Senate Judiciary Committee Issues Report on PROTECT IP Act

by Christina Frangiosa


As previously reported in this Blog, Senator Leahy introduced on May 12, 2011, the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011” (S. 968) (the “PROTECT IP Act of 2011”). Just last week, Senator Leahy published the Committee’s Report on the Bill (S. Rep. 112-39, released July 22, 2011). In this Report, he explains why a legislative solution is necessary.

He identifies the “footwear, clothing, consumer electronics and pharmaceutical industries” as being frequent victims of such counterfeiting enterprises. S. Rep. at 3. He explains that “the music, motion picture, television, publishing and software industries” face continual threats from copyright infringement in the digital world. Id.

Indeed, the President and CEO of Rosetta Stone testified during the February 16, 2011 Judiciary Committee Hearing on this topic that pirated copies of the newest versions of Rosetta Stone software are made available through sites that at least facially appear legitimate, causing confused customers to purchase (essentially) defective software bearing Rosetta Stone’s name. Prepared Statement of Tom Adams, Feb. 16, 2011 at 2.

Author Scott Turow (speaking on behalf of the Authors’ Guild) testified that he published a new book in May of 2010, and within a week or two of its release, friends informed him that pirated copies of his book were available for sale online. Webcast of Scott Turow’s Tesimony is available through the Committee’s hearing notice. This type of counterfeiting poses not only additional costs on the authors/publishers, but can also cause physical harm to the customer if what is counterfeited is pharmaceutical, but yet is distributed bearing legitimate trademarks and other indicia of legitimacy.

The Committee Report summarized the various harms that result from this type of activity:

  • First, online infringement harms the content and trademark owners themselves in the form of lost sales, lost brand value, increased costs to protect their intellectual property, and decreased incentives to invest in research and development.
  • Second, online infringement harms consumers who receive lower quality products, inauthentic products, or, in a worst case scenario, products that cause physical harm or health risks.
  • Third, online infringement harms Federal and State Governments in the form of lost tax revenues, higher law enforcement costs, and the harm caused by the effects of the Government’s own purchase of counterfeit products.
  • Fourth, online infringement harms U.S. trade by lessening its ability to partner with countries that have weaker intellectual property enforcement regimes.21 Fifth, online infringement reduces the incentives to create and disseminate ideas which, as the United States Supreme Court has recognized, harms the free expression principles of the First Amendment.
  • Finally, as Victoria Espinel, U.S. Intellectual Property Enforcement Coordinator (IPEC), noted in a hearing before the Senate Committee on the Judiciary, online infringement supports international organized crime syndicates, which pose risks to our national security. 

S. Rep. at 5 (footnotes omitted).

While a large portion of the Bill relates to government action that can be taken by the Attorney General, the private right of action included in this Bill provides separate benefits to rightsholders, allowing them to enforce their rights, independent of any action that the government may take against the wrongdoer. This private right of action is more limited than the enforcement tools provided to the AG.

As the Committee Report explains, while the private right of action can extend to websites operating outside of the U.S., “the resulting remedies are more limited [than those reserved for the Justice Department]. A qualifying plaintiff may only seek the court’s permission to serve a court order resulting from an action brought under this provision on a payment processor or online advertising network. Neither a DNS operator nor a search engine can be required to take action as the result of an order issued under this provision.” Id. at 8. As a result, private rightsholders cannot use this process to require that web hosting companies or search engines disable access to the domain name when it is found to be a “rogue Internet site.”

Moreover, when court orders are served on third parties (such as payment processors or search engines), no ongoing duty on the part of the third-party – for instance, to ensure that the infringing domain does not pop up again under a different name at a later time – will be established. Id. at 9. Instead, the third-party’s obligations begin and end with the court order served upon it – even then, the third party is only required to comply to the extent such compliance is “technically feasible and reasonable.” Id. This safe harbor allows third parties to avoid significant expenses that might result from having on-going, extensive obligations to police against the re-appearance of these rogue sites when they resuscitate themselves after a successful enforcement action.

This Bill also limits the remedies that a qualifying plaintiff can seek against a third-party who “knowingly and willfully” fails to comply. Id. Specifically, actions to enforce the order at issue will be limited to requiring compliance with it – “These provisions do not open the door to fishing expeditions in the form of frivolous litigation brought simply to initiate broad discovery.” Id. Monetary damages are also not available in these situations.

