infringing activities occurring on that 

7 Internet site. 

8 SEC. 3. ENHANCING ENFORCEMENT AGAINST ROGUE 

9 WEBSITES OPERATED AND REGISTERED 

10 OVERSEAS. 

11 (a) COMMENCEMENT OF AN ACTION.— 

12 (1) IN PERSONAM.—The Attorney General may 

13 commence an in personam action against— 

14 (A) a registrant of a nondomestic domain 

15 name used by an Internet site dedicated to in16 fringing activities; or 

17 (B) an owner or operator of an Internet site 

18 dedicated to infringing activities accessed 

19 through a nondomestic domain name. 

20 (2) IN REM.—If through due diligence the Attor21 ney General is unable to find a person described in 

22 subparagraphs (A) or (B) of paragraph (1), or no 

23 such person found has an address within a judicial 

24 district of the United States, the Attorney General 

25 may commence an in rem action against a nonVerDate Mar 15 2010 00:29 May 27, 2011 Jkt 099200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6203 E:\BILLS\S968.RS S968

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1 domestic domain name used by an Internet site dedi2 cated to infringing activities. 

3 (3) IDENTIFICATION OF ENTITIES.—Any action 

4 commenced by the Attorney General under this sec5 tion shall identify the entities which may be required 

6 to take actions pursuant to subsection (d) if an order 

7 issues pursuant to subsection (b). 

8 (b) ORDERS OF THE COURT.— 

9 (1) IN GENERAL.—On application of the Attor10 ney General following the commencement of an action 

11 under this section, the court may issue a temporary 

12 restraining order, a preliminary injunction, or an in13 junction, in accordance with rule 65 of the Federal 

14 Rules of Civil Procedure, against the nondomestic do15 main name used by an Internet site dedicated to in16 fringing activities, or against a registrant of such do17 main name, or the owner or operator of such Internet 

18 site dedicated to infringing activities, to cease and de19 sist from undertaking any further activity as an 

20 Internet site dedicated to infringing activities, if— 

21 (A) the domain name is used within the 

22 United States to access such Internet site; and 

23 (B) the Internet site— 

24 (i) conducts business directed to resi25 dents of the United States; and 


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1 (ii) harms holders of United States in2 tellectual property rights. 

3 (2) DETERMINATION BY THE COURT.—For pur4 poses of determining whether an Internet site con5 ducts business directed to residents of the United 

6 States under paragraph (1)(B)(i), a court may con7 sider, among other indicia, whether— 

8 (A) the Internet site is providing goods or 

9 services described in section 2(7) to users located 

10 in the United States; 

11 (B) there is evidence that the Internet site 

12 is not intended to provide— 

13 (i) such goods and services to users lo14 cated in the United States; 

15 (ii) access to such goods and services to 

16 users located in the United States; and 

17 (iii) delivery of such goods and services 

18 to users located in the United States; 

19 (C) the Internet site has reasonable meas20 ures in place to prevent such goods and services 

21 from being accessed from or delivered to the 

22 United States; 

23 (D) the Internet site offers services obtained 

24 in the United States; and 


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1 (E) any prices for goods and services are 

2 indicated in the currency of the United States. 

3 (c) NOTICE AND SERVICE OF PROCESS.— 

4 (1) IN GENERAL.—Upon commencing an action 

5 under this section, the Attorney General shall send a 

6 notice of the alleged violation and intent to proceed 

7 under this Act to the registrant of the domain name 

8 of the Internet site— 

9 (A) at the postal and e-mail address ap10 pearing in the applicable publicly accessible 

11 database of registrations, if any and to the ex12 tent such addresses are reasonably available; 

13 (B) via the postal and e-mail address of the 

14 registrar, registry, or other domain name reg15 istration authority that registered or assigned 

16 the domain name, to the extent such addresses 

17 are reasonably available; and 

18 (C) in any other such form as the court 

19 finds necessary, including as may be required by 

20 Rule 4(f) of the Federal Rules of Civil Procedure. 

21 (2) RULE OF CONSTRUCTION.—For purposes of 

22 this section, the actions described in this subsection 

23 shall constitute service of process. 

24 (3) OTHER NOTICE.—Upon commencing an ac25 tion under this section, the Attorney General shall 


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1 also provide notice to entities identified in the com2 plaint, or any amendments thereto, which may be re3 quired to take action pursuant to subsection (d). 

