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Civil Remedies
Finally, the alternative of pursuing litigation in the home country of a Predatory Foreign Website
can be very costly, time-consuming, and often futile given the absence of law (or judicial inclination
to enforce a law) that adequately protects the rights of copyright and trademark owners in the
relevant jurisdiction. Indeed, the absence of legal protection for copyright and trademark owners in
a particular country is often why the Predatory Foreign Website exists in that country.
E. Injunctive Relief against Intermediaries in Absence of Liability Finding
Given the relative lack of clarity as to whether intermediaries can be held liable for direct or
secondary infringement, it is worth considering whether, in the absence of such liability, there is a
legal basis to require the intermediary to take some action to stop or limit infringing conduct that
its services facilitate. As noted, in cases involving infringement committed directly or abetted by
Predatory Foreign Websites, the likelihood is low that any remedial order of judgment in the U.S.
will be effective against the site.
There are some bases under existing law whereby a court may have authority to order intermediaries
to take some remedial action, even if those intermediaries are not themselves subject to infringement
liability.
First, with respect to copyright, the text of the provision authorizing injunctive relief for copyright
violations is broadly worded and does not limit injunctive relief to parties found liable for infringement.
The statute provides that courts may “grant temporary and final injunctions on such
terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 134 While the
text of the statute thus may support the issuance of some form of injunction against a non-liable
third party, the decisional authority on this issue suggests that a party that is not liable for infringement
is not subject to the court’s equitable powers. 135
Second, there is authority (outside of the context of intellectual property disputes) for the general
proposition that a court may have authority to issue injunctions against parties who themselves are
not liable, provided that the injunctive measures are “necessary to grant complete relief” and their
effect on the non-liable party would be “minor and ancillary.” 136
Third, as noted, some courts have considered the propriety of injunctions against third-party
domain name registries in cybersquatting and trademark cases. In Chanel, Inc. v. Lin, 137 Chanel
sued to shut down various websites. The district court granted Chanel’s request that non-party toplevel
domain registries be required to remove the domains at issue from the Internet. The court
noted that although it had “expressed concern” over whether “it was appropriate to issue such an
order against a third party,” it was “persuaded that this remedy is authorized under 15 U.S.C. §116
and necessary to effectuate the purposes of the injunction in this case.” 138 And at least two courts
have issued injunctions in the cybersquatting and trademark context ordering several non-party
search engines and social media sites to de-index hundreds of infringing sites from their engines. 139
These orders appear to be form default orders submitted by the parties. It is unclear whether the
various intermediaries listed as subject to the injunctive provisions have complied with these
orders.
No court has yet considered this line of cases in the context of copyright infringement and intermediaries.
As discussed above with respect to contributory infringement and “simple measures,” a case
can be made that ISPs blocking DNS or IP addresses of infringing sites or search engines deindexing
search results is both “minor and ancillary,” and necessary to obtain “complete relief” in
the absence of any meaningful relief against the underlying infringing site itself.
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