Notably, the drafters did not intend the Bill to deter voluntary action by third parties to police their own networks for infringing or counterfeiting activity, nor does it intend to allow the Bill to act as a substitute for such voluntary action. Id. at 10.

Overall, the Bill would provide needed assistance to rightsholders to continue to fight the battle against infringement and counterfeiting. It is not a complete solution, however. Even Senators who support this Bill recognize that it’s only the first step – but an important one nonetheless. See Prepared Statement of Sen. Leahy, May 26, 2011 (“The PROTECT IP Act targets the most egregious actors, and is an important first step to putting a stop to online piracy and the sale of counterfeit goods.”).

Background

In general, this Bill provides a remedy both to the Attorney General and to certain private rights holders (“Qualified Plaintiffs,” as specifically defined) to combat copyright infringement and counterfeiting against websites whose primary purpose is infringement or counterfeiting. The statutory definitions make this a bill of somewhat limited application (not every infringement will qualify, nor will every infringer, involved third-party or level of conduct), but it undoubtedly would provide rightsholders with another tool in the toolbox to enforce their valuable copyright and trademark rights.

In effect, this Bill constitutes an amendment to the COICA bill introduced last session, which did not reach a floor vote in the Senate before the session ended. (More on the COICA bill and related hearings can be found here.)

Senators Hatch, Grassley, Schumer, Feinstein, Whitehouse, Graham, Kohl, Coons and Blumenthal co-sponsored the PROTECT IP Bill, which was referred to the Committee on the Judiciary on May 12. The Committee scheduled an executive business meeting on May 19, which was rescheduled for May 26 to consider the bill and to review proposed amendments. The Committee accepted both amendments and approved the bill unanimously by a voice vote. (The audio recording of the session – very short – can be found here: http://judiciary.senate.gov/webcast/5-26-11_Exec_Bus_Mtg.mp3. It also appears on the meeting announcement changing the date of the session to May 26.)

Following the announcement that the bill had passed the Committee on the Judiciary and was moving to the full Senate floor for consideration, Senator Wyden announced a hold on the motion to proceed to the bill, thus perhaps indefinitely tabling consideration of what seems to have been a substantial bi-partisan effort to combat a very real threat to American commerce.

The Bill has received both praise and criticism, with interest groups and other organizations going on record with their opinions about the Bill and its anticipated impact. (See my prior post for a short summary of some of the opinions that had already been made public before the Judiciary Committee voted on the bill on May 26. Undoubtedly, more groups have made their opinions public in the intervening months, but I have not searched since.)

Senate Judiciary Committee Hearing Tomorrow on IPEC Oversight

by Christina Frangiosa


The Senate Judiciary Committee has scheduled a hearing tomorrow entitled, “Oversight of Intellectual Property Law Enforcement Efforts” beginning at 10:00am in the Dirksen Senate Office Building.

The witness list includes: 

  • The Honorable Victoria A. Espinel, Intellectual Property Enforcement Coordinator, Office of Management and Budget
     
  • Jason Weinstein, Deputy Assistant Attorney General, Criminal Division,U.S. Department of Justice
     
  • Gordon M. Snow, Assistant Director, Cyber Division, Federal Bureau of Investigation
     
  • Allen Gina, Assistant Commissioner, Office of International Trade, U.S. Customs and Border Protection
     
  • Erik Barnett, Assistant Deputy Director, U.S. Immigration and Customs Enforcement 

The session is scheduled to be webcast, with a link to the broadcast available in the Committee’s hearing notice.

Redaction Failures Continue in Electronic Court Filings, Study Shows

by Christina Frangiosa


Timothy B. Lee, a graduate student for Princeton’s Center for Information Technology Policy, recently published the results of a study he conducted into litigants’ failure to adequately redact sensitive documents before uploading them to the various Court PACER systems. (PACER stands for Public Access to Court Electronic Records, and is available for most federal courts (see full list of participating courts.) As a means of attempting to address this problem, Mr. Lee has developed software (which he has released into the public domain through his article) that would permit courts to pre-screen PDF filings before they are accepted for the electronic court filing (ECF) system to determine if redactions were ineffectively made (and then bounce the filings back to the litigant for correction). He has also suggested that courts modify the software to create a tool for ECF users to pre-screen their own PDFs to confirm that redactions were made effectively before uploading them to the court’s public records.

