Stop Online Piracy Act - Authorizes the Attorney General (AG) to seek a court order against a U.S.-directed foreign Internet site committing or facilitating online piracy to require the owner, operator, or domain name registrant, or the site or domain name itself if such persons are unable to be found, to cease and desist further activities constituting specified intellectual property offenses under the federal criminal code including criminal copyright infringement, unauthorized fixation and trafficking of sound recordings or videos of live musical performances, the recording of exhibited motion pictures, or trafficking in counterfeit labels, goods, or services.
Sets forth an additional two-step process that allows an intellectual property right holder harmed by a U.S.-directed site dedicated to infringement, or a site promoted or used for infringement under certain circumstances, to first provide a written notification identifying the site to related payment network providers and Internet advertising services requiring such entities to forward the notification and suspend their services to such an identified site unless the site's owner, operator, or domain name registrant, upon receiving the forwarded notification, provides a counter notification explaining that it is not dedicated to engaging in specified violations. Authorizes the right holder to then commence an action for limited injunctive relief against the owner, operator, or domain name registrant, or against the site or domain name itself if such persons are unable to be found, if: (1) such a counter notification is provided (and, if it is a foreign site, includes consent to U.S. jurisdiction to adjudicate whether the site is dedicated to such violations), or (2) a payment network provider or Internet advertising service fails to suspend its services in the absence of such a counter notification.
Requires online service providers, Internet search engines, payment network providers, and Internet advertising services, upon receiving a copy of a court order relating to an AG action, to carry out certain preventative measures including withholding services from an infringing site or preventing users located in the United States from accessing the infringing site. Requires payment network providers and Internet advertising services, upon receiving a copy of such an order relating to a right holder's action, to carry out similar preventative measures.Provides immunity from liability for service providers, payment network providers, Internet advertising services, advertisers, Internet search engines, domain name registries, or domain name registrars that take actions required by this Act or otherwise voluntarily block access to or end financial affiliation with such sites.
Permits such entities to stop or refuse services to certain sites that endanger public health by distributing prescription medication that is adulterated, misbranded, or without a valid prescription.
Expands the offense of criminal copyright infringement to include public performances of: (1) copyrighted work by digital transmission, and (2) work intended for commercial dissemination by making it available on a computer network. Expands the criminal offenses of trafficking in inherently dangerous goods or services to include: (1) counterfeit drugs; and (2) goods or services falsely identified as meeting military standards or intended for use in a national security, law enforcement, or critical infrastructure application.
Increases the penalties for: (1) specified trade secret offenses intended to benefit a foreign government, instrumentality, or agent; and (2) various other intellectual property offenses as amended by this Act.
Directs the U.S. Sentencing Commission to review, and if appropriate, amend related Federal Sentencing Guidelines.
Requires the Secretary of State and Secretary of Commerce to appoint at least one intellectual property attache to be assigned to the U.S. embassy or diplomatic mission in a country in each geographic region covered by a Department of State regional bureau.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3261 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 3261
To promote prosperity, creativity, entrepreneurship, and innovation by
combating the theft of U.S. property, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 26, 2011
Mr. Smith of Texas (for himself and Mr. Conyers, Mr. Goodlatte, Mr.
Berman, Mr. Griffin of Arkansas, Mr. Gallegly, Mr. Deutch, Mr. Chabot,
Mr. Ross of Florida, Mrs. Blackburn, Mrs. Bono Mack, Mr. Terry, and Mr.
Schiff) introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To promote prosperity, creativity, entrepreneurship, and innovation by
combating the theft of U.S. property, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Stop Online Piracy
Act''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Savings and severability clauses.
TITLE I--COMBATING ONLINE PIRACY
Sec. 101. Definitions.
Sec. 102. Action by Attorney General to protect U.S. customers and
prevent U.S. support of foreign infringing
sites.
Sec. 103. Market-based system to protect U.S. customers and prevent
U.S. funding of sites dedicated to theft of
U.S. property.
Sec. 104. Immunity for taking voluntary action against sites dedicated
to theft of U.S. property.
Sec. 105. Immunity for taking voluntary action against sites that
endanger public health.
Sec. 106. Guidelines and study.
Sec. 107. Denying U.S. capital to notorious foreign infringers.
TITLE II--ADDITIONAL ENHANCEMENTS TO COMBAT INTELLECTUAL PROPERTY THEFT
Sec. 201. Streaming of copyrighted works in violation of criminal law.
Sec. 202. Trafficking in inherently dangerous goods or services.
Sec. 203. Protecting U.S. businesses from foreign and economic
espionage.
Sec. 204. Amendments to sentencing guidelines.
Sec. 205. Defending intellectual property rights abroad.
SEC. 2. SAVINGS AND SEVERABILITY CLAUSES.
(a) Savings Clauses.--
(1) First amendment.--Nothing in this Act shall be
construed to impose a prior restraint on free speech or the
press protected under the 1st Amendment to the Constitution.
(2) Title 17 liability.--Nothing in title I shall be
construed to enlarge or diminish liability, including vicarious
or contributory liability, for any cause of action available
under title 17, United States Code, including any limitations
on liability under such title.
(b) Severability.--If any provision of this Act, or the application
of the provision to any person or circumstance, is held to be
unconstitutional, the other provisions or the application of the
provision to other persons or circumstances shall not be affected
thereby.
TITLE I--COMBATING ONLINE PIRACY
SEC. 101. DEFINITIONS.
In this title:
(1) Domain name.--The term ``domain name'' has the meaning
given that term in section 45 of the Lanham Act (15 U.S.C.
1127) and includes any subdomain designation using such domain
name as part of an electronic address on the Internet to
identify a unique online location.
(2) Domain name system server.--The term ``domain name
system server'' means a server or other mechanism used to
provide the Internet protocol address associated with a domain
name.
(3) Domestic domain name.--The term ``domestic domain
name'' means a domain name that is registered or assigned by a
domain name registrar, domain name registry, or other domain
name registration authority, that is located within a judicial
district of the United States.
(4) Domestic internet protocol address.--The term
``domestic Internet Protocol address'' means an Internet
Protocol address for which the corresponding Internet Protocol
allocation entity is located within a judicial district of the
United States.
(5) Domestic internet site.--The term ``domestic Internet
site'' means an Internet site for which the corresponding
domain name or, if there is no domain name, the corresponding
Internet Protocol address, is a domestic domain name or
domestic Internet Protocol address.
(6) Foreign domain name.--The term ``foreign domain name''
means a domain name that is not a domestic domain name.
(7) Foreign internet protocol address.--The term ``foreign
Internet Protocol address'' means an Internet Protocol address
that is not a domestic Internet protocol address.
(8) Foreign internet site.--The term ``foreign Internet
site'' means an Internet site that is not a domestic Internet
site.
(9) Including.--The term ``including'' means including, but
not limited to.
(10) Intellectual property enforcement coordinator.--The
term ``Intellectual Property Enforcement Coordinator'' means
the Intellectual Property Enforcement Coordinator appointed
under section 301 of the Prioritizing Resources and
Organization for Intellectual Property Act of 2008 (15 U.S.C.
8111).
(11) Internet.--The term ``Internet'' has the meaning given
that term in section 5362(5) of title 31, United States Code.
(12) Internet advertising service.--The term ``Internet
advertising service'' means a service that for compensation
sells, purchases, brokers, serves, inserts, verifies, clears,
or otherwise facilitates the placement of an advertisement,
including a paid or sponsored search result, link, or
placement, that is rendered in viewable form for any period of
time on an Internet site.
(13) Internet protocol.--The term ``Internet Protocol''
means a protocol used for communicating data across a packet-
switched internetwork using the Transmission Control Protocol/
Internet Protocol, and includes any predecessor or successor
protocol to such protocol.
(14) Internet protocol address.--The term ``Internet
Protocol address'' means a numerical label that is assigned to
each device that participates in a computer network that uses
the Internet Protocol for communication.
(15) Internet protocol allocation entity.--The term
``Internet Protocol allocation entity'' means, with respect to
a particular Internet Protocol address, the entity, local
internet registry, or regional internet registry to which the
smallest applicable block of Internet Protocol addresses
containing that address is allocated or assigned by a local
internet registry, regional internet registry, or other
Internet Protocol address allocation authority, according to
the applicable publicly available database of allocations and
assignments, if any.
(16) Internet search engine.--The term ``Internet search
engine'' means a service made available via the Internet that
searches, crawls, categorizes, or indexes information or Web
sites available elsewhere on the Internet and on the basis of a
user query or selection that consists of terms, concepts,
categories, questions, or other data returns to the user a
means, such as a hyperlinked list of Uniform Resource Locators,
of locating, viewing, or downloading such information or data
available on the Internet relating to such query or selection.