4 (d) REQUIRED ACTIONS BASED ON COURT ORDERS.— 

5 (1) SERVICE.—A Federal law enforcement offi6 cer, with the prior approval of the court, may serve 

7 a copy of a court order issued pursuant to this section 

8 on similarly situated entities within each class de9 scribed in paragraph (2), which have been identified 

10 in the complaint, or any amendments thereto, pursu11 ant to subsection (a). Proof of service shall be filed 

12 with the court. 

13 (2) REASONABLE MEASURES.—After being served 

14 with a copy of an order pursuant to this subsection: 

15 (A) OPERATORS.— 

16 (i) IN GENERAL.—An operator of a 

17 nonauthoritative domain name system serv18 er shall take the least burdensome tech19 nically feasible and reasonable measures de20 signed to prevent the domain name de21 scribed in the order from resolving to that 

22 domain name’s Internet protocol address, 

23 except that— 

24 (I) such operator shall not be re25 quired— 


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1 (aa) other than as directed 

2 under this subparagraph, to mod3 ify its network, software, systems, 

4 or facilities; 

5 (bb) to take any measures 

6 with respect to domain name 

7 lookups not performed by its own 

8 domain name server or domain 

9 name system servers located out10 side the United States; or 

11 (cc) to continue to prevent 

12 access to a domain name to which 

13 access has been effectively disable 

14 by other means; and 

15 (II) nothing in this subparagraph 

16 shall affect the limitation on the liabil17 ity of such an operator under section 

18 512 of title 17, United States Code. 

19 (ii) TEXT OF NOTICE.—The Attorney 

20 General shall prescribe the text of the notice 

21 displayed to users or customers of an oper22 ator taking an action pursuant to this sub23 paragraph. Such text shall specify that the 

24 action is being taken pursuant to a court 

25 order obtained by the Attorney General. 


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1 (B) FINANCIAL TRANSACTION PROVIDERS.— 

2 A financial transaction provider shall take rea3 sonable measures, as expeditiously as reasonable, 

4 designed to prevent, prohibit, or suspend its serv5 ice from completing payment transactions in6 volving customers located within the United 

7 States and the Internet site associated with the 

8 domain name set forth in the order. 

9 (C) INTERNET ADVERTISING SERVICES.—An 

10 Internet advertising service that contracts with 

11 the Internet site associated with the domain 

12 name set forth in the order to provide adver13 tising to or for that site, or which knowingly 

14 serves advertising to or for such site, shall take 

15 technically feasible and reasonable measures, as 

16 expeditiously as reasonable, designed to— 

17 (i) prevent its service from providing 

18 advertisements to the Internet site associ19 ated with such domain name; or 

20 (ii) cease making available advertise21 ments for that site, or paid or sponsored 

22 search results, links or other placements 

23 that provide access to the domain name. 

24 (D) INFORMATION LOCATION TOOLS.—An 

25 service provider of an information location tool 


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1 shall take technically feasible and reasonable 

2 measures, as expeditiously as possible, to— 

3 (i) remove or disable access to the 

4 Internet site associated with the domain 

5 name set forth in the order; or 

6 (ii) not serve a hypertext link to such 

7 Internet site. 

8 (3) COMMUNICATION WITH USERS.—Except as 

9 provided under paragraph (2)(A)(ii), an entity tak10 ing an action described in this subsection shall deter11 mine whether and how to communicate such action to 

12 the entity’s users or customers. 

13 (4) RULE OF CONSTRUCTION.—For purposes of 

14 an action commenced under this section, the obliga15 tions of an entity described in this subsection shall be 

16 limited to the actions set out in each paragraph or 

17 subparagraph applicable to such entity, and no order 

18 issued pursuant to this section shall impose any addi19 tional obligations on, or require additional actions 

20 by, such entity. 

21 (5) ACTIONS PURSUANT TO COURT ORDER.— 

22 (A) IMMUNITY FROM SUIT.—No cause of ac23 tion shall lie in any Federal or State court or 

24 administrative agency against any entity receiv25 ing a court order issued under this subsection, or 


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1 against any director, officer, employee, or agent 

2 thereof, for any act reasonably designed to com3 ply with this subsection or reasonably arising 

4 from such order, other than in an action pursu5 ant to subsection (e). 

