The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or Protect IP Act (S. 968)—introduced by Sens. Patrick J. Leahy (D-Vt.), Orrin G. Hatch (R-Utah), and Chuck E. Grassley (R-Iowa) on May 12—will provide the Justice Department and rights holders with important new tools to crack down on rogue websites dedicated to infringing activities and will protect American companies’ investments in developing brands and consumers, Leahy said on the Senate floor the day of the bill’s introduction.

S. 968—also sponsored by Sens. Chuck Schumer (D-N.Y.), Dianne Feinstein (D-Calif.), Sheldon Whitehouse (D-R.I.), Lindsey Graham (R-S.C.), Herb Kohl (D-Wis.), Chris Coons (D-Del.), and Richard Blumenthal (D-Conn.)—marks a renewed effort on the part of Congress to pass such a bill after similar legislation (S. 3804) passed the Senate Judiciary Committee unanimously, but failed to pass in the full Senate last session (81 PTCJ 744, 4/8/11; 81 PTCJ 513, 2/25/11).

Strong support for the bill came almost immediately from various members of Congress and organizations dedicated to the protection of intellectual property.

New Bill Follows Failed Attempt

Last September, Leahy and Hatch introduced the Combating Online Infringement and Counterfeits Act (S. 3804), which sought to authorize the DOJ to file an in rem civil action against a domain name, and seek a preliminary order from a federal court that the domain name is being used to traffic infringing material (80 PTCJ 679, 9/24/10). The bill would also have provided for safeguards allowing the domain name owner or site operator to petition a court to lift the order, as well as safeguards against abuse by allowing only the Justice Department to initiate an action, and by giving the court the final say about whether any particular website would be cut off.

In November, the Senate Judiciary Committee reported favorably a substitute version of the bill (81 PTCJ 103, 11/26/10), but the full Senate failed to act on the legislation before the congressional term ended.

COICA was not without criticism, with one commentator stating that it would fail because it would not, at a technical level, block rogue websites nor curtail their funding (81 PTCJ 579, 3/4/11).

Bill to Enhance Enforcement Against Overseas Sites

Commenting from the floor on the enhanced enforcement provisions at Section 3 of the Protect IP Act, Leahy said that the legislation:

Thus, under Section 3(b) of S. 968, a court may issue a temporary restraining order, preliminary injunction, or injunction in accordance with Fed. R. Civ. P. 65 against a non-domestic domain name used by an internet site dedicated to infringing activities, or against a registrant of such domain name, or the owner of such site dedicated to infringing activities, to cease and desist from undertaking any further activity as an internet site dedicated to infringing activities, if the domain name is used within the United States to access such internet site and the site conducts business directed to residents of the United States and harms holders of U.S. IP rights.

To determine whether an internet site conducts business directed to residents of the United States under that section, a court may consider, whether (1) the site is providing pirated and/or counterfeit goods and services to users located in the United States; (2) there is evidence that the site is not intended for those same services; (3) the site has reasonable measures in place to prevent such goods and services from being accessed from or delivered to the United States; (4) the site offers services obtained in the United States, and; (5) the prices for goods and services are indicated in dollars.

There are also subsections within Section 3 of S. 968 requesting action from financial transaction providers, internet advertising services, and information location tools.

One subsection says that a financial transaction provider must take reasonable measures designed to prevent, prohibit, or suspend its service from completing payment transactions involving customers located within the United States and the site associated with the domain name set forth in the order.

Operators of internet advertising services are also required under the bill to take technically feasible and reasonable measures to prevent those services from providing advertisements to the site associated with the domain name or cease making available advertisements for that site, or paid or sponsored search results, links or other placements that provide access to the domain name. Information location tools should also take technically feasible and reasonable measures to remove or disable access to the site associated with the domain name set forth in the order or not serve a hypertext link to such a site, according to the bill…

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Intellectual Property Enforcement Coordinator Victoria Espinel—together with Vice President Joseph Biden, Attorney General Eric Holder, Department of Homeland Security Secretary Janet Napolitano, Department of…

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For the second year in a row, an anti-piracy watch list created by the bicameral Congressional International Anti-Piracy Caucus singled out Canada, China, Mexico, Russia, and Spain as countries where…

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