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Civil Remedies
By way of further clarification, this White Paper does not attempt to pull within the definition of
“Predatory Foreign Websites” any sites that are already subject to U.S. jurisdiction under existing
U.S. law or other treaty obligations, and specifically excludes those sites from this analysis.
a) Predatory Foreign Websites engaged in Copyright Infringement
Consider a website hosting pirated copyrighted content. It is based abroad, in a locale where the
government is not friendly to U.S. intellectual property interests. The website uses a foreign
domain. What remedies are available to stop this pirated copyrighted material? What remedies
should be available?
Remedying foreign-based copyright piracy is difficult and there are no easy solutions. A promising
approach involves following the money. 3 If the flow of money to these Predatory Foreign Websites
dries up, the expectation is that the websites themselves may cease operations.
Predatory Foreign Websites generate revenue primarily in two ways: selling advertising and selling
access to pirated content. 4 Both of these revenue streams can be closed by providing a standardized
means for rightsholders to seek court orders requiring advertising services and payment providers
to stop accepting payments from, or issuing payments to, these sites.
Unfortunately, providing a mechanism for rightsholders to cut off a Predatory Foreign Website’s
access to revenue does not address the problem of Predatory Foreign Websites that operate entirely
for free; for example, a website that distributes pirated content without fee or advertising. Such
sites may yet still make a significant impact on the market for legitimately acquired copyrighted
works. Because there is no money to follow, a “follow the money” strategy would not address these
sites. For Predatory Foreign Websites that do not rely on revenue from U.S. intermediaries, 5 technical
solutions, though controversial, are available.
One technical solution would require U.S. ISPs to block their users’ access to such sites through
techniques such as DNS blocking or IP address blocking. 6 Though such techniques are expressly
provided for under U.S. copyright law 7 and are used in a number of jurisdictions outside the U.S., 8
they have generated significant Internet security 9 and First Amendment concerns. 10
Another technical solution would require search engines to cease indexing and returning search
results from such sites, upon notification by a rights-holder or otherwise. Many of the same First
Amendment concerns raised in response to the site-blocking provisions of PIPA/SOPA were also
raised with regard to the bills’ provisions on search engine de-indexing, 11 although there were some
voices who opposed site-blocking but supported de-indexing, at least under some conditions. 12
To date, the IPL Section has not reached consensus on either of these technical solutions, or any
other potential remedy that addresses sites that do not receive revenue from U.S. intermediaries.
Consequently, the balance of this White Paper will solely address sites that receive revenue from
U.S. intermediaries.
What about websites that might have legitimate content alongside pirated content? Ideally,
narrowly targeted remedies would focus on only addressing money made from pirated content,
leaving legitimate aspects of a website untouched. However it is impractical, if not impossible, to
identify which revenues earned by a site (e.g., advertising or subscription income) are derived from
the lawful, as opposed to the unlawful, content available on the site. Moreover, proponents
recognized the line-drawing difficulties associated with triggering enforcement mechanisms
against sites with substantial quantities of legitimate content. For both reasons, prior legislation
introduced to combat Predatory Foreign Websites has focused only on near-total piracy on com-
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