6 (B) IMMUNITY FROM LIABILITY.—Any enti7 ty receiving an order under this subsection, and 

8 any director, officer, employee, or agent thereof, 

9 shall not be liable to any party for any acts rea10 sonably designed to comply with this subsection 

11 or reasonably arising from such order, other 

12 than in an action pursuant to subsection (e), 

13 and any actions taken by customers of such enti14 ty to circumvent any restriction on access to the 

15 Internet domain instituted pursuant to this sub16 section or any act, failure, or inability to restrict 

17 access to an Internet domain that is the subject 

18 of a court order issued pursuant to this sub19 section despite good faith efforts to do so by such 

20 entity shall not be used by any person in any 

21 claim or cause of action against such entity, 

22 other than in an action pursuant to subsection 

23 (e). 

24 (e) ENFORCEMENT OF ORDERS.— 


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1 (1) IN GENERAL.—In order to compel compliance 

2 with this section, the Attorney General may bring an 

3 action for injunctive relief against any party receiv4 ing a court order issued pursuant to this section that 

5 knowingly and willfully fails to comply with such 

6 order. 

7 (2) RULE OF CONSTRUCTION.—The authority 

8 granted the Attorney General under paragraph (1) 

9 shall be the sole legal remedy for enforcing the obliga10 tions under this section of any entity described in 

11 subsection (d). 

12 (3) DEFENSE.—A defendant in an action under 

13 paragraph (1) may establish an affirmative defense 

14 by showing that the defendant does not have the tech15 nical means to comply with the subsection without in16 curring an unreasonable economic burden, or that the 

17 order is inconsistent with this Act. This showing shall 

18 serve as a defense only to the extent of such inability 

19 to comply or to the extent of such inconsistency. 

20 (f) MODIFICATION OR VACATION OF ORDERS.— 

21 (1) IN GENERAL.—At any time after the issuance 

22 of an order under subsection (b), a motion to modify, 

23 suspend, or vacate the order may be filed by— 

24 (A) any person, or owner or operator of 

25 property, bound by the order; 


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1 (B) any registrant of the domain name, or 

2 the owner or operator of the Internet site subject 

3 to the order; 

4 (C) any domain name registrar or registry 

5 that has registered or assigned the domain name 

6 of the Internet site subject to the order; or 

7 (D) any entity that has received a copy of 

8 an order pursuant to subsection (d) requiring 

9 such entity to take action prescribed in that sub10 section. 

11 (2) RELIEF.—Relief under this subsection shall 

12 be proper if the court finds that— 

13 (A) the Internet site associated with the do14 main name subject to the order is no longer, or 

15 never was, an Internet site dedicated to infring16 ing activities; or 

17 (B) the interests of justice require that the 

18 order be modified, suspended, or vacated. 

19 (3) CONSIDERATION.—In making a relief deter20 mination under paragraph (2), a court may consider 

21 whether the domain name has expired or has been re22 registered by a different party. 

23 (4) INTERVENTION.—An entity identified pursu24 ant to subsection (a) as an entity which may be re25 quired to take action pursuant to subsection (d) if an 


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1 order issues pursuant to subsection (b) may intervene 

2 at any time in any action commenced under sub3 section (a), or in any action to modify, suspend, or 

4 vacate an order pursuant to this subsection. Failure 

5 to intervene in an action does not prohibit an entity 

6 notified of the action from subsequently seeking an 

7 order to modify, suspend, or terminate an order 

8 issued by the court under this Act. 

9 (g) RELATED ACTIONS.—The Attorney General, if al10 leging that an Internet site previously adjudicated to be an 

11 Internet site dedicated to infringing activities is accessible 

12 or has been reconstituted at a different domain name, may 

13 commence a related action under this section against the 

14 additional domain name in the same judicial district as 

15 the previous action. 

16 SEC. 4. ELIMINATING THE FINANCIAL INCENTIVE TO STEAL 

17 INTELLECTUAL PROPERTY ONLINE. 

18 (a) COMMENCEMENT OF AN ACTION.— 

19 (1) IN PERSONAM.—A qualifying plaintiff may 

20 commence an in personam action against— 

21 (A) a registrant of a domain name used by 

22 an Internet site dedicated to infringing activi23 ties; or 


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1 (B) an owner or operator of an Internet site 

2 dedicated to infringing activities accessed 

3 through a domain name. 