(17) Internet site.--The term ``Internet site'' means the
collection of digital assets, including links, indexes, or
pointers to digital assets, accessible through the Internet
that are addressed relative to a common domain name or, if
there is no domain name, a common Internet Protocol address.
(18) Lanham act.--The term ``Lanham Act'' means 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'').
(19) Nonauthoritative domain name server.--The term
``nonauthoritative domain name server'' means a server that
does not contain complete copies of domains but uses a cache
file that is comprised of previous domain name server lookups,
for which the server has received an authoritative response in
the past.
(20) Owner; operator.--The terms ``owner'' or ``operator'',
when used in connection with an Internet site, includes,
respectively, any owner of a majority interest in, or any
person with authority to operate, such Internet site.
(21) Payment network provider.--
(A) In general.--The term ``payment network
provider'' means an entity that directly or indirectly
provides the proprietary services, infrastructure, and
software to effect or facilitate a debit, credit, or
other payment transaction.
(B) Rule of construction.--For purposes of this
paragraph, a depository institution (as such term is
defined under section 3 of the Federal Deposit
Insurance Act) or credit union that initiates a payment
transaction shall not be construed to be a payment
network provider based solely on the offering or
provision of such service.
(22) Service provider.--The term ``service provider'' means
a service provider as defined in section 512(k)(1) of title 17,
United States Code, that operates a nonauthoritative domain
name system server.
(23) U.S.-directed site.--The term ``U.S.-directed site''
means an Internet site or portion thereof that is used to
conduct business directed to residents of the United States, or
that otherwise demonstrates the existence of minimum contacts
sufficient for the exercise of personal jurisdiction over the
owner or operator of the Internet site consistent with the
Constitution of the United States, based on relevant evidence
that may include whether--
(A) the Internet site is used to provide goods or
services to users located in the United States;
(B) there is evidence that the Internet site or
portion thereof is intended to offer or provide--
(i) such goods and services,
(ii) access to such goods and services, or
(iii) delivery of such goods and services,
to users located in the United States;
(C) the Internet site or portion thereof does not
contain reasonable measures to prevent such goods and
services from being obtained in or delivered to the
United States; and
(D) any prices for goods and services are indicated
or billed in the currency of the United States.
(24) United states.--The term ``United States'' includes
any commonwealth, possession, or territory of the United
States.
SEC. 102. ACTION BY ATTORNEY GENERAL TO PROTECT U.S. CUSTOMERS AND
PREVENT U.S. SUPPORT OF FOREIGN INFRINGING SITES.
(a) Definition.--For purposes of this section, a foreign Internet
site or portion thereof is a ``foreign infringing site'' if--
(1) the Internet site or portion thereof is a U.S.-directed
site and is used by users in the United States;
(2) the owner or operator of such Internet site is
committing or facilitating the commission of criminal
violations punishable under section 2318, 2319, 2319A, 2319B,
or 2320, or chapter 90, of title 18, United States Code; and
(3) the Internet site would, by reason of acts described in
paragraph (1), be subject to seizure in the United States in an
action brought by the Attorney General if such site were a
domestic Internet site.
(b) Action by the Attorney General.--
(1) In personam.--The Attorney General may commence an in
personam action against--
(A) a registrant of a domain name used by a foreign
infringing site; or
(B) an owner or operator of a foreign infringing
site.
(2) In rem.--If through due diligence the Attorney General
is unable to find a person described in subparagraph (A) or (B)
of paragraph (1), or no such person found has an address within
a judicial district of the United States, the Attorney General
may commence an in rem action against a foreign infringing site
or the foreign domain name used by such site.
(3) Notice.--Upon commencing an action under this
subsection, the Attorney General shall send a notice of the
alleged violation and intent to proceed under this section--
(A) to the registrant of the domain name of the
Internet site--
(i) at the postal and electronic mail
addresses appearing in the applicable publicly
accessible database of registrations, if any,
and to the extent such addresses are reasonably
available; and
(ii) via the postal and electronic mail
addresses of the registrar, registry, or other
domain name registration authority that
registered or assigned the domain name of the
Internet site, to the extent such addresses are
reasonably available; or
(B) to the owner or operator of the Internet site--
(i) at the primary postal and electronic
mail addresses for such owner or operator that
is provided on the Internet site, if any, and
to the extent such addresses are reasonably
available; or
(ii) if there is no domain name of the
Internet site, via the postal and electronic
mail addresses of the Internet Protocol
allocation entity appearing in the applicable
publicly accessible database of allocations and
assignments, if any, and to the extent such
addresses are reasonably available; or
(C) in any other such form as the court may
provide, including as may be required by rule 4(f) of
the Federal Rules of Civil Procedure.
(4) Service of process.--For purposes of this section, the
actions described in this subsection shall constitute service
of process.
(5) Relief.--On application of the Attorney General
following the commencement of an action under this section, the
court may issue a temporary restraining order, a preliminary
injunction, or an injunction, in accordance with rule 65 of the
Federal Rules of Civil Procedure, against a registrant of a
domain name used by the foreign infringing site or an owner or
operator of the foreign infringing site or, in an action
brought in rem under paragraph (2), against the foreign
infringing site or a portion of such site, or the domain name
used by such site, to cease and desist from undertaking any
further activity as a foreign infringing site.
(c) Actions Based on Court Orders.--
(1) Service.--A process server on behalf of the Attorney
General, with prior approval of the court, may serve a copy of
a court order issued pursuant to this section on similarly
situated entities within each class described in paragraph (2).
Proof of service shall be filed with the court.
(2) Reasonable measures.--After being served with a copy of
an order pursuant to this subsection, the following shall
apply:
(A) Service providers.--
(i) In general.--A service provider shall
take technically feasible and reasonable
measures designed to prevent access by its
subscribers located within the United States to
the foreign infringing site (or portion
thereof) that is subject to the order,
including measures designed to prevent the
domain name of the foreign infringing site (or
portion thereof) from resolving to that domain
name's Internet Protocol address. Such actions
shall be taken as expeditiously as possible,
but in any case within 5 days after being
served with a copy of the order, or within such
time as the court may order.
(ii) Limitations.--A service provider shall
not be required--
(I) other than as directed under
this subparagraph, to modify its
network, software, systems, or
facilities;
(II) to take any measures with
respect to domain name resolutions not
performed by its own domain name
server; or
(III) to continue to prevent access
to a domain name to which access has
been effectively disabled by other
means.
(iii) Construction.--Nothing in this
subparagraph shall affect the limitation on the
liability of a service provider under section
512 of title 17, United States Code.
(iv) Text of notice.--The Attorney General
shall prescribe the text of any notice
displayed to users or customers of a service
provider taking actions pursuant to this
subparagraph. Such text shall state that an
action is being taken pursuant to a court order
obtained by the Attorney General.
(B) Internet search engines.--A provider of an
Internet search engine shall take technically feasible
and reasonable measures, as expeditiously as possible,
but in any case within 5 days after being served with a
copy of the order, or within such time as the court may
order, designed to prevent the foreign infringing site
that is subject to the order, or a portion of such site
specified in the order, from being served as a direct
hypertext link.
(C) Payment network providers.--
(i) Preventing affiliation.--A payment
network provider shall take technically
feasible and reasonable measures, as
expeditiously as possible, but in any case
within 5 days after being served with a copy of
the order, or within such time as the court may
order, designed to prevent, prohibit, or
suspend its service from completing payment
transactions involving customers located within
the United States or subject to the
jurisdiction of the United States and the
payment account--
(I) which is used by the foreign
infringing site, or portion thereof,
that is subject to the order; and
(II) through which the payment
network provider would complete such
payment transactions.
(ii) No duty to monitor.--A payment network
provider shall be considered to be in
compliance with clause (i) if it takes action
described in that clause with respect to
accounts it has as of the date on which a copy
of the order is served, or as of the date on
which the order is amended under subsection
(e).
(D) Internet advertising services.--
(i) Required actions.--An Internet
advertising service that contracts to provide
advertising to or for the foreign infringing
site, or portion thereof, that is subject to
the order, or that knowingly serves advertising
to or for such site or such portion thereof,
shall take technically feasible and reasonable
measures, as expeditiously as possible, but in
any case within 5 days after being served with
a copy of the order, or within such time as the
court may order, designed to--
(I) prevent its service from
providing advertisements to or relating
to the foreign infringing site that is
subject to the order or a portion of
such site specified in the order;
(II) cease making available
advertisements for the foreign
infringing site or such portion
thereof, or paid or sponsored search
results, links, or other placements
that provide access to such foreign
infringing site or such portion
thereof; and
(III) cease providing or receiving
any compensation for advertising or
related services to, from, or in
connection with such foreign infringing
site or such portion thereof.
