1oz61wa

Civil Remedies
Most intermediaries are for-profit businesses with their own profit motives. Upon receiving a court
order, they are induced to take action to reduce their exposure. More often than not, that will mean
compliance with the order, if compliance is feasible and if non-compliance carries the risk of being
held in contempt of court or incurring a fine.
Making domestic intermediaries subject to court orders against Predatory Foreign Websites carries
a concomitant risk to their business interests. Legitimate foreign-based websites, seeking to
minimize business risk, could turn away from domestic intermediaries and toward foreign intermediaries,
knowing that foreign intermediaries cannot be compelled by U.S. court order. Moreover, it
is unlikely that intermediaries will undergo rigorous due-process analysis to protect the rights of
defendants—that costs time and money. Thus, safeguards need to be engineered into any legislation
to ensure that due process is accorded to foreign website operators.
a) Summary of Cases Involving Court Orders Compelling Intermediaries
Absent specific guidance from Congress about remedies for online piracy and counterfeiting,
courts have crafted individualized remedies to address each litigant’s individual sets of facts. Some
of these have required various intermediaries (as indicated in the table below) to undertake specific
obligations: 163
Case Fin. Advert. Search DNS . Website ISPs Shippers
Prov. Engines Reg Hosts and Carriers
Hermès ✓ ✓ ✓ ✓ ✓ ✓ ✓
Philip Morris ✓ ✓
True Religion ✓ ✓ ✓ ✓ ✓
Chanel v. Eukuk ✓ ✓
Deckers ✓ ✓
In some instances, these court orders have been issued on an ex parte basis, before notice was
provided to the defendants. 164
Because they are issued in response to a specific plaintiff’s requests, these court orders are generally
narrow in scope and require the intermediaries to provide notice to the overseas website to
which it provides services. 165
b) IPL Section Analysis and Recommendations regarding Court Orders Directed to
Various Types of Intermediaries
(1) Financial Providers
As discussed above, court orders have been used to require financial providers to freeze funds
obtained by counterfeiting or pirate websites, and indeed, have been used in cases such as True
Religion, 166 Philip Morris, 167 Deckers, 168 and Hermès. 169 Many financial providers already have
robust fraud filtering and detection systems, such as: PayPal, 170 Visa, 171 and MasterCard. 172
Financial providers have argued that any legislation requiring them to freeze a website’s assets
based on a determination that the website is a Predatory Foreign Website will place an additional
burden on these financial providers, thereby necessarily increasing their cost of doing business
with legitimate websites. “Given the large number of IP owners and infringing websites, and the
27