4 (2) IN REM.—If through due diligence a quali5 fying plaintiff is unable to find a person described in 

6 subparagraphs (A) or (B) of paragraph (1), or no 

7 such person found has an address within a judicial 

8 district of the United States, the qualifying plaintiff 

9 may commence an in rem action against a domain 

10 name used by an Internet site dedicated to infringing 

11 activities. 

12 (3) IDENTIFICATION OF ENTITIES.—Any action 

13 commenced by a qualifying plaintiff under this sec14 tion shall identify the entities which may be required 

15 to take actions pursuant to subsection (d) if an order 

16 issues pursuant to subsection (b). 

17 (b) ORDERS OF THE COURT.— 

18 (1) IN GENERAL.—On application of a quali19 fying plaintiff following the commencement of an ac20 tion under this section, the court may issue a tem21 porary restraining order, a preliminary injunction, 

22 or an injunction, in accordance with rule 65 of the 

23 Federal Rules of Civil Procedure, against the domain 

24 name used by an Internet site dedicated to infringing 

25 activities, or against a registrant of such domain 


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1 name, or the owner or operator of such Internet site 

2 dedicated to infringing activities, to cease and desist 

3 from undertaking any further activity as an Internet 

4 site dedicated to infringing activities, if— 

5 (A) the domain name is registered or as6 signed by a domain name registrar or domain 

7 name registry that located or doing business in 

8 the United States; or 

9 (B)(i) the domain name is used within the 

10 United States to access such Internet site; and 

11 (ii) the Internet site— 

12 (I) conducts business directed to resi13 dents of the United States; and 

14 (II) harms holders of United States in15 tellectual property rights. 

16 (2) DETERMINATION BY THE COURT.—For pur17 poses of determining whether an Internet site con18 ducts business directed to residents of the United 

19 States under paragraph (1)(B)(ii)(I), a court may 

20 consider, among other indicia, whether— 

21 (A) the Internet site is providing goods or 

22 services described in section 2(7) to users located 

23 in the United States; 

24 (B) there is evidence that the Internet site 

25 is not intended to provide— 


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1 (i) such goods and services to users lo2 cated in the United States; 

3 (ii) access to such goods and services to 

4 users located in the United States; and 

5 (iii) delivery of such goods and services 

6 to users located in the United States; 

7 (C) the Internet site has reasonable meas8 ures in place to prevent such goods and services 

9 from being accessed from or delivered to the 

10 United States; 

11 (D) the Internet site offers services obtained 

12 in the United States; and 

13 (E) any prices for goods and services are 

14 indicated in the currency of the United States. 

15 (c) NOTICE AND SERVICE OF PROCESS.— 

16 (1) IN GENERAL.—Upon commencing an action 

17 under this section, the qualifying plaintiff shall send 

18 a notice of the alleged violation and intent to proceed 

19 under this Act to the registrant of the domain name 

20 of the Internet site— 

21 (A) at the postal and e-mail address ap22 pearing in the applicable publicly accessible 

23 database of registrations, if any and to the ex24 tent such addresses are reasonably available; 


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1 (B) via the postal and e-mail address of the 

2 registrar, registry, or other domain name reg3 istration authority that registered or assigned 

4 the domain name, to the extent such addresses 

5 are reasonably available; and 

6 (C) in any other such form as the court 

7 finds necessary, including as may be required by 

8 Rule 4(f) of the Federal Rules of Civil Procedure. 

9 (2) RULE OF CONSTRUCTION.—For purposes of 

10 this section, the actions described in this subsection 

11 shall constitute service of process. 

12 (3) OTHER NOTICE.—Upon commencing an ac13 tion under this section, the qualifying plaintiff shall 

14 also provide notice to entities identified in the com15 plaint, or any amendments thereto, which may be re16 quired to take action pursuant to subsection (d). 

17 (d) REQUIRED ACTIONS BASED ON COURT ORDERS.— 

18 (1) SERVICE.—A qualifying plaintiff, with the 

19 prior approval of the court, may, serve a copy of a 

20 court order issued pursuant to this section on simi21 larly situated entities within each class described in 

22 paragraph (2), which have been identified in the com23 plaint, or any amendments thereto, pursuant to sub24 section (a). Proof of service shall be filed with the 

25 court. 