(ii) No duty to monitor.--An internet
advertising service shall be considered to be
in compliance with clause (i) if it takes
action described in that clause with respect to
accounts it has as of the date on which a copy
of the order is served, or as of the date on
which the order is amended under subsection
(e).
(3) Communication with users.--Except as provided under
paragraph (2)(A)(iv), an entity taking an action described in
this subsection shall determine the means to communicate such
action to the entity's users or customers.
(4) Enforcement of orders.--
(A) In general.--To ensure compliance with orders
issued pursuant to this section, the Attorney General
may bring an action for injunctive relief--
(i) against any entity served under
paragraph (1) that knowingly and willfully
fails to comply with the requirements of this
subsection to compel such entity to comply with
such requirements; or
(ii) against any entity that knowingly and
willfully provides or offers to provide a
product or service designed or marketed for the
circumvention or bypassing of measures
described in paragraph (2) and taken in
response to a court order issued pursuant to
this subsection, to enjoin such entity from
interfering with the order by continuing to
provide or offer to provide such product or
service.
(B) Rule of construction.--The authority granted
the Attorney General under subparagraph (A)(i) shall be
the sole legal remedy to enforce the obligations under
this section of any entity described in paragraph (2).
(C) Defense.--A defendant in an action under
subparagraph (A)(i) may establish an affirmative
defense by showing that the defendant does not have the
technical means to comply with this subsection without
incurring an unreasonable economic burden, or that the
order is not authorized by this subsection. Such
showing shall not be presumed to be a complete defense
but shall serve as a defense only for those measures
for which a technical limitation on compliance is
demonstrated or for such portions of the order as are
demonstrated to be unauthorized by this subsection.
(D) Definition.--For purposes of this paragraph, a
product or service designed or marketed for the
circumvention or bypassing of measures described in
paragraph (2) and taken in response to a court order
issued pursuant to this subsection includes a product
or service that is designed or marketed to enable a
domain name described in such an order--
(i) to resolve to that domain name's
Internet protocol address notwithstanding the
measures taken by a service provider under
paragraph (2) to prevent such resolution; or
(ii) to resolve to a different domain name
or Internet Protocol address that the provider
of the product or service knows, reasonably
should know, or reasonably believes is used by
an Internet site offering substantially similar
infringing activities as those with which the
infringing foreign site, or portion thereof,
subject to a court order under this section was
associated.
(5) Immunity.--
(A) Immunity from suit.--Other than in an action
pursuant to paragraph (4), no cause of action shall lie
in any Federal or State court or administrative agency
against any entity served with a copy of a court order
issued under this subsection, or against any director,
officer, employee, or agent thereof, for any act
reasonably designed to comply with this subsection or
reasonably arising from such order.
(B) Immunity from liability.--Other than in an
action pursuant to paragraph (4)--
(i) any entity served with a copy of an
order under this subsection, and any director,
officer, employee, or agent thereof, shall not
be liable for any act reasonably designed to
comply with this subsection or reasonably
arising from such order; and
(ii) any--
(I) actions taken by customers of
such entity to circumvent any
restriction on access to the foreign
infringing site, or portion thereof,
that is subject to such order, that is
instituted pursuant to this subsection,
or
(II) act, failure, or inability to
restrict access to a foreign infringing
site, or portion thereof, that is
subject to such order, in spite of good
faith efforts to comply with such order
by such entity,
shall not be used by any person in any claim or
cause of action against such entity.
(d) Modification or Vacation of Orders.--
(1) In general.--At any time after the issuance of an order
under subsection (b), a motion to modify, suspend, or vacate
the order may be filed by--
(A) any person, or owner or operator of property,
that is subject to the order;
(B) any registrant of the domain name, or the owner
or operator, of the Internet site that is subject to
the order;
(C) any domain name registrar, registry, or other
domain name registration authority that has registered
or assigned the domain name of the Internet site that
is subject to the order; or
(D) any entity that has been served with a copy of
an order pursuant to subsection (c) that requires such
entity to take action prescribed in that subsection.
(2) Relief.--Relief under this subsection shall be proper
if the court finds that--
(A) the foreign Internet site subject to the order
is no longer, or never was, a foreign infringing site;
or
(B) the interests of justice otherwise require that
the order be modified, suspended, or vacated.
(3) Consideration.--In making a relief determination under
paragraph (2), a court may consider whether the domain name of
the foreign Internet site has expired or has been re-registered
by an entity other than the entity that is subject to the order
with respect to which the motion under paragraph (1) is
brought.
(4) Intervention.--An entity required to take action
pursuant to subsection (c) if an order issues under subsection
(b) may intervene at any time in any action commenced under
subsection (b) that may result in such order, or in any action
to modify, suspend, or vacate such order under this subsection.
(e) Amended Orders.--The Attorney General, if alleging that a
foreign Internet site previously adjudicated in an action under this
section to be a foreign infringing site is accessible or has been
reconstituted at a different domain name or Internet Protocol address,
may petition the court to amend the order issued under this section
accordingly.
(f) Law Enforcement Coordination.--
(1) In general.--The Attorney General shall inform the
Intellectual Property Enforcement Coordinator and the heads of
appropriate law enforcement agencies of all court orders issued
under subsection (b), and all amended orders issued under
subsection (e), regarding foreign infringing sites.
(2) Alterations.--The Attorney General shall, and the
defendant may, inform the Intellectual Property Enforcement
Coordinator of the modification, suspension, expiration, or
vacation of a court order issued under subsection (b) or an
amended order issued under subsection (e).
SEC. 103. MARKET-BASED SYSTEM TO PROTECT U.S. CUSTOMERS AND PREVENT
U.S. FUNDING OF SITES DEDICATED TO THEFT OF U.S.
PROPERTY.
(a) Definitions.--In this section:
(1) Dedicated to theft of u.s. property.--An ``Internet
site is dedicated to theft of U.S. property'' if--
(A) it is an Internet site, or a portion thereof,
that is a U.S.-directed site and is used by users
within the United States; and
(B) either--
(i) the U.S.-directed site is primarily
designed or operated for the purpose of, has
only limited purpose or use other than, or is
marketed by its operator or another acting in
concert with that operator for use in, offering
goods or services in a manner that engages in,
enables, or facilitates--
(I) a violation of section 501 of
title 17, United States Code;
(II) a violation of section 1201 of
title 17, United States Code; or
(III) the sale, distribution, or
promotion of goods, services, or
materials bearing a counterfeit mark,
as that term is defined in section
34(d) of the Lanham Act or section 2320
of title 18, United States Code; or
(ii) the operator of the U.S.-directed
site--
(I) is taking, or has taken,
deliberate actions to avoid confirming
a high probability of the use of the
U.S.-directed site to carry out acts
that constitute a violation of section
501 or 1201 of title 17, United States
Code; or
(II) operates the U.S.-directed
site with the object of promoting, or
has promoted, its use to carry out acts
that constitute a violation of section
501 or 1201 of title 17, United States
Code, as shown by clear expression or
other affirmative steps taken to foster
infringement.
(2) Qualifying plaintiff.--The term ``qualifying
plaintiff'' means, with respect to a particular Internet site
or portion thereof, a holder of an intellectual property right
harmed by the activities described in paragraph (1) occurring
on that Internet site or portion thereof.
(b) Denying U.S. Financial Support of Sites Dedicated to Theft of
U.S. Property.--
(1) Payment network providers.--Except in the case of an
effective counter notification pursuant to paragraph (5), a
payment network provider shall take technically feasible and
reasonable measures, as expeditiously as possible, but in any
case within 5 days after delivery of a notification under
paragraph (4), that are designed to prevent, prohibit, or
suspend its service from completing payment transactions
involving customers located within the United States and the
Internet site, or portion thereof, that is specified in the
notification under paragraph (4).