Court Rules Require Redaction in Electronic Filing 

A court’s local rules may provide for redaction of certain sensitive information such as “personal identifiers as Social Security numbers, dates of birth, financial account numbers and names of minor children . . . .” U.S. District Court for the Eastern District of Pennsylvania, Local Rules of Civil Procedure 5.1.3; see also U.S. Court of Appeals for the Third Circuit, Privacy Policy. Litigants themselves may have other reasons to redact certain information – such as a need to keep competitively sensitive information, trade secrets or other information protected by a Protective Order, Non-Disclosure Agreement or Confidentiality Agreement from disclosure to the public.

Litigants Do Not Always Redact Effectively

Mr. Lee concludes that litigants and their counsel do not always comply with court rules for redacting sensitive information from documents to be filed with the Court. His article explains his research methodology in detail, and it’s worth reading the entire thing to get proper context for his analysis.

His research raises some important points – specifically, even though counsel may make a genuine attempt to redact certain information before uploading PDFs to the court’s ECF system, they aren’t always doing it correctly. It is simply not sufficient to redact text by applying black shading to it within the word processing program and then saving the file to PDF format. He identifies several examples in which he found black shaded boxes covering text, which on their surface might appeared to be a redaction, but this method allows someone to copy and paste the so-called “redacted text” into a new document, so that the text that the author hoped to keep secret would actually be revealed.

Tips for Redacting Completely

Mr. Lee recommends using the National Security Agency’s 2005 primer on secure redaction as a guideline to redacting effectively a document before making it public. See “Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF,” NSA, 12/13/2005 (provided by the Federation of American Scientists; note that a 2006 version of the document is available directly from NSA). Mr. Lee describes the safest approach: “completely deleting sensitive information in the original word processing document, replacing with innocuous filler (such as strings of XXes) as needed, and then converting it to a PDF document . . . .”

However, frequently, court filings are made at the last minute, in a rush, and replacing the sensitive information in a document with innocuous text before creating a redacted version may not work for all litigants. Sometimes, you have one round of redactions and immediately before filing, the decision is made to either unredact certain text or to redact more. It may be faster instead to use commercially available redaction tools (such as Adobe’s redaction tools – currently available in Adobe X Pro or Adobe X Suite) to create and edit the redactions in the PDF document itself up and until the time of filing. Adobe’s article on Redacting Sensitive Information using its tools is also worth reading.

Some courts have published guidelines for creating effective redactions in documents to be submitted for electronic court filing and ultimately, for public review. See, e.g. (in alphabetical order, by state), Southern District of Alabama’s Best Practices: Redaction of Information; Northern District of Arizona’s Effective Personal-Identity and Metadata Redaction Techniques for Subsequent E-Filing; Northern District of Indiana’s Notice of Redaction Responsibility; District of Maine’s A Guide to Proper Redaction of Documents; Minnesota District Court’s ECF Tips at page 7; Montana District Court’s Out of Sight, But Not Gone . . . ; New Jersey District Court’s Effective Personal-Identity and Metadata Redaction Techniques for E-Filing; Northern District of California’s ECF Tip: Avoid Inadvertent Disclosure of Redacted Material by Using Proper Redaction Technique.

Litigants and counsel are urged to review these suggestions and make smarter choices in their redaction practices.

Take Into Account Court Rules Requiring Text-Searchable PDFs

Some courts also require PDF documents to be submitted in “text-readable” or “text-searchable” format. See, e.g. District of Oregon’s Local Rule 100 (includes a provision that all PDFs be submitted in text-searchable format: “Attachments, or other documents not generated by the filing party’s word processing system which are scanned and then converted into a PDF file in preparation for electronic filing, should be run through an application (like an optical character recognition program (OCR)) to convert the contents into a text searchable PDF file. Exhibits which are primarily graphical do not have to be converted to text searchable documents.”).

Other jurisdictions merely indicate that a text-searchable PDF is “preferable” to an image-only PDF, in part because it takes up less storage space in the court’s records system. See, e.g. (in alphabetical order, by state), Middle District of North Carolina’s ECF Administrative Policies and Procedures Manual at page 3 of 27(“Although there are two types of PDF documents, electronically converted PDF’s and scanned PDF’s, for documents capable of electronic conversion only electronically converted PDF’s may be filed with the court using the ECF System, unless otherwise authorized by local rule or order.”) (emphasis in original); Northern District of Ohio Electronic Filing (“Documents should not be scanned unless they require an original signature or where the original itself is in paper format. The Court prefers that documents be converted rather than scanned because converted documents provide text search capabilities and greatly reduce the file size.”); Eastern District of Pennsylvania’s CM/ECF User Guide at page 2 (“Use a scanner ONLY if you cannot electronically prepare your documents.”); Utah District Court’s CM/ECF User Guide at page 5 (“Documents converted to PDF from Word, WordPerfect, or other word processing software are preferable, as converted documents are more easily readable and are text searchable.”); Eastern District of Wisconsin’s Portable Document Format (PDF) Guidelines at page 2 (“The Court recommends that you avoid scanning documents which originate with you. The direct software extraction methods usually provide better results.”).