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1 (2) REASONABLE MEASURES.—After being served 

2 with a copy of an order pursuant to this subsection: 

3 (A) FINANCIAL TRANSACTION PROVIDERS.— 

4 A financial transaction provider shall take rea5 sonable measures, as expeditiously as reasonable, 

6 designed to prevent, prohibit, or suspend its serv7 ice from completing payment transactions in8 volving customers located within the United 

9 States and the Internet site associated with the 

10 domain name set forth in the order. 

11 (B) INTERNET ADVERTISING SERVICES.—An 

12 Internet advertising service that contracts with 

13 the Internet site associated with the domain 

14 name set forth in the order to provide adver15 tising to or for that site, or which knowingly 

16 serves advertising to or for such site, shall take 

17 technically feasible and reasonable measures, as 

18 expeditiously as reasonable, designed to— 

19 (i) prevent its service from providing 

20 advertisements to the Internet site associ21 ated with such domain name; or 

22 (ii) cease making available advertise23 ments for that site, or paid or sponsored 

24 search results, links, or placements that pro25 vide access to the domain name. 


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1 (3) COMMUNICATION WITH USERS.—An entity 

2 taking an action described in this subsection shall de3 termine how to communicate such action to the enti4 ty’s users or customers. 

5 (4) RULE OF CONSTRUCTION.—For purposes of 

6 an action commenced under this section, the obliga7 tions of an entity described in this subsection shall be 

8 limited to the actions set out in each paragraph or 

9 subparagraph applicable to such entity, and no order 

10 issued pursuant to this section shall impose any addi11 tional obligations on, or require additional actions 

12 by, such entity. 

13 (5) ACTIONS PURSUANT TO COURT ORDER.— 

14 (A) IMMUNITY FROM SUIT.—No cause of ac15 tion shall lie in any Federal or State court or 

16 administrative agency against any entity receiv17 ing a court order issued under this subsection, or 

18 against any director, officer, employee, or agent 

19 thereof, for any act reasonably designed to com20 ply with this subsection or reasonably arising 

21 from such order, other than in an action pursu22 ant to subsection (e). 

23 (B) IMMUNITY FROM LIABILITY.—Any enti24 ty receiving an order under this subsection, and 

25 any director, officer, employee, or agent thereof, 


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1 shall not be liable to any party for any acts rea2 sonably designed to comply with this subsection 

3 or reasonably arising from such order, other 

4 than in an action pursuant to subsection (e), 

5 and any actions taken by customers of such enti6 ty to circumvent any restriction on access to the 

7 Internet domain instituted pursuant to this sub8 section or any act, failure, or inability to restrict 

9 access to an Internet domain that is the subject 

10 of a court order issued pursuant to this sub11 section despite good faith efforts to do so by such 

12 entity shall not be used by any person in any 

13 claim or cause of action against such entity, 

14 other than in an action pursuant to subsection 

15 (e). 

16 (e) ENFORCEMENT OF ORDERS.— 

17 (1) IN GENERAL.—In order to compel compliance 

18 with this section, the qualifying plaintiff may bring 

19 an action for injunctive relief against any party re20 ceiving a court order issued pursuant to this section 

21 that knowingly and willfully fails to comply with 

22 such order. 

23 (2) RULE OF CONSTRUCTION.—The authority 

24 granted a qualifying plaintiff under paragraph (1) 

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1 tions under this section of any entity described in 

2 subsection (d). 

3 (3) DEFENSE.—A defendant in an action com4 menced under paragraph (1) may establish an af5 firmative defense by showing that the defendant does 

6 not have the technical means to comply with the sub7 section without incurring an unreasonable economic 

8 burden, or that the order is inconsistent with this Act. 

9 This showing shall serve as a defense only to the ex10 tent of such inability to comply or to the extent of 

11 such inconsistency. 