(2) Internet advertising services.--Except in the case of
an effective counter notification pursuant to paragraph (5), an
Internet advertising service that contracts with the operator
of an Internet site, or portion thereof, that is specified in a
notification delivered under paragraph (4), to provide
advertising to or for such site or portion thereof, or that
knowingly serves advertising to or for such site or portion
thereof, shall take technically feasible and reasonable
measures, as expeditiously as possible, but in any case within
5 days after delivery the notification under paragraph (4),
that are designed to--
(A) prevent its service from providing
advertisements to or relating to the Internet site, or
portion thereof, that is specified in the notification;
(B) cease making available advertisements for such
Internet site, or portion thereof, that is specified in
the notification, or paid or sponsored search results,
links, or other placements that provide access to such
Internet site, or portion thereof, that is specified in
the notification; and
(C) cease providing or receiving any compensation
for advertising or related services to, from, or in
connection with such Internet site, or portion thereof,
that is specified in the notification.
(3) Designated agent.--
(A) In general.--Each payment network provider and
each Internet advertising service shall designate an
agent to receive notifications described in paragraph
(4), by making available through its service, including
on its Web site in a location accessible to the public,
and by providing to the Copyright Office, substantially
the following:
(i) The name, address, phone number, and
electronic mail address of the agent.
(ii) Other contact information that the
Register of Copyrights considers appropriate.
(B) Directory of agents.--The Register of
Copyrights shall maintain and make available to the
public for inspection, including through the Internet,
in electronic format, a current directory of agents
designated under subparagraph (A).
(4) Notification regarding internet sites dedicated to
theft of u.s. property.--
(A) Requirements.--Subject to subparagraph (B), a
notification under this paragraph is effective only if
it is a written communication that is provided to the
designated agent of a payment network provider or an
Internet advertising service and includes substantially
the following:
(i) A physical or electronic signature of a
person authorized to act on behalf of the
holder of an intellectual property right harmed
by the activities described in subsection
(a)(1).
(ii) Identification of the Internet site,
or portion thereof, dedicated to theft of U.S.
property, including either the domain name or
Internet Protocol address of such site, or
both.
(iii) Identification of the specific facts
to support the claim that the Internet site, or
portion thereof, is dedicated to theft of U.S.
property and to clearly show that immediate and
irreparable injury, loss, or damage will result
to the holder of the intellectual property
right harmed by the activities described in
subsection (a)(1) in the absence of timely
action by the payment network provider or
Internet advertising service.
(iv) Information reasonably sufficient to
establish that the payment network provider or
Internet advertising service is providing
payment processing or Internet advertising
services for such site.
(v) Information reasonably sufficient to
permit the payment network provider or Internet
advertising service to contact the holder of
the intellectual property right harmed by the
activities described in subsection (a)(1).
(vi) A statement that the holder of the
intellectual property right has a good faith
belief that the use of the owner's works or
goods in which the right exists, in the manner
described in the notification, is not
authorized by the holder, its agent, or law.
(vii) A statement that the information in
the notification is accurate, and, under
penalty of perjury, that the signatory is
authorized to act on behalf of the holder of
the intellectual property right harmed by the
activities described in subsection (a)(1).
(viii) Identification of the evidence
indicating that the site (or portion thereof)
is a U.S.-directed site.
(B) Service if no agent designated.--If a payment
network provider or Internet advertising service has
not designated an agent under paragraph (3), the
notification under subparagraph (A) may be provided to
any officer or legal representative of such provider or
service.
(C) Notice to internet site identified in
notification.--Upon receipt of an effective
notification under this paragraph, a payment network
provider or Internet advertising service shall take
appropriate steps to ensure timely delivery of the
notification to the Internet site identified in the
notification.
(5) Counter notification.--
(A) Requirements.--Subject to subparagraph (B), a
counter notification is effective under this paragraph
only if it is a written communication that is provided
to the designated agent of a payment network provider
or an Internet advertising service and includes
substantially the following:
(i) A physical or electronic signature of
the owner or operator of the Internet site, or
portion thereof, specified in a notification
under paragraph (4) subject to which action is
to be taken by the payment network provider or
Internet advertising service under paragraph
(1) or (2), or of the registrant of the domain
name used by such site or portion thereof.
(ii) In the case of an Internet site
specified in the notification under paragraph
(4) that is a foreign Internet site, a
statement that the owner or operator, or
registrant, consents to the jurisdiction of the
courts of the United States, and will accept
service of process from the person who provided
notification under paragraph (4), or an agent
of such person, for purposes of adjudicating
whether the site is an Internet site dedicated
to theft of U.S. property under this section.
(iii) A statement under penalty of perjury
that the owner or operator, or registrant, has
a good faith belief that it does not meet the
criteria of an Internet site dedicated to theft
of U.S. property as set forth under this
section.
(iv) The name, address, email address, and
telephone number of the owner, operator, or
registrant.
(B) Service if no agent designated.--If a payment
network provider or Internet advertising service has
not designated an agent under paragraph (3), the
counter notification under subparagraph (A) may be
provided to any officer or legal representative of such
provider or service.
(6) Misrepresentations.--Any provider of a notification or
counter notification who knowingly materially misrepresents
under this section--
(A) that a site is an Internet site dedicated to
the theft of U.S. property, or
(B) that such site does not meet the criteria of an
Internet site dedicated to the theft of U.S. property,
shall be liable for damages, including costs and attorneys'
fees, incurred by the person injured by such misrepresentation
as a result of the misrepresentation.
(c) Limited Injunctive Relief in Cases of Counter Notification.--
(1) In personam.--If an effective counter notification is
made under subsection (b)(5), or if a payment network provider
fails to comply with subsection (b)(1), or an Internet
advertising service fails to comply with subsection (b)(2),
pursuant to a notification under subsection (b)(4) in the
absence of such a counter notification, a qualifying plaintiff
may commence an in personam action against--
(A) a registrant of a domain name used by the
Internet site, or portion thereof, that is subject to
the notification under subsection (b)(4); or
(B) an owner or operator of the Internet site or
portion thereof.
(2) In rem.--If through due diligence a qualifying
plaintiff who is authorized to bring an in personam action
under paragraph (1) with respect to an Internet site dedicated
to theft of U.S. property is unable to find a person described
in subparagraphs (A) or (B) of paragraph (1), or no such person
found has an address within a judicial district of the United
States, the qualifying plaintiff may commence an in rem action
against that Internet site or the domain name used by such
site.
(3) Notice.--Upon commencing an action under this
subsection, the qualifying plaintiff shall send a notice of the
alleged activity described in subsection (a)(1) and intent to
proceed under this subsection--
(A) to the registrant of the domain name of the
Internet site, or portion thereof, that is the subject
to the notification under subsection (b)(4)--
(i) at the postal and electronic mail
addresses appearing in the applicable publicly
accessible database of registrations, if any,
and to the extent such addresses are reasonably
available; and
(ii) via the postal and electronic mail
addresses of the registrar, registry, or other
domain name registration authority that
registered or assigned the domain name of the
Internet site, or portion thereof, to the
extent such addresses are reasonably available;
(B) to the owner or operator of the Internet site,
or portion thereof--
(i) at the primary postal and electronic
mail addresses for such owner or operator that
are provided on the Internet site, or portion
thereof, if any, and to the extent such
addresses are reasonably available; or
(ii) if there is no domain name of the
Internet site or portion thereof, via the
postal and electronic mail addresses of the
Internet Protocol allocation entity appearing
in the applicable publicly accessible database
of allocations and assignments, if any, and to
the extent such addresses are reasonably
available; or
(C) in any other such form as the court may
prescribe, including as may be required by rule 4(f) of
the Federal Rules of Civil Procedure.
(4) Service of process.--For purposes of this section, the
actions described in this subsection shall constitute service
of process.
(5) Relief.--On application of a qualifying plaintiff
following the commencement of an action under this section with
respect to an Internet site dedicated to theft of U.S.
property, the court may issue a temporary restraining order, a
preliminary injunction, or an injunction, in accordance with
rule 65 of the Federal Rules of Civil Procedure, against a
registrant of a domain name used by the Internet site, or
against an owner or operator of the Internet site, or, in an
action brought in rem under paragraph (2), against the Internet
site, or against the domain name used by the Internet site, to
cease and desist from undertaking any further activity as an
Internet site dedicated to theft of U.S. property.
(d) Actions Based on Court Orders.--
(1) Service and response.--
(A) Service by qualifying plaintiff.--A qualifying
plaintiff, with the prior approval of the court, may
serve a copy of a court order issued under subsection
(c) on similarly situated entities described in
paragraph (2). Proof of service shall be filed with the
court.
(B) Response.--An entity served under subparagraph
(A) shall, not later than 7 days after the date of such
service, file with the court a certification
acknowledging receipt of a copy of the order and
stating that such entity has complied or will comply
with the obligations imposed under paragraph (2), or
explaining why the entity will not so comply.
