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Legislative History (COICA, PIPA and SOPA)
tools” because their search engines may “link[] users to an online location containing infringing
material or infringing activity…” 17 U.S.C. § 512 (2012). Pay-per-click advertisers like Sedo and
keyword advertisers like Google are “internet advertising services” because they “sell” and “insert
… placement of advertisement[s]” that are “rendered in viewable form for any period of time on an
Internet site.” And domain name registrars, such as GoDaddy, can be “Operators” of
“nonauthoritative domain name system servers.”
Notably, the reference to “authoritative” versus “nonauthoritative” domain name servers is a
technical one, which has been explained by Maria A. Pallante, Register of Copyrights, as follows:
When a consumer tries to reach a website associated with a domain name, the consumer’s ISP
identifies and contacts the relevant registry associated with the requested domain name, such as
VeriSign for “.com” top-level domain names, because the registry controls the root name servers
that will direct Internet traffic to the correct website. The registry, in turn, directs the user to an
authoritative domain name server, which, in most circumstances, is the registrar of the specific
domain name. The registrar then sends the Internet user to the content identified by its customer,
the domain name registrant, which is housed on a specific server, identified by an IP address
connected with a particular domain name (or group of domain names). 12
Fourth, the term “qualifying plaintiff” is defined as either the Attorney General (“AG”) or “an
owner of an intellectual property right … harmed by the infringing activities of an Internet site…”
2. Substantive Sections
The third through fifth sections of the PROTECT IP Act contain its most important provisions.
Sections three and four create two independent federal causes of action to address “Internet sites
dedicated to infringing activities.” The first, under Section 3, may only be brought by the AG. The
second, under Section 4, may be brought either by the AG or by the private rightsholder.
Three important differences between Section 3 and Section 4 causes of action are evident:
• First, section three offers standing solely to the AG, whereas section four offers standing to
“qualified plaintiffs,” including the AG, intellectual property rights owners, or those
authorized to enforce such rights, who are harmed by infringing activities of an Internet site.
• Second, section three concerns only “nondomestic domain names” with both a Registry
Operator and Registrar that “are not located in the United States,” whereas section four
concerns all “domain names.”
• Third, section three allows the AG to have court orders served on four types of intermediaries,
whereas section four only allows “qualified plaintiffs” to have court orders issued to
two types of intermediaries. This raises the question, how did operators (registries) and
information location tools (search engines) escape accountability when the private rights
owner—rather than the AG—is granted an order by the court?
Section five contains two prongs that extend immunity for intermediaries taking voluntary action
against Internet sites dedicated to infringing activities.
• The first prong of section five immunizes Financial Transaction Providers and Internet
Advertising Services against monetary damages for disabling their services “based on
credible evidence” that the Internet site is dedicated to infringing activity.
• The second prong of section five immunizes all intermediaries against all liability for
disabling or refusing services to a site that “endangers public health”—including sites that
“offer, sell, dispense, or distribute” controlled or non-controlled prescription medication
that is either adulterated, misbranded or regularly offered without a valid prescription.
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