The Protect IP Act1 is a proposed bill making its way through the Senate as S. 978 that aims to curb online counterfeiting, among other things. Congress is attempting again to pass legislation after COICA2 failed to pass during the previous session. While the Protect IP Act’s stated goals are beyond dispute —to prevent the online sale of counterfeit goods —the means toward achieving those goals remains ripe for debate.
The Protect IP Act uniquely authorizes both the attorney general and individual rights holders to bring a cause of action against the registrant of an Internet site dedicated to infringing activities (“Infringing Articles Site”),3 its owner/operator, or to proceed directly against the domain name in an in rem action. The in rem remedy aims to provide a tool in the arsenal of brand owners seeking to attack overseas websites, although the courts arguably already have these inherent powers under the Lanham Act.4
The Protect IP Act includes provisions that allow a plaintiff, once an order from the court is obtained, to serve the order on third party “Financial Transaction Providers,” preventing them from processing payments, originating in the United States, for the Infringing Site.5 Similarly, third party “Internet Advertising Services” can be served with the court’s order, forcing them to cease advertising on or on behalf of the Infringing Sites. Hitting the sites where revenue is produced is intended to have a deterrent effect.
In addition to taking revenue from Infringing Sites, Congress also seeks to take their Internet traffic away by providing the attorney general with the ability to serve orders on “Information Location Tools” that provide Domain Name Server (“DNS”) services6 and on search engines such as Google and Yahoo!. Once served, the Information Location Tool must remove or disable access to the Infringing Site associated with the domain name and/or remove from its web content the hypertext links to the Infringing Site.
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