(C) Venue for service.--A copy of the court order
may be served in any judicial district where an entity
resides or may be found.
(2) Reasonable measures.--After being served with a copy of
an order pursuant to this subsection, the following shall
apply:
(A) Payment network providers.--
(i) Preventing affiliation.--A payment
network provider shall take technically
feasible and reasonable measures, as
expeditiously as possible, but in any case
within 5 days after being served with a copy of
the court order, or within such time as the
court may order, that are designed to prevent,
prohibit, or suspend its service from
completing payment transactions involving
customers located within the United States or
subject to the jurisdiction of the United
States and any account--
(I) which is used by the Internet
site dedicated to theft of U.S.
property that is subject to the order;
and
(II) through which the payment
network provider would complete such
payment transactions.
(ii) No duty to monitor.--A payment network
provider is in compliance with clause (i) if it
takes action described in that clause with
respect to accounts it has as of the date of
service of the order, or as of the date of any
subsequent notice that its service is being
used to complete payment transactions described
in clause (i).
(B) Internet advertising services.--
(i) Required actions.--An Internet
advertising service that contracts with the
Internet site dedicated to theft of U.S.
property that is subject to the order to
provide advertising to or for such Internet
site, or that knowingly serves advertising to
or for such internet site, shall take
technically feasible and reasonable measures,
as expeditiously as possible, but in any case
within 5 days after being served with a copy of
the order, or within such time as the court may
order, that are designed to--
(I) prevent its service from
providing advertisements to or relating
to the Internet site;
(II) cease making available
advertisements for the Internet site,
or paid or sponsored search results,
links, or other placements that provide
access to the Internet site; and
(III) cease providing or receiving
any compensation for advertising or
related services to, from, or in
connection with the Internet site.
(ii) No duty to monitor.--An internet
advertising service is in compliance with
clause (i) if it takes action described in that
clause with respect to accounts it has as of
the date on which a copy of the order is
served, or as of the date of any subsequent
notice that its service is being used for
activities described in clause (i).
(3) Communication with users.--An entity taking an action
described in this subsection shall determine the means to
communicate such action to the entity's users or customers.
(4) Enforcement of orders.--
(A) Rule of construction.--The authority under this
subsection shall be the sole legal remedy to enforce
the obligations of any entity under this subsection.
(B) Procedures and relief.--
(i) Show cause order.--On a showing by the
qualifying plaintiff of probable cause to
believe that an entity served with a copy of a
court order issued under subsection (c) has not
complied with its obligations under this
subsection by reason of such court order, the
court shall require the entity to show cause
why an order should not issue--
(I) to require compliance with the
obligations of this subsection; and
(II) to impose an appropriate
monetary sanction, consistent with the
court's exercise of its equitable
authority, to enforce compliance with
its lawful orders, if the entity--
(aa) has knowingly and
willfully failed to file a
certification required by
paragraph (1)(B);
(bb) has filed such a
certification agreeing to
comply but has knowingly and
willfully failed to do so; or
(cc) has knowingly and
willfully certified falsely
that compliance with the
requirements of paragraph (2)
is not required by law.
(ii) Service of process.--The order to show
cause, and any other process, may be served in
any judicial district where the entity resides
or may be found.
(C) Defense.--An entity against whom relief is
sought under subparagraph (B) may establish an
affirmative defense by showing that the entity does not
have the technical means to comply with this subsection
without incurring an unreasonable economic burden, or
that the order is not authorized by this subsection.
Such showing shall not be presumed to be a complete
defense but shall serve as a defense only for those
measures for which a technical limitation on compliance
is demonstrated or for such portions of the order as
are demonstrated to be unauthorized by this subsection.
(5) Immunity.--
(A) Immunity from suit.--Other than in an action
pursuant to paragraph (4), no cause of action shall lie
in any Federal or State court or administrative agency
against any entity served with a copy of a court order
issued under subsection (c), or against any director,
officer, employee, or agent thereof, for any act
reasonably designed to comply with this subsection or
reasonably arising from such order.
(B) Immunity from liability.--Other than in an
action pursuant to paragraph (4)--
(i) any entity served with a copy of an
order under this subsection, and any director,
officer, employee, or agent thereof, shall not
be liable for any acts reasonably designed to
comply with this subsection or reasonably
arising from such order; and
(ii) any--
(I) actions taken by customers of
such entity to circumvent any
restriction on access to the Internet
site, or portion thereof that is
subject to such order, that is
instituted pursuant to this subsection,
or
(II) act, failure, or inability to
restrict access to an Internet site or
portion thereof that is subject to such
order, despite good faith efforts to
comply with such order by such entity,
shall not be used by any person in any claim or
cause of action against such entity.
(e) Modification or Vacation of Orders.--
(1) In general.--At any time after the issuance of an order
under subsection (c), or an amended order issued under
subsection (f), with respect to an Internet site dedicated to
theft of U.S. property, a motion to modify, suspend, or vacate
the order may be filed by--
(A) any person, or owner or operator of property,
that is subject to the order;
(B) any registrant of the domain name, or the owner
or operator, of such Internet site;
(C) any domain name registrar, registry, or other
domain name registration authority that has registered
or assigned the domain name of such Internet site; or
(D) any entity that has been served with a copy of
an order under subsection (d), or an amended order
under subsection (f), that requires such entity to take
action prescribed in that subsection.
(2) Relief.--Relief under this subsection shall be proper
if the court finds that--
(A) the Internet site subject to the order is no
longer, or never was, an Internet site dedicated to
theft of U.S. property; or
(B) the interests of justice otherwise require that
the order be modified, suspended, or vacated.
(3) Consideration.--In making a relief determination under
paragraph (2), a court may consider whether the domain name of
the Internet site has expired or has been re-registered by an
entity other than the entity that is subject to the order with
respect to which the motion under paragraph (1) is brought.
(4) Intervention.--An entity required to take action
pursuant to subsection (d) if an order issues under subsection
(c) may intervene at any time in any action commenced under
subsection (c) that may result in such order, or in any action
to modify, suspend, or vacate such order under this subsection.
(f) Amended Orders.--The qualifying plaintiff, if alleging that an
Internet site previously adjudicated in an action under this section to
be an Internet site dedicated to theft of U.S. property is accessible
or has been reconstituted at a different domain name or Internet
Protocol address, may petition the court to amend the order issued
under this section accordingly.
(g) Reporting of Orders.--
(1) In general.--The qualifying plaintiff shall inform the
Intellectual Property Enforcement Coordinator of any court
order issued under subsection (c) or amended order issued under
subsection (f).
(2) Alterations.--Upon the modification, suspension,
expiration, or vacation of a court order issued under
subsection (c) or an amended order issued under subsection (f),
the qualifying plaintiff shall, and the defendant may, so
inform the Intellectual Property Enforcement Coordinator.
SEC. 104. IMMUNITY FOR TAKING VOLUNTARY ACTION AGAINST SITES DEDICATED
TO THEFT OF U.S. PROPERTY.
No cause of action shall lie in any Federal or State court or
administrative agency against, no person may rely in any claim or cause
of action against, and no liability for damages to any person shall be
granted against, a service provider, payment network provider, Internet
advertising service, advertiser, Internet search engine, domain name
registry, or domain name registrar for taking any action described in
section 102(c)(2), section 103(d)(2), or section 103(b) with respect to
an Internet site, or otherwise voluntarily blocking access to or ending
financial affiliation with an Internet site, in the reasonable belief
that--
(1) the Internet site is a foreign infringing site or is an
Internet site dedicated to theft of U.S. property; and
(2) the action is consistent with the entity's terms of
service or other contractual rights.
SEC. 105. IMMUNITY FOR TAKING VOLUNTARY ACTION AGAINST SITES THAT
ENDANGER PUBLIC HEALTH.
(a) Refusal of Service.--A service provider, payment network
provider, Internet advertising service, advertiser, Internet search
engine, domain name registry, or domain name registrar, acting in good
faith and based on credible evidence, may stop providing or refuse to
provide services to an Internet site that endangers the public health.
(b) Immunity From Liability.--An entity described in subsection
(a), including its directors, officers, employees, or agents, that
ceases or refuses to provide services under subsection (a) shall not be
liable to any person under any Federal or State law for such action.
(c) Definitions.--In this section:
(1) Adulterated.--The term ``adulterated'' has the meaning
given that term in section 501 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 351).
