A Distant Soil by Colleen Doran

The complete text of the bill introduced on September 20.

This bill is not only meant to address entertainment piracy, but online medicine shops as well as widespread counterfeiting of designer products.

Text of S. 3804: Combating Online Infringement and Counterfeits Act

S 3804 IS

111th CONGRESS

2d Session

S. 3804

To combat online infringement, and for other purposes.

IN THE SENATE OF THE UNITED STATES

September 20, 2010

Mr. LEAHY (for himself, Mr. HATCH, Ms. KLOBUCHAR, Mr. WHITEHOUSE, Mr. SCHUMER, Mr. KOHL, Mr. SPECTER, Mr. DURBIN, Mr. BAYH, Mr. VOINOVICH, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To combat online infringement, and for other purposes.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Combating Online Infringement and Counterfeits Act’.

SEC. 2. INTERNET SITES DEDICATED TO INFRINGING ACTIVITIES.

Chapter 113 of title 18, United States Code, is amended by adding at the end the following:

‘Sec. 2324. Internet sites dedicated to infringing activities

‘(a) Definition- For purposes of this section, an Internet site is ‘dedicated to infringing activities’ if such site–

‘(1) is otherwise subject to civil forfeiture to the United States Government under section 2323; or

‘(2) is–

‘(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer–

‘(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or

‘(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled ‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’, approved July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’ or the ‘Lanham Act’; 15 U.S.C. 1116(d)); and

‘(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.

‘(b) Injunctive Relief- On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities to cease and desist from undertaking any infringing activity in violation of this section, in accordance with rule 65 of the Federal Rules of Civil Procedure. A party described in subsection (e) receiving an order issued pursuant to this section shall take the appropriate actions described in subsection (e).

‘(c) In Rem Action-

‘(1) IN GENERAL- The Attorney General may commence an in rem action against any domain name used by an Internet site in the judicial district in which the domain name registrar or domain name registry is located, or, if pursuant to subsection (d)(2), in the District of Columbia, if–

‘(A) the domain name is dedicated to infringing activities; and

‘(B) the Attorney General simultaneously–

‘(i) sends a notice of the alleged violation and intent to proceed under this subsection to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar, if available; and

‘(ii) publishes notice of the action as the court may direct promptly after filing the action.

‘(2) SERVICE OF PROCESS- For purposes of this section, the actions described under paragraph (1)(B) shall constitute service of process.

‘(d) Situs-

‘(1) DOMAINS FOR WHICH THE REGISTRY OR REGISTRAR IS LOCATED DOMESTICALLY- In an in rem action commenced under subsection (c), a domain name shall be deemed to have its situs in the judicial district in which–

‘(A) the domain name registrar or registry is located, provided that for a registry that is located in more than 1 judicial district, venue shall be appropriate at the principal place where the registry operations are performed; or

‘(B) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court.

‘(2) DOMAINS FOR WHICH THE REGISTRY OR REGISTRAR IS NOT LOCATED DOMESTICALLY-

‘(A) ACTION BROUGHT IN DISTRICT OF COLUMBIA- If the provisions of paragraph (1) do not apply to a particular domain name, the in rem action may be brought in the District of Columbia to prevent the importation into the United States of goods and services offered by an Internet site dedicated to infringing activities if–

‘(i) the domain name is used to access such Internet site in the United States; and

‘(ii) the Internet site–

‘(I) conducts business directed to residents of the United States; and

‘(II) harms intellectual property rights holders that are residents of the United States.

‘(B) DETERMINATION BY THE COURT- For purposes of determining whether an Internet site conducts business directed to residents of the United States under subparagraph (A)(ii)(I), a court shall consider, among other indicia whether–

‘(i) the Internet site is actually providing goods or services to subscribers located in the United States;

‘(ii) the Internet site states that it is not intended, and has measures to prevent, infringing material from being accessed in or delivered to the United States;

‘(iii) the Internet site offers services accessible in the United States; and

‘(iv) any prices for goods and services are indicated in the currency of the United States.

‘(e) Service of Court Order-

‘(1) DOMESTIC DOMAINS- In an in rem action to which subsection (d)(1) applies, the Attorney General shall serve any court order issued pursuant to this section on the domain name registrar or, if the domain name registrar is not located within the United States, upon the registry. Upon receipt of such order, the domain name registrar or domain name registry shall suspend operation of, and lock, the domain name.

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