12 (f) MODIFICATION OR VACATION OF ORDERS.— 

13 (1) IN GENERAL.—At any time after the issuance 

14 of an order under subsection (b), a motion to modify, 

15 suspend, or vacate the order may be filed by— 

16 (A) any person, or owner or operator of 

17 property, bound by the order; 

18 (B) any registrant of the domain name, or 

19 the owner or operator of the Internet site subject 

20 to the order; 

21 (C) any domain name registrar or registry 

22 that has registered or assigned the domain name 

23 of the Internet site subject to the order; or 

24 (D) any entity that has received a copy of 

25 an order pursuant to subsection (d) requiring 


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1 such entity to take action prescribed in that sub2 section. 

3 (2) RELIEF.—Relief under this subsection shall 

4 be proper if the court finds that— 

5 (A) the Internet site associated with the do6 main name subject to the order is no longer, or 

7 never was, dedicated to infringing activities as 

8 defined in this Act; or 

9 (B) the interests of justice require that the 

10 order be modified, suspended, or vacated. 

11 (3) CONSIDERATION.—In making a relief deter12 mination under paragraph (2), a court may consider 

13 whether the domain name has expired or has been re14 registered by a different party. 

15 (4) INTERVENTION.—An entity identified pursu16 ant to subsection (a) as an entity which may be re17 quired to take action pursuant to subsection (d) if an 

18 order issues pursuant to subsection (b) may intervene 

19 at any time in any action commenced under sub20 section (a), or in any action to modify, suspend, or 

21 vacate an order pursuant to this subsection. Failure 

22 to intervene in an action does not prohibit an entity 

23 notified of the action from subsequently seeking an 

24 order to modify, suspend, or terminate an order 

25 issued by the court under this Act. 


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1 (g) RELATED ACTIONS.—A qualifying plaintiff, if al2 leging that an Internet site previously adjudicated to be an 

3 Internet site dedicated to infringing activities is accessible 

4 or has been reconstituted at a different domain name, may 

5 commence a related action under this section against the 

6 additional domain name in the same judicial district as 

7 the previous action. 

8 SEC. 5. VOLUNTARY ACTION AGAINST WEBSITES STEALING 

9 AMERICAN INTELLECTUAL PROPERTY. 

10 (a) IN GENERAL.—No financial transaction provider 

11 or Internet advertising service shall be liable for damages 

12 to any person for voluntarily taking any action described 

13 in section 3(d) or 4(d) with regard to an Internet site if 

14 the entity acting in good faith and based on credible evi15 dence has a reasonable belief that the Internet site is an 

16 Internet site dedicated to infringing activities. 

17 (b) INTERNET SITES ENGAGED IN INFRINGING ACTIVI18 TIES THAT ENDANGER THE PUBLIC HEALTH.— 

19 (1) REFUSAL OF SERVICE.—A domain name reg20 istry, domain name registrar, financial transaction 

21 provider, information location tool, or Internet adver22 tising service, acting in good faith and based on cred23 ible evidence, may stop providing or refuse to provide 

24 services to an infringing Internet site that endangers 

25 the public health. 


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1 (2) IMMUNITY FROM LIABILITY.—An entity de2 scribed in paragraph (1), including its directors, offi3 cers, employees, or agents, that ceases or refused to 

4 provide services under paragraph (1) shall not be lia5 ble to any party under any Federal or State law for 

6 such action. 

7 (3) DEFINITIONS.—For purposes of this sub8 section— 

9 (A) the term ‘‘adulterated’’ has the same 

10 meaning as in section 501 of the Federal Food, 

11 Drug, and Cosmetic Act (21 U.S.C. 351); 

12 (B) an ‘‘infringing Internet site that endan13 gers the public health’’ means— 

14 (i) an Internet site dedicated to in15 fringing activities for which the counterfeit 

16 products that it offers, sells, dispenses, or 

17 distributes are controlled or non-controlled 

18 prescription medication; or 

19 (ii) an Internet site that has no sig20 nificant use other than, or is designed, oper21 ated, or marketed by its operator or persons 

22 operating in concert with the operator, and 

23 facts or circumstances suggest is used, pri24 marily as a means for— 


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1 (I) offering, selling, dispensing, or 

2 distributing any controlled or non-con3 trolled prescription medication, and 

4 does so regularly without a valid pre5 scription; or 

6 (II) offering, selling, dispensing, 

7 or distributing any controlled or non8 controlled prescription medication, and 

9 does so regularly for medication that is 

10 adulterated or misbranded; 

11 (C) the term ‘‘misbranded’’ has the same 

12 meaning as in section 502 of the Federal Food, 

13 Drug, and Cosmetic Act (21 U.S.C. 352); and 

14 (D) the term ‘‘valid prescription’’ has the 

15 same meaning as in section 309(e)(2)(A) of the 

16 Controlled Substances Act (21 U.S.C. 

17 829(e)(2)(A)). 