(2) Internet site that endangers the public health.--The
term ``Internet site that endangers the public health'' means
an Internet site that is primarily designed or operated for the
purpose of, has only limited purpose or use other than, or is
marketed by its operator or another acting in concert with that
operator for use in--
(A) offering, selling, dispensing, or distributing
any prescription medication, and does so regularly
without a valid prescription; or
(B) offering, selling, dispensing, or distributing
any prescription medication that is adulterated or
misbranded.
(3) Misbranded.--the term ``misbranded'' has the meaning
given that term in section 502 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 352).
(4) Prescription medication.--
(A) Prescription medication.--The term
``prescription medication'' means a drug that is
subject to section 503(b) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 353(b)).
(B) Drug.--The term ``drug'' has the meaning given
that term in section 201(g)(1) of the Federal Food
Drug, and Cosmetic Act (21 U.S.C. 321(g)(1)).
(5) Valid prescription.--The term ``valid prescription''
has the meaning given that term in section 309(e)(2)(A) of the
Controlled Substances Act (21 U.S.C. 829(e)(2)(A)).
SEC. 106. GUIDELINES AND STUDY.
(a) Guidelines.--The Attorney General shall--
(1) provide appropriate resources and procedures for case
management and development to effect timely disposition of
actions brought under this title;
(2) develop a deconfliction process in consultation with
appropriate law enforcement agencies, including U.S.
Immigration and Customs Enforcement, to coordinate enforcement
activities under this title;
(3) publish procedures developed in consultation with
appropriate law enforcement agencies, including U.S.
Immigration and Customs Enforcement, to receive information
from the public relevant to the enforcement of this title; and
(4) provide guidance to intellectual property rights
holders about what information such rights holders should
provide to assist in initiating an investigation or to
supplement an ongoing investigation pursuant to this title.
(b) Study.--
(1) Nature of study.--The Register of Copyrights, in
consultation with appropriate departments and agencies of the
United States and other stakeholders, shall conduct a study on
the enforcement and effectiveness of this title and on any need
to amend the provisions of this title to adapt to emerging
technologies.
(2) Reports to congress.--Not later than 2 years after the
date of the enactment of this Act, the Register of Copyrights
shall submit to the Committees on the Judiciary of the House of
Representatives and the Senate a report containing the results
of the study conducted under this subsection and any
recommendations that the Register may have as a result of the
study.
SEC. 107. DENYING U.S. CAPITAL TO NOTORIOUS FOREIGN INFRINGERS.
(a) Identification and Recommendations Regarding Notorious Foreign
Infringers.--
(1) In general.--Using existing resources, the Intellectual
Property Enforcement Coordinator, in consultation with the
Secretaries of Treasury and Commerce, the United States Trade
Representative, the Chairman of the Securities and Exchange
Commission, and the heads of other departments and appropriate
agencies, shall identify and conduct an analysis of notorious
foreign infringers whose activities cause significant harm to
holders of intellectual property rights in the United States.
(2) Public input.--In carrying out paragraph (1), the
Intellectual Property Enforcement Coordinator shall solicit and
give consideration to the views and recommendations of members
of the public, including holders of intellectual property
rights in the United States.
(b) Report to Congress.--The Intellectual Property Enforcement
Coordinator shall, not later than 6 months after the date of the
enactment of this Act, submit to the Committees on the Judiciary of the
House of Representatives and the Senate a report that includes the
following:
(1) An analysis of notorious foreign infringers and a
discussion of how these infringers violate industry norms
regarding the protection of intellectual property.
(2) An analysis of the significant harm inflicted by
notorious foreign infringers on consumers, businesses, and
intellectual property industries in the United States and
abroad.
(3) An examination of whether notorious foreign infringers
have attempted to or succeeded in accessing capital markets in
the United States for funding or public offerings.
(4) An analysis of the adequacy of relying upon foreign
governments to pursue legal action against notorious foreign
infringers.
(5) A discussion of specific policy recommendations to
deter the activities of notorious foreign infringers and
encourage foreign businesses to adopt industry norms that
promote the protection of intellectual property globally,
including addressing--
(A) whether notorious foreign infringers that
engage in significant infringing activity should be
prohibited by the laws of the United States from
seeking to raise capital in the United States,
including offering stock for sale to the public; and
(B) whether the United States Government should
initiate a process to identify and designate foreign
entities from a list of notorious foreign infringers
that would be prohibited from raising capital in the
United States.
TITLE II--ADDITIONAL ENHANCEMENTS TO COMBAT INTELLECTUAL PROPERTY THEFT
SEC. 201. STREAMING OF COPYRIGHTED WORKS IN VIOLATION OF CRIMINAL LAW.
(a) Title 17 Amendments.--Section 506(a) of title 17, United States
Code, is amended to read as follows:
``(a) Criminal Infringement.--
``(1) In general.--Any person who willfully infringes a
copyright shall be punished as provided under section 2319 of
title 18, if the infringement was committed--
``(A) for purposes of commercial advantage or
private financial gain;
``(B) by the reproduction or distribution,
including by electronic means, during any 180-day
period, of 1 or more copies or phonorecords of 1 or
more copyrighted works, or by the public performance by
means of digital transmission, during any 180-day
period, of 1 or more copyrighted works, when the total
retail value of the copies or phonorecords, or of the
public performances, is more than $1,000; or
``(C) by the distribution or public performance of
a work being prepared for commercial dissemination, by
making it available on a computer network accessible to
members of the public, if such person knew or should
have known that the work was intended for commercial
dissemination.
``(2) Evidence.--For purposes of this subsection, evidence
of reproduction, distribution, or public performance of a
copyrighted work, by itself, shall not be sufficient to
establish willful infringement of a copyright.
``(3) Definition.--In this subsection, the term `work being
prepared for commercial dissemination' means--
``(A) a computer program, a musical work, a motion
picture or other audiovisual work, or a sound
recording, if, at the time of unauthorized distribution
or public performance--
``(i)(I) the copyright owner has a
reasonable expectation of commercial
distribution; and
``(II) the copies or phonorecords of the
work have not been commercially distributed in
the United States by or with the authorization
of the copyright owner; or
``(ii)(I) the copyright owner does not
intend to offer copies of the work for
commercial distribution but has a reasonable
expectation of other forms of commercial
dissemination of the work; and
``(II) the work has not been commercially
disseminated to the public in the United States
by or with the authorization of the copyright
owner;
``(B) a motion picture, if, at the time of
unauthorized distribution or public performance, the
motion picture--
``(i)(I) has been made available for
viewing in a motion picture exhibition
facility; and
``(II) has not been made available in
copies for sale to the general public in the
United States by or with the authorization of
the copyright owner in a format intended to
permit viewing outside a motion picture
exhibition facility; or
``(ii) had not been commercially
disseminated to the public in the United States
by or with the authorization of the copyright
owner more than 24 hours before the
unauthorized distribution or public
performance.''.
(b) Title 18 Amendments.--Section 2319 of title 18, United States
Code, is amended--
(1) in subsection (b)(1), by striking ``during any 180-day
period'' and all that follows and insert ``of at least 10
copies or phonorecords, or of at least 10 public performances
by means of digital transmission, of 1 or more copyrighted
works, during any 180-day period, which have a total retail
value of more than $2,500;'';
(2) in subsection (c)--
(A) in paragraph (1), by striking ``of 10 or more
copies or phonorecords'' and all that follows and
inserting ``including by electronic means, of at least
10 copies or phonorecords, or of at least 10 public
performances by means of digital transmission, of 1 or
more copyrighted works, during any 180-day period,
which have a total retail value of more than $2,500;'';
and
(B) in paragraph (3), by striking ``if the
offense'' and all that follows and inserting ``in any
other case;'';
(3) in subsection (d)(4), by striking ``under paragraph
(2)'' and inserting ``committed for purposes of commercial
advantage or private financial gain under subsection (a)'';
(4) in subsection (f)--
(A) by amending paragraph (2) to read as follows:
``(2) the terms `reproduction', `distribution', and `public
performance' refer to the exclusive rights of a copyright owner
under paragraphs (1), (3), (4), and (6), respectively, of
section 106 (relating to exclusive rights in copyrighted
works), as limited by sections 107 through 122, of title 17;
and'';
(B) in paragraph (3), by striking ``; and'' and
inserting a period; and
(C) by striking paragraph (4); and
(5) by adding at the end the following new subsection:
``(g) Evidence of Total Retail Value.--For purposes of this section
and section 506(a) of title 17, total retail value may be shown by
evidence of--
``(1) the total retail price that persons receiving the
reproductions, distributions, or public performances
constituting the offense would have paid to receive such
reproductions, distributions, or public performances lawfully;
``(2) the total economic value of the reproductions,
distributions, or public performances to the infringer or to
the copyright owner, as shown by evidence of fee, advertising,
or other revenue that was received by the person who commits
the offense, or that the copyright owner would have been
entitled to receive had such reproductions, distributions, or
public performances been offered lawfully; or
``(3) the total fair market value of licenses to offer the
type of reproductions, distributions, or public performances
constituting the offense.''.