For similar reasons, Mr. Lee does not recommend redacting a hard-copy document using a black marker and then scanning the document to PDF. While he concedes that this method works to remove the sensitive information from being viewed, blocked or copied, it also prevents the ability of the Court, other litigants and the public from blocking and copying non-secret text within a court-filed public document. Indeed, this type of copying is commonly when the Court wishes to refer to an excerpt of a litigant’s brief in its Order, but also when you are responding to a filing and need to refer to a long argument that your opponent has made – it’s simply easier and is less likely to introduce errors if you can copy and paste the cited portion. As Mr. Lee explains, “Although this may succeed in removing the sensitive information, we don’t recommend this approach because it effectively converts the document into a raster-based image, destroying useful information in the process.”

Bottom Line

Pay attention when you redact documents for public filing, and take a minute to try to block and copy that text that you think you’ve redacted to see whether the underlying text can be viewed. The pressure is always on for filing documents with the court as soon as possible when you’re under a deadline, but spending those extra few minutes to double check that you haven’t given away secret information is the smarter thing to do in the long-run.

Senate Judiciary Committee Marks Up S. 968 (PROTECT IP Act)

by Christina Frangiosa


Yesterday, the Senate Judiciary Committee held a business meeting which was scheduled for purposes of discussing certain nominations and markups to at least two bills: 1) S.968, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (“PROTECT IP Act”) (sponsored by Leahy, Hatch, Grassley, Kohl, Feinstein, Schumer, Graham, Whitehouse, Klobuchar, Franken, Coons, Blumenthal); and 2) S.978, A bill to amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes (Klobuchar, Cornyn, Coons). A discussion of S. 978 was held over until the next meeting.

The meeting was not open to the public and was not simulcast, but an audio file of the meeting is now available on the Committee’s site, along with the agenda. Senators Leahy and Franken have also published their prepared remarks on the Committee’s site.  (UPDATE:  A webcast of the Executive Business Meeting is now available on the site.)

During the meeting, Senators Leahy, Hatch and Grassley offered an amendment in the nature of a substitute, and Senators Leahy and Grassley offered an additional amendment. Both of these were made available on the Senate Judiciary Committee’s main site, although I imagine they will be moved at some point in the near future (once there is more current news to publish on the main site).

Both amendments passed the Senate Judiciary Committee on a 10-0 Voice Vote. Following the announcement that the Bill had passed the Senate Judiciary Committee, however, Senator Wyden announced a hold on the Bill, commenting that while “I understand and agree with the goal of the legislation, to protect intellectual property and combat commerce in counterfeit goods, . . . I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective.” An interesting article in Wired.com identifies the “hold” process as “rarely used” in the Senate, but effectively blocking the Bill from “landing” on the Senate floor.

Statements of several organizations on both sides of the fence on this issue can be found as follows (below are excerpts of the various statements, please click the links to their full statements to get complete context):

