Combating Online Infringement and Counterfeits Act

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).

Section e provides that domains shall be blocked by DNRs.  That means that the DNR is legally required to block the IP. 

This is an interesting, read alarming bill.  It proposes that if an internet entity is allegedly engaged in what is already an illegal activity and punishable under the law can have their domain name blocked and thus be put out of business without a trial on the merits of the alleged infringement.

Common sense suggests that this proposal is at best illegal.  It proposes as a remedy a kind of prior restraint not on the offender but on domain name registration sites without a court hearing on the merits of the complaint.  It seems little more than yet another attempt by copyright holders to take punitive action without the burden of proving their complaint against an alleged infringement.  One is reminded of Viacom's recent litigation with YouTube wherein the court ruled in favor of YouTube.  Under this proposed bill YouTube would have been put out of business BEFORE the case was heard and Viacom LOST.

Copyrights are important to the protection of intellectual property to be sure.  But this is a very ill considered bill that attempts an end run around well established judicial processes.