(c) Rule of Construction.--Any person acting with a good faith
reasonable basis in law to believe that the person's conduct is lawful
shall not be considered to have acted willfully for purposes of the
amendments made by this section. Such person includes, but is not
limited to, a person engaged in conduct forming the basis of a bona
fide commercial dispute over the scope of existence of a contract or
license governing such conduct where such person has a reasonable basis
in law to believe that such conduct is noninfringing. Nothing in this
subsection shall affect the application or interpretation of the
willfulness requirement in any other provision of civil or criminal
law.
SEC. 202. TRAFFICKING IN INHERENTLY DANGEROUS GOODS OR SERVICES.
Section 2320 of title 18, United States Code, is amended as
follows:
(1) Subsection (a) is amended to read as follows:
``(1) In general.--
``(A) Offenses.--Whoever--
``(i) intentionally traffics or attempts to
traffic in goods or services and knowingly uses
a counterfeit mark on or in connection with
such goods or services,
``(ii) intentionally traffics or attempts
to traffic in labels, patches, stickers,
wrappers, badges, emblems, medallions, charms,
boxes, containers, cans, cases, hangtags,
documentation, or packaging of any type or
nature, knowing that a counterfeit mark has
been applied thereto, the use of which is
likely to cause confusion, to cause mistake, or
to deceive, or
``(iii) intentionally imports, exports, or
traffics in counterfeit drugs or intentionally
participates in or knowingly aids drug
counterfeiting,
shall, if an individual, be fined not more than
$2,000,000 or imprisoned not more than 10 years, or
both, and, if a person other than an individual, be
fined not more than $5,000,000.
``(B) Subsequent offenses.--In the case of an
offense by a person under this paragraph that occurs
after that person is convicted of another offense under
this paragraph, the person convicted, if an individual,
shall be fined not more than $5,000,000 or imprisoned
not more than 20 years, or both, and if other than an
individual, shall be fined not more than $15,000,000.
``(2) Serious bodily harm or death.--
``(A) Serious bodily harm.--If the offender
knowingly or recklessly causes or attempts to cause
serious bodily injury from conduct in violation of
paragraph (1), the penalty shall be, for an individual,
a fine of not more than $5,000,000 or imprisonment for
any term of years or for life, or both, and for other
than an individual, a fine of not more than
$15,000,000.
``(B) Death.--If the offender knowingly or
recklessly causes or attempts to cause death from
conduct in violation of paragraph (1), the penalty
shall be, for an individual, a fine of not more than
$5,000,000 or imprisonment for any term of years or for
life, or both, and for other than an individual, a fine
of not more than $15,000,000.
``(3) Military goods or services.--
``(A) In general.--A person who commits an offense
under paragraph (1) shall be punished in accordance
with subparagraph (B) if--
``(i) the offense involved a good or
service described in paragraph (1) that if it
malfunctioned, failed, or was compromised,
could reasonably be foreseen to cause--
``(I) serious bodily injury or
death;
``(II) disclosure of classified
information;
``(III) impairment of combat
operations; or
``(IV) other significant harm--
``(aa) to a member--
``(AA) of the Armed
Forces; or
``(BB) of a
Federal, State, or
local law enforcement
agency; or
``(bb) to national security
or critical infrastructure; and
``(ii) the person had knowledge that the
good or service is falsely identified as
meeting military standards or is intended for
use in a military or national security
application, or a law enforcement or critical
infrastructure application.
``(B) Penalties.--
``(i) Individual.--An individual who
commits an offense described in subparagraph
(A) shall be fined not more than $5,000,000,
imprisoned for not more than 20 years, or both.
``(ii) Person other than an individual.--A
person other than an individual that commits an
offense described in subparagraph (A) shall be
fined not more than $15,000,000.
``(C) Subsequent offenses.--
``(i) Individual.--An individual who
commits an offense described in subparagraph
(A) after the individual is convicted of an
offense under subparagraph (A) shall be fined
not more than $15,000,000, imprisoned not more
than 30 years, or both.
``(ii) Person other than an individual.--A
person other than an individual that commits an
offense described in subparagraph (A) after the
person is convicted of an offense under
subparagraph (A) shall be fined not more than
$30,000,000.''.
(2) Subsection (e) is amended--
(A) in paragraph (1), by striking the period at the
end and inserting a semicolon;
(B) in paragraph (3), by striking ``and'' at the
end;
(C) in paragraph (4), by striking the period at the
end and inserting a semicolon; and
(D) by adding at the end the following:
``(5) the term `counterfeit drug' has the meaning given
that term in section 201(g)(2) of the Federal Food Drug, and
Cosmetic Act (21 U.S.C. 321(g)(2));
``(6) the term `critical infrastructure' has the meaning
given that term in section 2339D(c);
``(7) the term `drug counterfeiting' means any act
prohibited by section 301(i) of the Federal Food Drug, and
Cosmetic Act (21 U.S.C. 331(i));
``(8) the term `final dosage form' has the meaning given
that term in section 735(4) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 379g(4));
``(9) the term `falsely identified as meeting military
standards' relating to a good or service means there is a
material misrepresentation that the good or service meets a
standard, requirement, or specification issued by the
Department of Defense, an Armed Force, or a reserve component;
``(10) the term `use in a military or national security
application' means the use of a good or service, independently,
in conjunction with, or as a component of another good or
service--
``(A) during the performance of the official duties
of the Armed Forces of the United States or the reserve
components of the Armed Forces; or
``(B) by the United States to perform or directly
support--
``(i) combat operations; or
``(ii) critical national defense or
national security functions; and
``(11) the term `use in a law enforcement or critical
infrastructure application' means the use of a good or service,
independently, in conjunction with, or as a component of,
another good or service by a person who is directly engaged
in--
``(A) Federal, State, or local law enforcement; or
``(B) an official function pertaining to critical
infrastructure.''.
SEC. 203. PROTECTING U.S. BUSINESSES FROM FOREIGN AND ECONOMIC
ESPIONAGE.
(a) For Offenses Committed by Individuals.--Section 1831(a) of
title 18, United States Code, is amended, in the matter after paragraph
(5)--
(1) by striking ``15 years'' and inserting ``20 years'';
and
(2) by striking ``not more than $500,000'' and inserting
``not less than $1,000,000 and not more than $5,000,000''.
(b) For Offenses Committed by Organizations.--Section 1831(b) of
such title is amended by striking ``$10,000,000'' and inserting ``not
more than the greater of $10,000,000 or 3 times the value of the stolen
trade secret to the organization (including expenses for research and
design or other costs of reproducing the trade secret that the
organization has thereby avoided)''.
SEC. 204. AMENDMENTS TO SENTENCING GUIDELINES.
Not later than 180 days after the date of the enactment of this
Act, pursuant to its authority under section 994(p) of title 28, United
States Code, the United States Sentencing Commission shall--
(1) review, and if appropriate, amend Federal Sentencing
Guidelines and policy statements applicable to persons
convicted of--
(A) intellectual property offenses;
(B) an offense under section 2320(a) of title 18,
United States Code; or
(C) an offense under section 1831 of title 18,
United States Code;
(2) in carrying out such review, consider amending such
Guidelines and policy statements to--
(A) apply an appropriate offense level enhancement
for intellectual property offenses committed in
connection with an organized criminal enterprise;
(B) apply an appropriate offense level enhancement
to the simple misappropriation of a trade secret;
(C) apply an additional appropriate offense level
enhancement if the defendant transmits or attempts to
transmit the stolen trade secret outside of the United
States and an additional appropriate enhancement if the
defendant instead commits economic espionage;
(D) provide that when a defendant transmits trade
secrets outside of the United States or commits
economic espionage, that the defendant should face a
minimum offense level;
(E) provide for an offense level enhancement for
Guidelines relating to the theft of trade secrets and
economic espionage, including trade secrets transferred
or attempted to be transferred outside of the United
States;
(F) apply an appropriate offense level enhancement
and minimum offense level for offenses under section
2320(a) of title 18, United States Code, that involve a
product intended for use in a military or national
security application, or a law enforcement or critical
infrastructure application;
(G) ensure that the Guidelines and policy
statements (including section 2B5.3 of the Federal
Sentencing Guidelines (and any successor thereto))
reflect--
(i) the serious nature of the offenses
described in section 2320(a) of title 18,
United States Code;
(ii) the need for an effective deterrent
and appropriate punishment to prevent offenses
under section 2320(a) of title 18, United
States Code; and
(iii) the effectiveness of incarceration in
furthering the objectives described in clauses
(i) and (ii); and
(H) ensure reasonable consistency with other
relevant directives and Guidelines and Federal
statutes;
(3) submit to Congress a report detailing the Commission's
actions with respect to each potential amendment described in
paragraph (2);
(4) make such conforming amendments to the Federal
Sentencing Guidelines as the Commission determines necessary to
achieve consistency with other Guideline provisions and
applicable law; and
(5) promulgate the Guidelines, policy statements, or
amendments provided for in this section as soon as practicable
in accordance with the procedure set forth in section 21(a) of
the Sentencing Act of 1987 (28 U.S.C. 994 note), as though the
authority under that Act had not expired.