IN FAVOR

  • Microsoft, praising the Bill (5/26/11), issued before the amendments were reported, supports the Bill, but cautions: “Safeguards should be included to ensure that rogue sites are identified clearly and appropriately, and that the responsibilities of companies required to take action to ensure compliance are well defined and their liability appropriately limited. In addition, steps should be taken to ensure that the private right of action is not subject to abuse, and that the new actions and resulting orders do not stifle free speech or the free flow of information.” Brad Smith, General Counsel and Senior Vice President, Legal & Corporate Affairs, Microsoft also issued a statement in support of the Bill.
  • U.S. Chamber of Commerce’s Global Intellectual Property Center, praising the Bill (5/26/11), specifically stating: “Rogue sites and their operators contribute nothing to the U.S. economy. They do not innovate, they do not pay taxes, they do not follow safety standards, and they do not follow the law. Today’s vote serves as a wakeup call to those who illicitly profit at the expense of American businesses and consumers—the U.S. will not tolerate your careless, reckless, malicious behavior.”
  • Copyright Alliance, praising the Bill (5/26/11), specifically stating: “”The websites targeted by this legislation are draining income from American businesses and misleading consumers with their unregulated, unlicensed and unsafe practices. This bill provides much-needed tools for law enforcement to do its job and we urge the full Senate to consider it in the very near future.”
  • National Cable & Telecommunications Association, supporting the Bill (5/26/11), stating “By cracking down on rogue websites that have for too long encouraged the theft of valuable content and intellectual property, the PROTECT IP Act of 2011 sends a strong message that this illicit practice will no longer be tolerated.”
  • A group of entertainment professionals jointly issued a statement in support of the Bill, entitled, “Joint Statement from AFM, AFTRA, DGA, IATSE, IBT and SAG Commending Senate Judiciary Committee Passage of the PROTECT IP Act.” Representing “more than 400,000 entertainment industry workers including craftspeople, actors, technicians, directors, musicians, recording artists and others whose creativity is at the heart of the American entertainment industry,” the statement opines,
    • “[W]e believe the PROTECT IP Act is critical to efforts to aggressively combat the proliferation of foreign ‘rogue websites’ that steal US produced content and profit from it by illegally selling it to the American public. Let us be very clear: online theft is stealing. It results in thousands of lost jobs and millions of dollars in lost wages for our members. We reject the claims that shutting down illegal sites may somehow impact legitimate commercial websites. This bill clearly goes after illegal sites; legitimate and law abiding websites are not the target and we would hope that those who advocate against either of these bills are not condoning illegal activity on the Internet any more than they would condone illegal activity in their bank or grocery store. Today’s passage of the PROTECT IP Act is a significant step toward ending the ‘looting’ of the creative and artistic entertainment works that constitute our members’ hard work, and are an invaluable part of our collective cultural heritage.” (Emphasis added.)
    • The groups signing on to this Joint Statement are the American Federation of Musicians (AFM), American Federation of Television and Radio Artists (AFTRA), Directors Guild of America (DGA), International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada (IATSE), International Brotherhood of Teamsters (IBT) and Screen Actors Guild (SAG).
  • Another group in the entertainment industry (IFTA, NATO and MPAA) jointly supported the Bill, specifically stating, “By helping shut down rogue websites that profit from stolen films, television shows, and other counterfeit goods, this legislation will protect wages and benefits for the millions of middle class workers who bring America’s creativity to life.” (Specific quote was attributed to Michael O’Leary, MPAA).
    • According to the press release, this group includes the Independent Film & Television Alliance® (IFTA), the National Association of Theatre Owners (NATO), and the Motion Picture Association of America, Inc. (MPAA)
  • The American Apparel and Footwear Association, supporting the Bill (5/26/11), states “While the current PROTECT IP Act is a significant improvement over previous attempts at legislation to shut down rogue Web sites that sell counterfeit goods, the U.S. apparel and footwear industry believes this bill can be made stronger. We are pleased that language has been included to allow law enforcement the ability to share information with rightsholders.”

OPPOSED

  • Center for Democracy and Policy (CDT), opposing the Bill (5/26/11), but noting that improvements were made during the markup session on May 26: “CDT has expressed its concern with this approach, and particularly with the portions of the bill that try to use the domain name system (DNS) to control ‘rogue websites,’ in previous blog posts and congressional testimony. The Committee today made a few modest but generally positive changes, such as improving transparency via annual oversight reports and tightening some language designed to prevent the bill from undermining the crucial copyright liability “safe harbor” under section 512 of the DMCA. But CDT’s core concerns remain.” (Internal hyperlinks omitted)
    • CDT published a letter sent by public interests groups on 5/25/11 to the Judiciary Committee, expressing concern with the Bill. The signatories were the American Association of Law Libraries, Association of College and Research Libraries, American Library Association, Association of Research Libraries, Center for Democracy and Technology, Demand Progress, EDUCAUSE, Electronic Frontier Foundation, Human Rights Watch, Rebecca MacKinnon, Bernard Schwartz Senior Fellow, New America Foundation, Public Knowledge, Reporters sans frontières / Reporters Without Borders and Special Libraries Association.
    • CDT published another letter sent by Internet and payment system companies on 5/25/11 to the Judiciary Committee, objecting to the creation of a private right of action included in the Bill. The signatories were American Express Company, Consumer Electronics Association, Discover, Visa, PayPal, NetCoalition, Yahoo!, eBay and Google.
    • CDT also published a letter sent by various trade associations on 5/25/11 to the Judiciary Committee, expressing concerns about the definition of “dedicated to infringing activities,” application to search engines, creation of a private right of action and DNS blocking. Signatories were Computer and Communications Industry Association (CCIA), Consumer Electronics Association (CEA) and NetCoalition.
  • Public Knowledge, opposing the Bill (5/26/11), specifically stating: “We are disappointed that the Senate Judiciary Committee today approved legislation (S. 968) that will threaten the security and global functioning of the Internet, and opens the door to nuisance lawsuits while doing little if anything to curb the issues of international source of illegal downloads the bill seeks to address.”  Public Knowledge also published a paper entitled, “Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill” (May 2011).
  • Google appears to oppose the Bill (according to an article appearing in The Guardian (UK), but I was unable to find a formal press release to that effect. See “Google boss: anti-piracy laws would be disaster for free speech,” The Guardian, May 18, 2011 (i.e., before the measure passed the Senate Judiciary Committee). Note that they signed on to one of the 5/25/11 letters that CDT posted to its site (referenced above).