18 SEC. 6. SAVINGS CLAUSES. 

19 (a) RULE OF CONSTRUCTION RELATING TO CIVIL AND

20 CRIMINAL REMEDIES.—Nothing in this Act shall be con21 strued to limit or expand civil or criminal remedies avail22 able to any person (including the United States) for in23 fringing activities on the Internet pursuant to any other 

24 Federal or State law. 


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1 (b) RULE OF CONSTRUCTION RELATING TO VICARIOUS

2 OR CONTRIBUTORY LIABILITY.—Nothing in this Act shall 

3 be construed to enlarge or diminish vicarious or contribu4 tory liability for any cause of action available under the 

5 Lanham Act or title 17, United States Code, including any 

6 limitations on liability under section 512 of such title 17, 

7 or to create an obligation to take action pursuant to section 

8 5 of this Act. 

9 (c) RELATIONSHIP WITH SECTION 512 OF TITLE 17.— 

10 Nothing in this Act, no identification of entities in section 

11 3(a) or 4(a), no notice provided pursuant to section 3(c) 

12 or 4(c), no order issued pursuant to sections 3(b) or 4(b), 

13 and no order issued or served pursuant to sections 3(d) or 

14 4(d), shall serve as a basis for determining the application 

15 of section 512 of title 17, United States Code. 

16 SEC. 7. GUIDELINES AND STUDIES. 

17 (a) GUIDELINES.—The Attorney General shall— 

18 (1) publish procedures developed in consultation 

19 with other relevant law enforcement agencies, includ20 ing the United States Immigration and Customs En21 forcement, to receive information from the public 

22 about Internet sites dedicated to infringing activities; 

23 and 

24 (2) develop a deconfliction process in consulta25 tion with other law enforcement agencies, including 


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1 the United States Immigration and Customs Enforce2 ment, to coordinate enforcement activities brought 

3 under this Act. 

4 (b) REPORTS.— 

5 (1) REPORT ON EFFECTIVENESS OF CERTAIN

6 MEASURES.—Not later than 1 year after the date of 

7 enactment of this Act, the Secretary of Commerce, in 

8 coordination with the Attorney General, the Secretary 

9 of Homeland Security, and the Intellectual Property 

10 Enforcement Coordinator, shall conduct a study and 

11 report to the Committee on the Judiciary of the Sen12 ate and the Committee on the Judiciary of the House 

13 of Representatives on the following: 

14 (A) An assessment of the effects, if any, of 

15 the implementation of section 3(d)(2)(A) on the 

16 accessibility of Internet sites dedicated to in17 fringing activity. 

18 (B) An assessment of the effects, if any, of 

19 the implementation of section 3(d)(2)(A) on the 

20 deployment, security, and reliability of the do21 main name system and associated Internet proc22 esses, including Domain Name System Security 

23 Extensions. 

24 (C) Recommendations, if any, for modifying 

25 or amending this Act to increase effectiveness or 


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1 ameliorate any unintended effects of section 

2 3(d)(2)(A). 

3 (2) REPORT ON OVERALL EFFECTIVENESS.—The 

4 Register of Copyrights shall, in consultation with the 

5 appropriate departments and agencies of the United 

6 States and other stakeholders— 

7 (A) conduct a study on— 

8 (i) the enforcement and effectiveness of 

9 this Act; 

10 (ii) the burden of carrying out the re11 quirements of this Act, if any, on inter12 mediaries; 

13 (iii) the need for cost reimbursement 

14 for intermediaries for carrying out the re15 quirements of this Act; and 

16 (iv) the need to modify or amend this 

17 Act to apply to emerging technologies; and 

18 (B) not later than 2 years after the date of 

19 enactment of this Act, submit a report to the 

20 Committee on the Judiciary of the Senate and 

21 the Committee on the Judiciary of the House of 

22 Representatives on— 

23 (i) the results of the study conducted 

24 under subparagraph (A); and 


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1 (ii) any recommendations that the 