SEC. 205. DEFENDING INTELLECTUAL PROPERTY RIGHTS ABROAD.
(a) Resources To Protect Intellectual Property Rights.--
(1) Policy.--The Secretary of State and the Secretary of
Commerce, in consultation with the Register of Copyrights,
shall ensure that the protection in foreign countries of the
intellectual property rights of United States persons is a
significant component of United States foreign and commercial
policy in general, and in relations with individual countries
in particular.
(2) Dedication of resources.--The Secretary of State and
the Secretary of Commerce, in consultation with the Register of
Copyrights, and the heads of other appropriate departments and
agencies, shall ensure that adequate resources are available at
the United States embassy or diplomatic mission (as the case
may be) in any country that is identified under section
182(a)(1) of the Trade Act of 1974 (19 U.S.C. 2242(a)(1)) to
ensure--
(A) aggressive support for enforcement action
against violations of the intellectual property rights
of United States persons in such country;
(B) cooperation with and support for the host
government's efforts to conform its applicable laws,
regulations, practices, and processes to enable the
host government to honor its international and
bilateral obligations with respect to the protection of
intellectual property rights;
(C) consistency with the policy and country-
specific priorities set forth in the most recent report
of USTR under such section 182(a)(1); and
(D) support for holders of United States
intellectual property rights and industries whose
access to foreign markets is improperly restricted by
intellectual property related issues.
(b) New Appointments.--
(1) Appointments and administration.--The Secretary of
State and the Secretary of Commerce, in consultation with the
Register of Copyrights, shall appoint at least one intellectual
property attache to be assigned to the United States embassy or
diplomatic mission (as the case may be) in a country in each
geographic region covered by a regional bureau of the
Department of State. The Director of the Patent and Trademark
Office shall maintain authority over hiring, personnel ratings,
and objectives for the attaches, in consultation with the
Secretary of State. Depending on experience and expertise,
intellectual property attaches shall be designated as the
diplomatic rank in-mission of First Secretary or Counselor.
(2) Regions defined.--The geographic regions referred to in
paragraph (1) are the following:
(A) Africa.
(B) Europe and Eurasia.
(C) East Asia and the Pacific.
(D) The Near East.
(E) South and Central Asia and the Pacific.
(F) The Western Hemisphere.
(3) Duties.--The intellectual property attaches appointed
under this subsection shall focus primarily on intellectual
property matters, including the development, protection, and
enforcement of applicable law. Each intellectual property
attache shall work, in accordance with guidance from the
Director, and in coordination with appropriate staff at the
Departments of Commerce and State and the Copyright Office, to
advance the policy goals and priorities of the United States
Government. Those policy goals and priorities shall be
consistent with USTR's reports under section 182(a)(1) of the
Trade Act of 1974. The intellectual property attaches shall
work with United States holders of intellectual property rights
and industry to address intellectual property rights violations
in the countries where the attaches are assigned.
(c) Priority Assignments.--
(1) In general.--Subject to paragraph (2), in designating
the United States embassies or diplomatic missions where
attaches will be assigned under subsection (b), the Secretary
of State and the Secretary of Commerce shall give priority to
countries where the activities of an attache are likely to
achieve the greatest potential benefit in reducing intellectual
property infringement in the United States market, to advance
the intellectual property rights of United States persons and
their licensees, and to advance the interests of United States
persons who may otherwise be harmed by violations of
intellectual property rights in those countries.
(2) Assignments to priority countries.--In carrying out
paragraph (1), the Secretary of State and the Secretary of
Commerce shall consider assigning intellectual property
attaches--
(A) to the countries that have been identified
under section 182(a)(1) of the Trade Act of 1974 (19
U.S.C. 2242(a)(1)); and
(B) to countries of critical economic importance to
the advancement of United States intellectual property
rights and interests.
(d) Training.--The Secretary of State and the Secretary of Commerce
shall ensure that each intellectual property attache appointed under
subsection (b) is fully trained for the responsibilities of the
position before assuming duties at the United States embassy or
diplomatic mission to which the attache is assigned.
(e) Coordination.--The activities of intellectual property attaches
under this section shall be determined in consultation with the
Intellectual Property Enforcement Coordinator. The Director shall
assist in coordinating the policy priorities and activities of the
intellectual property attaches and oversee administrative and personnel
matters.
(f) Training and Technical Assistance.--
(1) Consistency.--Using existing resources, all training
and technical assistance provided by intellectual property
attaches appointed under subsection (b), or under other
authority, relating to intellectual property enforcement and
protection abroad shall be designed to be consistent with the
policy and country-specific priorities set forth in the most
recent report of USTR under section 182(a) of the Trade Act of
1974.
(2) Role of ipec.--Such training and technical assistance
programs shall be carried out in consultation with the
Intellectual Property Enforcement Coordinator. The Director
shall assist in coordinating the training and technical
assistance programs conducted by intellectual property
attaches.
(g) Activities in Other Countries.--In the case of countries that
are not identified under section 182(a)(1) of the Trade Act of 1974,
the activities of Federal departments and agencies with respect to
intellectual property rights in those countries, intellectual property
programs and outreach of the United States Government in those
countries, and training and technical assistance programs of the United
States Government relating to intellectual property in those countries
may be conducted to the extent they are consistent with compelling
commercial or foreign policy interests of the United States.
(h) Reports to Congress.--The Intellectual Property Enforcement
Coordinator shall include in the annual report submitted under section
314 of the Prioritizing Resources and Organization for Intellectual
Property Act of 2008 (15 U.S.C. 8114) on the activities of the advisory
committee established under section 301 of that Act (15 U.S.C. 8111)
information on the appointment, designation for assignment, and
activities of all intellectual property attaches of any Federal
department or agency who are serving abroad.
(i) Definitions.--In this section:
(1) Director.--The terms ``Director of the Patent and
Trademark Office'' and ``Director'' mean the Under Secretary
for Intellectual Property and Director of the Untied States
Patent and Trademark Office.
(2) Intellectual property enforcement.--The term
``intellectual property enforcement'' has the meaning given
that term in section 302 of the Prioritizing Resources and
Organization for Intellectual Property Act of 2008 (15 U.S.C.
8112).
(3) Intellectual property enforcement coordinator.--The
term ``Intellectual Property Enforcement Coordinator'' means
the Intellectual Property Enforcement Coordinator appointed
under section 301 of the Prioritizing Resources and
Organization for Intellectual Property Act of 2008 (15 U.S.C.
8111).
(4) Intellectual property rights.--The term ``intellectual
property rights'' means the rights of holders of copyrights,
patents, trademarks, other forms of intellectual property, and
trade secrets.
(5) USTR.--The term ``USTR'' means the United States Trade
Representative.
(6) United states person.--The term ``United States
person'' means--
(A) any United States resident or national;
(B) any corporation, partnership, other business
entity, or other organization, that is organized under
the laws of the United States; and
(C) any foreign subsidiary or affiliate (including
any permanent foreign establishment) of any
corporation, partnership, business entity, or
organization described in subparagraph (B), that is
controlled in fact by such corporation, partnership,
business entity, or organization.
(j) Authorization of Appropriations.--The Secretary of State and
the Secretary of Commerce shall provide for the training and support of
the intellectual property attaches appointed under subsection (b) using
existing resources.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Referred to the Subcommittee on Intellectual Property, Competition and the Internet.
Committee Hearings Held.
Subcommittee on Intellectual Property, Competition and the Internet Discharged.
Committee Consideration and Mark-up Session Held.
Committee Consideration and Mark-up Session Held.
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