New Version of Online Counterfeiting and Infringement Bill Proposed

by Christina Frangiosa


On Thursday, May 12, Senators Leahy (D-VT), Hatch (R-UT), Grassley (R-IA), Schumer (D-NY), Feinstein (D-CA), Whitehouse (D-RI), Graham (R-SC), Kohl (D-WI), Coons (D-DE) and Blumenthal (D-CT) introduced a new version of the COICA bill, this time called the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011” (or, the PROTECT IP Act of 2011). As of this writing, a copy of the bill bearing the number has not yet been posted, although I have been informed that it will be numbered S. 968. (Thomas currently only provides access to bills S. 1 through S. 943.)

According to Senator Leahy’s press release, this bill provides:

  • A narrower definition of an Internet site “dedicated to infringing activities”;
  • Authorization for the Attorney General to serve an issued court order on a search engine, in addition to payment processors, advertising networks and Internet service providers;
  • Authorization for both the Attorney General and rights holders to bring actions against online infringers operating an internet site or domain where the site is “dedicated to infringing activities,” but with remedies limited to eliminating the financial viability of the site, not blocking access;
    • [Note: this is the so-called “private right of action” but appears to try to take into account the concerns expressed about avoiding restrictions on free speech rights]
  • Requirement of plaintiffs to attempt to bring an action against the owner or registrant of the domain name used to access an Internet site “dedicated to infringing activities” before bringing an action against the domain name itself;
    • [Note: this provision in the bill may actually contain a typographical error. As written, this section states that only after a private rights holder attempts to bring a civil action against the owner, then the Attorney General may bring an action against the domain name. I think this was supposed to authorize the private rights holder to take the “in rem” action, since the Attorney General’s ability to bring an “in rem” action is codified in the preceding section.]
  • Protection for domain name registries, registrars, search engines, payment processors, and advertising networks from damages resulting from their voluntary action against an Internet site “dedicated to infringing activities,” where that site also “endangers the public health,” by offering controlled or non-controlled prescription medication. 
    • [Note: This is one so-called “Safe Harbor” that witnesses representing GoDaddy and Visa requested for those private companies involved in the Internet ecosystem who try to prevent some of the bad actors from achieving profits in the U.S. market. It may not go as far as those witnesses requested, however, in that it is limited to counterfeit pharmaceuticals and dangerous goods.]

Senator Leahy also describes the purposes of the bill and republishes his statement on the floor to introduce the bill. He summarizes the ultimate point in this legislation:

“This legislation will provide law enforcement and rights holders with an increased ability to protect American intellectual property.  This will benefit American consumers, American businesses, and American jobs.  We should not expect that enactment of the legislation will completely solve the problem of online infringement, but it will make it more difficult for foreign entities to profit off American hard work and ingenuity.   This bill targets the most egregious actors, and is an important first step to putting a stop to online piracy and sale of counterfeit goods.”
 

Senator Grassley has posted a similar press release (although it does not include the same “summary of the bill” section that Senator Leahy’s does).

It remains to be seen how the bill will be received, and whether stakeholders believe that this version adequately addresses some of the criticisms of the prior bill that were raised during a Senate Hearing in February, and two House Hearings in March and April. (More on those hearings can be found in prior posts about the COICA bill.)

As of this writing, the House has not introduced a companion bill, but given its recent hearings on the topic, such a companion bill is expected in the near future.