2 Register may have as a result of the study. 

3 (3) ANNUAL OVERSIGHT REPORT.—Not later 

4 than 1 year after the date of enactment of this Act, 

5 and each year thereafter, the Attorney General shall 

6 report to the Committee on the Judiciary of the Sen7 ate and the Committee on the Judiciary of the House 

8 of Representatives the following information with re9 spect to the preceding year: 

10 (A) Each instance in which an action was 

11 commenced under section 3(a)(1) or 3(a)(2), and 

12 each instance in which an action was com13 menced by the Attorney General under section 

14 4(a)(1) or 4(a)(2), including the name of any 

15 party against whom the action was brought. 

16 (B) Each instance in which a temporary re17 straining order, preliminary injunction or in18 junction was issued pursuant to section 3(b)(1), 

19 and each instance in which a temporary re20 straining order, preliminary injunction or in21 junction was issued pursuant to section 4(b)(1) 

22 in an action commenced by the Attorney Gen23 eral, including the name of any party against 

24 whom the order or injunction was issued. 


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1 (C) Each instance in which an action com2 menced under section 3(a)(1) or 3(a)(2), or an 

3 action commenced by the Attorney General under 

4 section 4(a)(1) or 4(a)(2), was concluded without 

5 the issuance of a temporary restraining order, 

6 preliminary injunction or injunction, including 

7 the reason for the conclusion of the action. 

8 (D) Each proof of service filed with the 

9 court pursuant to section 3(d)(1), or filed pursu10 ant to section 4(d)(1) in an action commenced 

11 by the Attorney General. 

12 (E) Each action for injunctive relief 

13 brought pursuant to section 3(e), or brought pur14 suant to section 4(e) in an action commenced by 

15 the Attorney General, including the name of any 

16 party against whom the action for relief was 

17 brought. 

18 (F) Each motion granted by a court to 

19 modify, suspend or vacate an order that was 

20 filed under section 3(f)(1), or filed under section 

21 4(f)(1) in an action commenced by the Attorney 

22 General, including the relief obtained. 

23 (G) Each related action commenced pursu24 ant to section 3(g), or commenced by the Attor25 ney General pursuant to section 4(g), including 


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1 the name of any party against whom an action 

2 was commenced. 

3 (4) GAO REPORT ON PRIVATE ACTIONS.—Not 

4 later than 1 year after the date of enactment of this 

5 Act, and each year thereafter, the Comptroller General 

6 shall report to the Committee on the Judiciary of the 

7 Senate and the Committee on the Judiciary of the 

8 House of Representative each instance in the previous 

9 year in which an action was commenced under sec10 tions 4(a)(1) or 4(a)(2) by a qualifying plaintiff that 

11 is not the Attorney General, including the names of 

12 any parties to each such action. 

13 SEC. 8. PREVENTING THE IMPORTATION OF COUNTERFEIT 

14 PRODUCTS AND INFRINGING DEVICES. 

15 Notwithstanding section 1905 of title 18, United States 

16 Code— 

17 (1) if United States Customs and Border Protec18 tion suspects a product of being imported or exported 

19 in violation of section 42 of the Lanham Act, and 

20 subject to any applicable bonding requirements, the 

21 Secretary of Homeland Security is authorized to 

22 share information on, and unredacted samples of, 

23 products and their packaging and labels, or photos of 

24 such products, packaging and labels, with the 

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1 ied or simulated, for purposes of determining whether 

2 the products are prohibited from importation pursu3 ant to such section; and 

4 (2) upon seizure of material by United States 

5 Customs and Border Protection imported in violation 

6 of subsection (a)(2) or subsection (b) of section 1201 

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

8 Homeland Security is authorized to share informa9 tion about, and provide samples to affected parties, 

10 subject to any applicable bonding requirements, as to 

11 the seizure of material designed to circumvent techno12 logical measures or protection afforded by a techno13 logical measure that controls access to or protects the 

14 owner’s work protected by copyright under such title. 


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Calendar No. 70 

112TH CONGRESS 

1ST SESSION S. 968 

A BILL 

To prevent online threats to economic creativity 

purposes. and theft of intellectual property, and for other 

MAY 26, 2011 

Reported with an amendment 


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