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Appendix
from the Senate bill. In many areas, the House bill borrows from the language and provisions of the
PROTECT IP Act. It also proposes different terms and definitions than the Senate bill, and as
originally introduced, it required rightsholders to attempt to obtain voluntary cooperation of
intermediaries by following the pre-suit notification procedures outlined in the bill before seeking
relief in the courts. It emphasizes targeting foreign websites, and provides additional and alternative
approaches to enforce U.S. rights against them.
The House Judiciary Committee’s Subcommittee on Intellectual Property, Competition and the
Internet held a hearing on H.R. 3261 on November 16, 2011.
The full House Committee on the Judiciary met on December 15 and 16, 2011 to consider the bill
and proposed amendments. Written transcripts for the markup sessions can be found at the House
Committee on the Judiciary’s web site. 10 A Manager’s Amendment was introduced, which removed
pre-suit notification provisions, as well as several other provisions that distinguished this bill from
the PROTECT IP Act.
During these markups, myriad amendments were proposed, most of which did not carry. On
January 13, 2012, Chairman Smith agreed to remove the DNS blocking provisions of SOPA. 11
III.
96
Discussion of Legislative Proposals Introduced in the House and Senate
A. Preventing Real Online Threats to Economic Creativity and Theft of Intellectual
Property Act of 2011 (“PROTECT IP Act”) (S. 968)
1. Introductory Sections
The first two sections offer a short title and definitions for terms used in the PROTECT IP Act. The
following are notable provisions:
First, the phrase “domain name” is defined separately from “nondomestic domain name.” The
former refers to “any alphanumeric designation, which is registered with or assigned by any …
domain name registration authority … .” The latter refers to domain names with both a Registry
Operator and Registrar that “are not located in the United States.” The reach of a particular PRO-
TECT IP Act section differs depending on which term is used.
Second, the phrase “Internet site dedicated to infringing activities” includes two distinct definitions.
The first identifies three types of Internet sites: (1) those that have “no significant use other
than engaging in, enabling or facilitating” copyright infringement (specifically the rights of
reproduction, distribution or public performance); (2) those that permit circumvention of copyright
technological protection measures; or (3) those engaged in “sale, distribution, or promotion of
goods, services, or materials bearing a counterfeit mark.” The second generally identifies Internet
sites that are “designed, operated … marketed [or] used, primarily as a means for engaging in,
enabling, or facilitating,” the three activities described above.
Third, the definition section differentiates among three types of Internet intermediaries: (1)
“Financial Transaction Providers,” a term defined in the Unlawful Internet Gambling Act; (2)
“Information Location Tools,” a term defined in the Digital Millennium Copyright Act; and (3)
“Internet Advertising Services,” a term coined in the PROTECT IP Act. There is a fourth type of
Internet intermediary identified—but not defined—in the Act, (4) “Operators” of “nonauthoritative
domain name system servers.”
It may help to think of these four types of Internet intermediaries by way of example. Visa is a
“financial transaction provider” because it is a “financial institution” that is “utilized to effect a
credit transaction…” 31 U.S.C. § 5362(4) (2012). Google and Yahoo! are “information location